FILED

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J, Case 1:02-cv-02307-JG-SMG Document 1 Filed 0u4.s/1. 7c/i20~0~2~lGPatgIel1SoQf N39I

CENTER FOR CONSTITUTIONAL RIGHTS Barbara J. Olshansky (BO 3635) Nancy Chang (NC 5331) William Goodman (WG 1241) Jennifer Green (JG 3169)

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Robert T. Perry (RP 1199)

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6439 or 614-6420

UNITED STATES DISTRICT COURT
E__A__S__T__E__R__N___D__I_S__:_r_R__I_C__T__O__F___N__E__W____Y__O__R__K______---------x
IBRAHIM TURKMEN; ASIF-UR-REHMAN SAFFI; and SYED AMJAD ALI JAFFRI, on behalf of themselves and all others similarly situated,

CV-02-_0

Plaintiffs,

- against -
JOHN ASHCROFT, Attorney General of the United States; ROBERT MUELLER, Director, Federal Bureau ofInvestigations; JAMES W. ZIGLAR, Commissioner, Immigration and Naturalization Service; DENNIS HASTY, Warden, : Metropolitan Detention Center; and JOHN DOES 1-10, MDC Corrections Officers,

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

______________________________________________D__e__f_e_n_d_-a-n--ts--.---x

Plaintiffs Ibrahim Turkmen, Asif-ur-Rehman Saffi, and Syed Amjad Ali Jaffri, by and through their attorneys, the Center for Constitutional Rights, allege the following:
NATURE OF ACTION I. Plaintiffs bring this class action on behalf of themselves and other male, Muslim non-citizens from the Middle East, South Asia, and elsewhere arrested and detained after the September II, 200 I terrorist attacks on the United States who, despite receiving final deportation

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orders or grants of voluntary departure, have been held in immigration custody far beyond the period necessary to secure their removal from the United States.
2. As a matter of policy and practice, Defendants have kept Plaintiffs and other class members in custody long after they have received final removal or voluntary departure orders, not for any legitimate immigration law enforcement purpose, but to incarcerate them while law enforcement authorities sought to determine - without probable cause - whether they had any ties to terrorism. Instead of being presumed innocent until proven guilty, the post-9!II detainees have been presumed guilty of terrorism until proven innocent to the satisfaction of law enforcement authorities. In adopting, promulgating, and implementing this policy, Defendants John Ashcroft, Robert Mueller, James Ziglar, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the Fourth, Fifth, and Sixth Amendments to the United States Constitution, customary international and treaty law.
3. While in detention, Plaintiffs and class members have been subjected to unreasonable and excessively harsh conditions. Like Plaintiff Turkmen, many have been held in overcrowded county jail facilities and housed with potentially dangerous criminal pretrial detainees, even though they themselves have never been charged with a crime. Like Plaintiffs Saffi and Jaffri, others have been kept in federal facilities, such as the Metropolitan Detention Center ("MDC") in Brooklyn, New York, where they have been placed in tiny, windowless cells for over 23 hours a day and body cavity strip-searched, manacled, and shackled whenever they have been taken out of their cells. Like Plaintiffs Saffi and Jaffri, many class members have suffered physical and verbal abuse by their guards. Some have been badly beaten. Like all three Plaintiffs, many class members have also been denied the ability to practice their faith during
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their detention. By subjecting Plaintiffs and class members to umeasonable and excessively harsh conditions and penalizing them for the practice of their faith, Defendants Ashcroft, Mueller, Ziglar, Hasty, and John Does 1-10, MDC corrections officers, have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members under the First, Fourth, and Fifth Amendments to the United States Constitution, and under customary international and treaty law.
4. Like Plaintiffs Turkmen and Saffi, during their detention many class members have been repeatedly interrogated by both the Immigration and Naturalization Service ("INS") and the Federal Bureau ofInvestigation ("FBI") agents in the absence of counsel. Indeed, large numbers have not been told - prior to or during their interrogations - of their statutory right to counsel in immigration proceedings or their constitutional right to counsel in criminal proceedings. Others have been coerced to waive that right, even though they cannot read the printed English language on the waiver forms which they are instructed to sign, and even though they do not fully understand the nature of the right being waived. By adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, and Ziglar, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members under the First, Fifth, and Sixth Amendments to the United States Constitution.
5. In detaining Plaintiffs and class members far beyond the time necessary to effectuate their removal, Defendants Ashcroft, Mueller, Ziglar, and others, have also engaged in racial, religious, ethnic, andlor national origin profiling. Plaintiffs' and class members' race, religion, ethnicity, or national origin has played a determinative role in Defendants' decision to detain them initially, and then to keep them detained beyond the point at which removal could
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have been effectuated.

6. Plaintiffs seek a class-wide judgment declaring the above-described policies and

practices unlawful and unconstitutional. Plaintiffs further seek compensatory and punitive

damages for themselves and all class members, and an award of costs and reasonable attorneys'

fees.

JURISDICTION AND VENUE

7. This action is brought pursuant to the First, Fourth, Fifth, and Sixth Amendments

to the United States Constitution and customary international human rights law and treaty law as

incorporated into federal common law.

8.

This Court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction)

and 28 U.S.C. §§ 2201 and 2202 (the Declaratory Judgment Act), and 28 U.S.C. § 1350 (the

Alien Tort Claims Act).

9. Venue is proper in the United States District Court for the Eastern District of New

York pursuant to 28 U.S.C. § 1391 (b) in that a substantial part of the events giving rise to

Plaintiffs' claims occurred in this District.

JURY DEMAND

10. Plaintiffs demand trial by jury in this action on each and every one of their claims.

PARTIES

II. Plaintiff IBRAHIM TURKMEN is a native and citizen of Turkey, where he lives

with his wife and four daughters. A Muslim Imam by profession, Mr. Turkmen came to the

United States on October 4,2000, on a six-month tourist visa, which expired on April 4, 2001.

He decided to remain in this country after the expiration of his visa to provide for his family, his

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wife and four young daughters. On October 13,2001, Mr. Turkmen was arrested and detained by the INS without being charged with any immigration or criminal law violation. A week or so later, he was formally charged with overstaying his visa. No other charge was ever filed against Mr. Turkmen by federal, state or local authorities. He has no criminal record either in this country or in any other country.
12. On October 31, 2001, 18 days after his arrest, Mr. Turkmen accepted a voluntary departure order, after an Immigration Judge assured him that he could shortly return to Turkey. Even though the INS could have secured his removal from the United States within a matter of days and even though there was no probable cause to believe that he had any involvement in the September 11 th terrorist attacks, Mr. Turkmen was detained for another four months, until February 25, 2002, solely on the remote possibility that law enforcement authorities might someday connect him to terrorist activity. Defendants made no effort to justify this detention by establishing probable cause of criminal activity. Mr. Turkmen has never been involved with terrorists, terrorist organizations or terrorist activities. Indeed, he abhors terrorism.
13. While detained by the INS, Mr. Turkmen was incarcerated in the Passaic County Jail in Paterson, New Jersey ("Passaic"), where he was: (a) placed in a severely overcrowded dormitory; (b) housed with potentially dangerous criminal pretrial detainees; (c) periodically exposed to fierce and menacing K-9 unit dogs; (d) routinely denied Hallal food required by his religion; and (e) deliberately prevented from observing certain mandatory religious practices.
14. Plaintiff ASIF-UR-REHMAN SAFFI is a native of Pakistan and a citizen of France, where he currently lives with his wife and three children. An employee of Pakistan International Airlines for the past 19 years, Mr. Saffi came to the United States on July 6, 2001
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on a three-month tourist visa. After visiting family and friends in Los Angeles, he flew to New York City to see other friends. While in New York City, Mr. Saffi earned a modest sum of money doing computer work and data processing. Mr. Saffi was arrested and detained by the INS on September 30, 2001, shortly before his visa expired. He was subsequently charged with working in the United States without authorization. No other charges were ever filed against Mr. Saffi by federal, state or local authorities. He has no criminal record in this country or in any other country.
15. On October 17, 2001, 17 days after his arrest, Mr. Saffi was issued a deportation order, effective immediately. Even though the INS could have secured Mr. Saffi's removal from the United States within a matter of days, and even though there was no probable cause to believe that he had any involvement in the September 11th terrorist attacks or other terrorist activity, the INS kept Mr: Saffi in custody for another four and one-half months, until March 5, 2002, solely on the remote possibility that law enforcement authorities might someday connect him to terrorist activity. Defendants have never demonstrated to a neutral judicial officer that they had probable cause to believe that Mr. Safti has ever engaged in terrorist activities. Nor could they make any such demonstration. Mr. Saffi has never been involved with terrorists, terrorist organizations or terrorist activities. Indeed, he abhors terrorism.
16. While in INS custody, Mr. Saffi was kept in MDC, where he was housed in the Special Housing Unit, commonly known as the "Hole," where criminal pretrial detainees who present special disciplinary problems are kept. During his nearly five months of incarceration at MDC, Mr. Saffi, like other class members sent to MDC, was subjected to unreasonable and excessively harsh conditions and practices, including the following: (a) severe beatings to the
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point of unconsciousness; (b) persistent verbal abuse regarding his race, religion, and ethnicity; (c) denial of medical, dental, and psychological care; (d) confinement in a cell for more than 23 hours a day; (e) shackling, manacling, and physical abuse during cell removals; (t) complete body cavity searches prior to all cell removals; (g) routine denial of Hallal food required by his religion; and (h) deliberately prevented from observing certain mandatory religious practices.
17. Plaintiff SYED AMJAD ALI JAFFRI is a native of Pakistan and a landed immigrant of Canada. He has a wife and four children who reside in Lahore, Pakistan. Since May 1997, Mr. Jaffri has periodically visited family and friends in the United States, entering this country from Canada or Pakistan on tourist visas.
18. On September 27, 2001, while temporarily living in the Bronx, Mr. Jaffri was arrested and detained by the INS. He was subsequently charged with working in the United States without authorization. No other charges were ever filed against him by federal, state or local authorities. Mr. Jaffri has no criminal record in this country or in his home country.
19. On December 20,2001, Mr. Jaffri received a final deportation order. Even though the INS could have secured Mr. Jaffri's removal from the United States within a matter of days thereafter, and even though there was no probable cause to believe that he had any involvement in the September II th terrorist attacks, the INS kept Mr. Jaffri in custody for another three and one-half months, until April, 2002, solely on the remote possibility that law enforcement authorities might someday connect him to terrorist activity. Defendants have never demonstrated to a neutral judicial officer that they had probable cause to believe that Mr. Jaffri has ever engaged in terrorist activities. Nor could they make any such demonstration. Mr. Jaffri has never been involved with terrorists, terrorist organizations or terrorist activities. Indeed, he
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abhors terrorism. 20. While in INS custody, Mr. Jaffri was incarcerated in MDC, where he was housed
in the Special Housing Unit. During his more than seven months of incarceration at MDC, Mr. Jaffri, like other class members sent to MDC, was subjected to various unreasonable and excessively harsh conditions and practices, including the following: (a) severe beatings; (b) persistent verbal abuse regarding his race, religion, and ethnicity; (c) denial of medical, dental, and psychological care; (d) confinement in his cell for more than 23 hours a day; (e) shackling, manacling, and physical abuse during cell removals; (f) complete body cavity searches prior to all cell removals; (g) routine denial of Hallal food required by his religion; and (h) the deliberate denial of the ability to observe mandatory religious practices.
21. Defendant JOHN ASHCROFT is the Attorney General of the United States. As ·Attorney General, Defendant Ashcroft has ultimate responsibility for the implementation and enforcement of the immigration laws. He is a principal architect of the policies and practices challenged here. Upon information and belief, he also authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained. Defendant Ashcroft is being sued in his individual capacity.
22. Defendant ROBERT MUELLER is the Director of the Federal Bureau of Investigation. Defendant Mueller was instrumental in the adoption, promulgation and implementation of the policies and practices challenged here. Upon information and belief, he also authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained. Defendant Mueller is being sued in his individual capacity.
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23. Defendant JAMES W. ZIGLAR is Commissioner of the INS. As INS Commissioner, Defendant Ziglar has immediate responsibility for the implementation and enforcement of the immigration laws. He is the INS's chief executive officer. Defendant Ziglar was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. Upon information and belief, he also authorized, condoned, or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained Defendant Ziglar is being sued in his individual capacity.
24. Defendant DENNIS HASTY has, until very recently, been the Warden ofMDC in Brooklyn, New York. Defendant Hasty had immediate responsibility for the conditions under which Plaintiffs and class members have been confined at MDC. Defendant Hasty has subjected Plaintiffs and class members confined at MDC to unreasonable and excessively harsh conditions in violation of the Constitution. Defendant Hasty is being sued in his individual capacity. Defendant Hasty will be replaced as MDC Warden by Michael Zenk.
25. Defendants JOHN DOES 1-10 are federal employees who are employed as corrections officers at MDC in Brooklyn, New York. Singly and collectively, Defendants John Does 1-10 have subjected Mr. Saffi and other class members confined at MDC to unreasonable and excessively harsh conditions. Defendants John Does 1-10 are being sued in their individual capacities.
CLASS ACTION ALLEGATIONS 26. Plaintiffs bring this action under Rule 23(b)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of a class of all other persons similarly situated. 27. Plaintiffs seek to represent a certified Plaintiff class consisting of all male,
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Muslim non-citizens from the Middle East, South Asia and elsewhere, who have been: (a) arrested by the INS or FBI after the September II th terrorist attacks; (b) detained at the MDC facility or the Passaic County Jail; (c) issued final removal or voluntary departure orders from the INS; (d) held in custody longer than necessary to secure their removal or voluntary departure from the United States based on their final orders; and (e) not afforded a hearing before a neutral judicial officer to determine whether probable cause existed to justify detaining them beyond the time necessary to secure their removal from the United States.
28. The members of the class are too numerous to be joined in one action, and their joinder is impracticable in part because Defendants are keeping their identities secret. While the exact number is presently unknown to Plaintiffs' counsel, the class likely exceeds 87 individuals. See Though Not Linked to Terrorism. Many Detainees Cannot Go Home, N.Y. Times, Feb. 18, 2002, at Al (reporting that United States Department of Justice has blocked departure of 87 mostly Arab or Muslim non-citizens who have received voluntary departure or removal orders, "while investigators comb through information pouring in from overseas to ensure that they have no ties to terrorism").
29. Common questions ofJaw and fact exist as to all class members and dominate those questions that affect only the individual members. These include, but are not limited to:
(a) whether Defendants adopted, promulgated, and implemented a policy and practice depriving Plaintiffs and class members oftheir Fourth Amendment right to be free from umeasonable seizures by detaining them months longer than necessary to secure their removal from the United States;
(b) whether Defendants adopted, promulgated, and implemented a policy and practice depriving Plaintiffs and class members oftheir liberty without due process ofJaw in violation ofthe Fifth Amendment by detaining them months longer than necessary to secure their removal from the United States;
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(c) whether Defendants adopted, promulgated, and implemented policies and practices depriving Plaintiffs and class members of their liberty without due process oflaw in violation of the Fifth Amendment and violating their rights under customary intemationallaw; by subjecting them to outrageous, excessive, cruel, inhuman, and degrading conditions of confinement;
(c) whether Defendants adopted, promulgated, and implemented policies and practices depriving Plaintiffs and class members of their right to counsel in violation ofthe Sixth Amendment;
(d) whether Defendants adopted, promulgated, and implemented a policy depriving Plaintiffs and class members of equal protection of the law in violation of the Fifth Amendment by detaining them months longer than necessary to secure their removal from the United States because of their race, religion, ethnicityand/or national origin; and
(e) whether Defendants adopted, promulgated, and implemented policies which violated Plaintiffs' and class members' rights to practice their religion, to be free from umeasonable seizures, to due process oflaw, to equal protection of the laws, to be free from umeasonable and excessively harsh conditions, and to counsel under the First, Fourth, Fifth, and Sixth Amendments to the Constitution of the United States, respectively.
30. The named Plaintiffs' claims are typical of those of the class. First, each Plaintiff
is a male, Muslim non-citizen of Turkish Of Pakistani descent. Second, each Plaintiff was
arrested and detained subsequent to the September 11th terrorist attacks on minor (but
deportable) immigration violations. Third, each Plaintiff subsequently received a deportation or
a voluntary departure order. Fourth, each Plaintiff was nonetheless held for months longer than
necessary to secure his removal from the United States. Fifth, each Plaintiff was denied a
hearing to determine whether there was probable cause to detain them beyond the time when all
legitimate immigration law enforcement purposes had been served. Sixth, each Plaintiff was
held under umeasonable and excessively harsh conditions of confinement. Seventh, each
Plaintiff was detained in part because of his race, religion, national origin and/or ethnicity.
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31. The legal theories on which the named Plaintiffs rely are the same or similar to those on which all class members would rely, and the harms suffered by them are typical of the harms suffered by the other class members.
32. Plaintiffs will fairly and adequately protect the interests ofthe class. The interests of the class representatives are consistent with those ofthe class members. In addition, Plaintiffs' counsel are experienced in class actions and civil rights litigation.
33. Plaintiffs' counsel know of no conflicts of interest among class members or between the attorneys and class members that would affect this litigation.
34. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court which individual litigation of these claims would impose.
35. The Plaintiff class should be certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure ("Rule 23(b)(3)") for determination of liability because Defendants have acted on grounds generally applicable to the class, thereby making class-wide declaratory relief appropriate.
36. Common questions of law and fact also clearly predominate within the meaning of Rule 23(b)(3). Class action treatment provides a fair and efficient method for the adjudication of this controversy, affecting a large number of persons, joinder of whom is impracticable. The class action provides an effective method whereby the enforcement of Plaintiffs' and class members' rights can be fairly managed without unnecessary expense and duplication.
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STATEMENT OF FACTS General Allegations
37. In the wake of the September 11 th terrorist attacks, the INS has arrested and detained well over 1,200 male, Muslim, non-citizens from the Middle East, South Asia, and elsewhere ("the post-9/11 detainees"), most of them on minor immigration violations -- such as overstaying visas, working illegally on tourist visas, or failing to meet matriculation and/or course work requirements for student visas. While the INS has sometimes in the past sought to remove non-citizens for these violations, it generally has not detained them during their removal proceedings.
38. Upon information and belief, the INS has taken a different approach with post9111 detainees, not because they violated the immigration laws -- that alone does not justify . detention under the immigration laws -- but rather because federal law enforcement authorities deemed them potential (but not actual or even probable) terrorists, often based on vague suspicions rooted in racial, religious, ethnic, and/or national origin stereotypes rather than in hard facts.
39. Upon information and belief, many post-9111 detainees have been held for weeks, even months in INS facilities or county jails, without any charges being filed against them and without any hearing on the reasons for their detention. Eventually, the INS has filed charges against most post-9/II detainees, alleging that they committed minor immigration violations and not criminal offenses.
40. Upon information and belief, after immigration hearings, many post-9111 detainees have received final deportation orders or accepted voluntary departure orders. Even
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though the INS could have promptly secured the deportation or voluntary departure of these individuals, it has kept them in custody for up to five months after the issuance of their final immigration orders -- far longer than necessary to secure their removal from the United States, and well beyond the time that the INS is statutorily authorized to detain them. 8 U.S.C. § l231(a)(l) (90-dayremoval period); 8 U.S.C. § 1229(a)(2) (l20-day period for voluntary departures) .
41. Upon information and belief, most, if not all, post-9/11 detainees have been kept in custody after the issuance of final removal or voluntary departure orders until they have received two "clearances" -- one from the FBI and the other from INS -- absolving them of any linkage to terrorists or terrorist activities. In effect, federal law enforcement authorities have deemed post-9I11 detainees "guilty ofterrorism until cleared," instead of "innocent until proven guilty." The FBI and INS clearances have frequently taken four months or longer.
42. Upon information and belief, from the outset, the arrest, processing, and detention of post-9/ll detainees has been shrouded in extreme secrecy. Most were held incommunicado for the first few weeks of their detention. Family members thus initially had great difficulty finding out whether their loved ones had been arrested and detained, and if so, where they were being held. To add to the secrecy, the INS has designated post-9Il I immigration detainees as "special interest cases," which has the effect of closing their immigration hearings not only to the general public, but also to family members, and sealing the records in their cases.
43. Upon information and belief, while in INS custody, most post-9/ll detainees have been repeatedly interrogated by both FBI and INS agents. Very few have been represented by counsel during these interrogations. Many have not even been told of their right to counsel.
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Others have been coerced to waive that right, even though they could not read the printed English language on the waiver forms which they were instructed to sign and even though they did not fully understand the nature of the right being waived. When post-9/11 detainees have asked to adjourn interrogations so they can consult with an attorney, FBI and INS agents have generally refused to do so.
44. Upon information and belief, post-9/11 detainees have had great difficulty obtaining legal representation, even after they were no longer held incommunicado. Some post9/11 detainees have been held for months following their arrest, with their status and whereabouts unknown to their lawyers and their families. Others have been moved to different facilities without their lawyers' knowledge. For several months after the September 11th terrorist attacks, post-9I11 detainees held at MDC were allowed to make only one call per month to their attorneys and only one call per month to their families. At both MDC and the Passaic County Jail, post-9I11 detainees are allowed to make only collect calls, which few law offices accept from strangers. While INS detainees typically receive a list of organizations that might provide free legal services, the lists given to post-9/11 detainees have been woefully inadequate, containing much inaccurate and outdated information.
45. Upon information and belief, while civil liberties, civil rights, and immigrant advocacy organizations have been ready, willing, and able to provide free legal services to post9/11 detainees, Defendants Ashcroft, Mueller, Ziglar, and Hasty and their employees, agents, and contractors have substantially limited such organizations' access to post-9/11 detainees. They have imposed a virtual "blackout" on information on post-9/1l detainees, refusing to disclose their names, the facilities in which they are being held, or information about their cases. They
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have also denied requests by civil liberties, civil rights, and immigrant advocacy organizations to visit INS facilities or county jails to screen post-9I11 detainees in need of legal assistance.
46. Upon infonnation and belief, even though non-citizen INS detainees must be advised of their right to seek assistance from their consulates under Article 36 of the Vienna Convention, many post-9/11 detainees have not been advised ofthis right. Others have been coerced to waive that right, even though they cannot read the printed English language on the waiver forms which they are asked to sign and do not understand the nature of the right being waived. When post-9/11 detainees have sought to contact their consulates, their requests have been denied.
47. Upon infonnation and belief, shortly after the September II'" terrorist attacks, DefendantsAshcroft, Mueller, and Ziglar established policies within the INS and the FBI to detain Muslim men of Middle Eastern and South Asian origin as suspects in a criminal investigation, notwithstanding the fact that in many instances they lacked probable cause to do so, in violation of the Fourth Amendment. To accomplish this goal, Defendants used the pretext of violations of the INA. The circumstances of most of these detentions deviated from standard INS practice in the following respects:
a) nearly all of the detainees are Muslim men of Middle Eastern or South Asian origin;
b) they have been arrested and detained for minor immigration violations and on scant evidence of dangerousness or flight risk;
c) they have often been held for more than 48 hours without notice of the charges against them;
d) they have been denied bond; and
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e) have been held in detention without cause for as long as five months after their final deportation or voluntary departure orders could have been carried out.
48. Furthermore, while the detentions were all carried as part of a criminal
investigation, the mandatory constitutional, statutory, and common law protections of the
criminal justice system, including access to the courts, were denied Plaintiffs and class members in ways which include, but are not limited to, the following:
a) failing to comply with the requirement that a detained suspect in a criminal investigation be brought promptly before an independent magistrate for a probable cause determination;
b) precluding them from obtaining legal representation by holding them incommunicado and refusing accessing to legal services and civil rights organizations that would have provided legal assistance;
c) subjecting them to coercive interrogations despite repeated requests for adjournment to contact counsel;
d) subjecting them to outrageous, excessive, cruel, inhuman, and degrading conditions of confinement, and excessive force;
e) coercing them to waive their right to consular access; and
f) searching their homes without warrants and without their consent.
49. The policies referred to above were based on invidious animus against Muslims, in
violation of the First, Fifth, and Thirteenth Amendments to the Constitution. Evidence of the aforementioned invidious animus toward Plaintiffs and class members includes but is not limited
to, the following: a) the above-referenced unconstitutional policies have not been applied to all noncitizens in the United States alleged to have violated the immigration laws. Since the September II th terrorist attacks, virtually all of these non-citizens arrested and detained on minor immigration violations have been Muslim;
b) they have been detained in situations where similarly situated non-Muslims have
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not been detained;
c) they have been detained beyond the time necessary to secure their deportation or voluntary departure from the United States, while similarly situated non-Muslim detainees have been deported or allowed to depart within a matter of days or weeks after final orders have been issued;
d) they have been subjected to unreasonable and excessively harsh conditions of confinement, including arbitrary assignment to the Special Housing Unit at MDC - conditions not imposed on similarly situated non-Muslim detainees;
e) they have been verbally abused and subjected to statements slandering the Muslim faith and their adherence to it by the Doe Defendants and by Defendant Ashcroft, who has expressed anti-Muslim sentiments, including a statement reportedly proclaiming the inferiority, moral and otherwise, of the Muslim people, to wit: "Islarn is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you;" and
f) they have been targeted for disparate treatment by Defendant Ashcroft who armounced the policy that Plaintiffs and class members would be arrested and detained for any reason regardless of the de minimis nature of their infractions, and thereby eliminated for Plaintiffs and class members any access to the fair and reasonable discretion of law enforcement officials. This fair and reasonable discretion remains available to non-Muslim individuals who are non-citizens. Defendant Ashcroft's policy armouncement stated: "Let the terrorists among us be warned. If you overstay your visa even by one day, we will arrest you. If you violate a local law we will...work to make sure that you are put in jail and...kept in custody as long as possible."
Allegations Concerning the Named Plaintiffs
Plaintiff Ibrahim Turkmen
50. Ibrahim Turkmen entered the United States through New York City on a tourist
visa in early October, 2000, coming here to visit an old friend from Turkey who lived on Long
Island. When he arrived in the United States, Mr. Turkmen fully expected to return to Turkey
after his visa expired in early April 2001.
51. In late October 2000, however, Mr. Turkmen, at his friend's suggestion, found
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work at a service station in Bellport, Long Island. He worked there several days a week until mid-January 2001, when he took ajob at another service station in the same town. Mr. Turkmen worked at the latter service station several days a week until mid-April 2001, when he began working part-time for a Turkish construction company.
52. From his arrival in the United States until he was taken into INS custody, Mr. Turkmen called his wife and four daughters back in Turkey every other day. While dearly missing them, he decided to remain in the United States to provide for their support. Each week, Mr. Turkmen sent most of his meager earnings home to his farnily.
53. Mr. Turkmen spoke almost no English when he carne to the United Stat~s. While here, he learned barely enough English words to conduct his limited daily business. At the time that he was taken into custody, Mr. Turkmen understood very little spoken English, and he could not read English at all.
54. At about 2:30 p.m. on October 13, 2001, slightly more than a month after the terrorist attacks on the United States, two FBI agents visited Mr. Turkmen at the apartment where he was staying with several Turkish friends in West Babylon, New York. The FBI agents asked Mr. Turkmen a series of questions about his immigration status, his reasons for coming to the United States, his work experience here, his religion, and other personal matters -- questions which Mr. Turkmen had great difficulty understanding due to his limited knowledge of English, but which he did his best to answer truthfully. Accusing Mr. Turkmen of being an associate of Osama Bin Laden -- a baseless charge which Mr. Turkmen vehemently denies -- the FBI agents placed Mr. Turkmen under arrest, confiscated his personal items (passport, identification, credit cards, etc.), and searched his home without his consent.
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55. Mr. Turkmen was taken to an INS facility in Nassau County, where he was fingerprinted and asked more questions in English, this time by an INS official. Despite great difficulty understanding the questions, Mr. Turkmen did his best to answer them truthfully. He again denied any involvement with terrorists or terrorist activities. Mr. Turkmen was held at the Nassau County INS facility for five or six hours.
56. That evening, at about 11 :30 p.m., Mr. Turkmen was brought to another INS facility in Manhattan, where INS officials asked him still more questions in English. Despite great difficulty understanding the questions, Mr. Turkmen again did his best to answer them truthfully. For the third time, he denied any involvement with terrorists or terrorist activities. Mr. Turkmen's interrogators then instructed him to sign certain papers -- papers which he could not read because they were in English:. Afraid that he would only make matters worse for himself by refusing to sign the papers, Mr. Turkmen reluctantly signed the papers.
57. Early the next morning, October 14, 2001, Mr. Turkmen was taken to the Passaic County Jail in Paterson, New Jersey, where he remained confined, except for a single trip to Immigration Court in Newark, New Jersey, until February 25, 2002, a period of nearly four and one-half months.
58. Several days later, while in the Passaic County Jail, Mr. Turkmen received a Notice to Appear from the INS, charging him with overstaying his visa and scheduling a hearing at Immigration Court in Newark, New Jersey on October 31, 2001.
59. On October 29, 2001, two FBI agents visited Mr. Turkmen at the Passaic County Jail, and asked him still more questions about his immigration status, his reasons for entering the United States, his work experience, his religious beliefs, and other personal matters. Another
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Turkish detainee fluent in English translated the questions for Mr. Turkmen, who answered them all truthfully. Mr. Turkmen again denied any involvement with terrorists or terrorist activities.
60. Two days later, on October 31,2001, Mr. Turkmen was taken to Immigration Court in Newark, New Jersey, where he appeared pro se before an immigration judge. While Mr. Turkmen was provided with an interpreter this time, that individual (who was of Middle Eastern or South Asian descent) was fluent in neither Turkish nor English. After conceding that he had overstayed his tourist visa, Mr. Turkmen accepted a voluntary departure order requiring him to leave the United States by November 30, 2001. Mr. Turkmen declined to request bond solely because the judge assured him that he would be allowed to return to Turkey within a matter of days.
61. Upon his return to the Passaic County Jail later that day, Mr. Turkmen called a friend and asked him to purchase a plane ticket back to Turkey. Two days later, on November 2, 2001, the friend brought the ticket to the INS's offices in Newark, New Jersey. Despite having provided the INS with his plane ticket back to Turkey, Mr. Turkmen remained in the Passaic County Jail for nearly four months.
62. While in the Passaic County Jail, Mr. Turkmen was not allowed to call his wife Karer and four daughters back home in Turkey. He learned, however, through a friend that Karer was seriously ill. She had been hospitalized for one m011th with an undisclosed ailment that had caused her to lose most of her hair and teeth. Unable even to call his wife, Mr. Turkmen suffered extreme emotional distress.
63. While in the Passaic County Jail, Mr. Turkmen and other class members were: a) denied any classification process whereby potentially violent and 11011-
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violent prisoners would be housed separately. Rather, they were placed in the general prison population, eating at the same tables and sleeping in the same dormitories as individuals charged andlor convicted of violent crimes; b) denied food which conforms with the religious practices of the Muslim faith; c) severely overcrowded; and d) patrolled in their living quarters by menacing dogs, an experience which they found to be extremely terrifYing. 64. When he first arrived at the Passaic County Jail, Mr. Turkmen was given a telephone numbers to call for free legal services. Most of the numbers, however, were incorrect or no longer valid. For weeks, one of Mr. Turkmen's friends on the outside tried to call the telephone numbers on the list, with no success. Other detainees in the Passaic County Jail encountered the same problem. 65. While in the Passaic County Jail, Mr. Turkmen was never told of his right under· Article 36 of the Vienna Convention to consult with the Turkish Consulate. Had he known that he had such a right, he could have, and would have, sought immediate assistance from the consulate. 66. On January 17, 2002, more than three months after Mr. Turkmen was taken into custody and more than two and one-half months after he received a voluntary departure order, an INS agent visited Mr. Turkmen in the Passaic County Jail to inform him that he had been "cleared" by the FBI but still needed INS "clearance." When Mr. Turkmen asked how long that might take, the INS agent said that he did not know. 67. About three weeks later, on February 17, 2002, Mr. Turkmen was visited by another INS agent, who told him that he had received INS "clearance" and would be allowed to
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depart the United States within the next two weeks. Eight days later, on February 25, 2002, INS agents took Mr. Turkmen in handcuffs from the Passaic County Jail to Newark Airport, where they put him on a plane to Turkey. After nearly four and one-half months in the Passaic County Jail, Mr. Turkmen finally was permitted to return home to his seriously-ill wife and his four daughters.
Plaintiff Asif-ur-Rehman Saffi 68. Asif-ur-Rehrnan Saffi entered the United States through Los Angeles on July 6, 2001, on a three-month tourist visa which was to expire in early October 2001. After briefly staying with family and friends in Los Angeles, Mr. Saffi flew to New York City to see other friends. While in New York City, Mr. Saffi, who is a Microsoft Certified Professional, earned a small sum fixing computers and inputting data for a small business. 69. On September 29, 200 I, while his tourist visa was still valid, Mr. Saffi flew to .. Toronto to spend a few days. Canadian immigration officials, however, refused to allow him into the country, and because of that refusal, Mr. Saffi flew back to New York City the next day, September 30,2001. As soon as he stepped off the plane at LaGuardia Airport, he was arrested by two Port Authority police officers. 70. After interrogating him at a Port Authority police station, the officers took Mr. Saffi to an INS facility in Manhattan, where he was interrogated again, this time by two FBI agents. Mr. Saffi, who is fluent in English, answered their questions truthfully. He denied any involvement with terrorists, terrorist organizations or terrorist activities. The FBI agents, however, disputed Mr. Saffi's veracity, accusing him of involvement in the September I ph terrorist attacks. At an INS official's request, Mr. Saffi signed a written statement that he had
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been working in the United States without authorization. While being interrogated, Mr. Saffi asked to see the French Consul. His request was never granted.
71. The next day, October 1,2001, Mr. Saffi was transported by van to the Metropolitan Detention Center in Brooklyn, New York, in handcuffs with chains around his waist and shackles on his legs. At MDC, Mr. Saffi was dragged roughly from the van into the
building. On the way, his face was slammed into several walls. After being fingerprinted, Mr.
Saffi was strip-searched and given an orange jumpsuit. All of his personal belongings, including his eyeglasses, were confiscated. Still in handcuffs, chains, and shackles, Mr. Saffi was taken to the Special Housing Unit on the Ninth Floor ofMDC.
72. Upon his arrival in the Special Housing Unit, Mr. Saffi again was strip searched. He was also subjected to physical and verbal abuse. The Doe Defendants bent back his thumbs, stepped on his bare feet with their shoes, and pushed him into a wall so hard that he fainted. After Mr. Saffi fell to the floor, they kicked him in the face. The lieutenant in charge, one ofthe Doe Defendants, called Mr. Saffi a terrorist, boasting that Mr. Saffi would be treated harshly because of his involvement in the September IIth terrorist attacks and threatening to punish him if he ever smiled.
73. Mr. Saffi was placed in a 10-foot-by-six-foot cell shared by another detainee. That cell remained Mr. Saffi's home for the next five months. During that period, Mr. Saffi was confined to his cell all day long, nearly every day, with the exception of the offer on several days of being transported to a "recreation" cell, very early in the morning (5 a.m.) for one hour. Mr.
Saffi's cell was cold and uncomfortable on most days. At night, he found it difficult to sleep,
because the lights were on continuously 24 hours a day. For the first week, Mr. Saffi was not
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even given a bar of soap or a towel with which to wash. He was denied all reading material until mid-December 2001, when he was given a copy of the Qu'ran, which Mr. Saffi could not read because the Doe Defendants did not return his eyeglasses until December 18, 2001.
74. While Mr. Saffi was confined at MDC, the Doe Defendants deliberately interfered with the practice and observance of his religion. They denied him the Hallal food required by his faith. They refused to tell him the date, leaving Mr. Saffi unaware when the holy month of Ramadan began. For the first month or so, the Doe Defendants constantly interrupted Mr. Saffi almost every time that he began his daily prayers. Finally, they prevented him from engaging in prayer by deliberately withholding from him the time of day, information essential if Muslims are to know when to engage in prayer.
75." While Mr. Saffi was confined at MDC, he received constant verbal abuse. The Doe Defendants swore at him, belittled and insulted his religion, and degraded hiIil. They called him a religious fanatic and a terrorist. On one occasion, after an individual in an adjacent cell remarked that the food was surprisingly decent for a change, one of the Doe Defendants (a Lieutenant) who overheard the remark, told Mr. Saffi and his neighbor: "You are not supposed to have good food. I will report it."
76. On October 14,2001, two weeks after his arrest, Mr. Saffi was interrogated by six FBI and INS agents, who asked him wide-ranging questions about his family back in France, his work for Pakistan International Airlines, his faith, and his political views - very few of which had anything to do with his immigration violation. Mr. Saffi again denied any involvement with terrorists, terrorist organizations or terrorist activities.
77. Three days later, on October 17, 2001, Mr. Saffi was transported to Immigration
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Court in Manhattan. During a closed hearing, an immigration judge ordered Mr. Saffi deported for working without authorization. When Mr. Saffi asked whether he needed a lawyer, an INS official told him that counsel was unnecessary since the INS soon would deport him.
78. Mr. Saffi was not allowed to make his first telephone call until November 26, 2001, nearly two months after his arrest. On that date, he called the French Consulate, which sent someone to meet Mr. Saffi at MDC on November 29, 2001. At that meeting, Mr. Saffi was told that the INS had given Consulate officials assurances that he would soon be released. But for the fact that Mr. Saffi's wife included the Consulate's telephone number in a letter to him, Mr. Saffi would have been unable to contact the Consulate. The Doe Defendants had refused to give him the French Consulate's address or telephone number.
79. On December 18, 2001, two individuals - an INS agent and a New York City police detective - visited Mr. Saffi at MDC. They questioned him about his family back in France, his work for Pakistan International Airlines, his faith, and his political views. Mr. Saffi again denied any involvement with terrorists, terrorist organizations or terrorist activities. After the interrogation was over, Mr. Saffi's two interrogators assured him that he would soon be released. That, however, did not happen for nearly three months.
80. On March 5, 2002, INS agents took Mr. Saffi from MDC to LaGuardia Airport and put on an airplane to France. After more than five months of arbitrary detention, Mr. Saffi is now back home with his wife and three children. The INS, however, has refused to return Mr. Saffi's personal identification, including his airline and airport security cards.
Plaintiff Amjed Jaffri 81. In September 2001, Plaintiff Amjed Jaffri was living and working in the Bronx,
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New York, albeit without a valid visa. At the time, Mr. Jaffri was renting a room in a three-room apartment leased to Melvin Curzado and his family. One night, Mr. Jaffri and Mr. Curzado had a heated verbal dispute over the living arrangements. Mr. Curzado threatened to report Mr. Jaffri to the INS.
82. Several days later, on September 27,2001, approximately 10 INS and FBI agents, accompanied by a United States Department of Labor official and several New York City police officers, came to Mr. Jaffri's home. They searched Mr. Jaffri's room, without a search warrant and without his consent, finding several stun guns belonging to Mr. Curzado's children in the closet. Mr. Jaffri was arrested and charged with possession of a weapon. The charge was, however, dismissed two days later because there was no evidence that the stun guns belonged to Mr. Jaffri.
83. Following his arrest, Mr. Jaffri was taken to an INS facility in Manhattan, where he was asked to sign a form retroactively consenting to the search of his room. When Mr. Jaffri refused, he was told: "Now you willleam the hard way." When Mr. Jaffri asked to speak with the Canadian Consulate, an FBI agent asked him to sign another form, possibly waiving his right to speak with his consulate, though Mr. Jaffri was never given a copy ofthe form to keep. Mr. Jaffri reluctantly signed the form, hoping that it would expedite his release.
84. On September 29,2001, Mr. Jaffri was taken to MDC, where he was placed in a tiny solitary (windowless) cell in the Special Housing Unit. That cell was Mr. Jaffri's home for the next six months, until April 1, 2002. Over that period, Mr. Jaffri was kept in his cell all day long, nearly every day, with the exception of an offer to be transported to a "recreation" cell for one hour at 5 a.m. in the morning.
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85. Whenever Mr. Jaffri was taken from his cell, he was strip-searched, manacled, and shackled. Corrections officers often inflicted unnecessary pain in these settings, even going so far as to kick Mr. Jaffri's manacles and shackles into him.
86. On most days, Mr. Jaffri's cell was cold and uncomfortable. During the nights, he had great difficulty sleeping, because the lights stayed on 24 hours a day. For the first two months, Mr. Jaffri was denied a bar of soap. He received only two squares (pieces) of toilet paper per day. His meals were served without eating utensils. For months, he was not allowed to have any reading material, not even the Qu'ran. While other post-9I11 detainees were being held in adjoining cells, Mr. Jaffri was forbidden to talk with them, and vice-versa. Corrections officers threatened to cut off visits from his attorney ifhe broke the rule.
87. While Mr. Jaffri was confined in MDC, the Doe Defendants deliberately
interfered with his ability to practice and observe the dictates of his religion. They denied him a copy of the Qu'ran and the Hallal food required by his faith. The Doe Defendants also refused to tell Mr. Jaffri the time of day, making it impossible for him to know when to say his prayers.
88. While Mr. Jaffri was confined in MDC, he was subjected to physical and verbal abuse. When he was first brought to MDC's Special Housing Unit, for example, one Doe Defendant, in the presence of Doe Defendants, told him: "Whether you [participated in the September 11th terrorist attacks] or not, if the FBI arrested you, that's good enough for me. I'm going to do to you what you did." The Doe Defendant then slammed Mr. Jaffri's head into a wall, severely loosening his lower front teeth and causing him extreme pain. Mr. Jaffri felt pain and discomfort from that injury throughout his stay at MDC. He was never, however, allowed to see a dentist.
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89. On December 20, 2001, an INS judge entered a final order of deportation against Mr. Jaffri. The INS did not appeal. Nonetheless, Mr. laffri remained in custody another months, until he received "clearances" from the FBI and INS. On April I, 2002, INS agents took Mr. Jaffi'i to LaGuardia Airport and put him on a plane to France. The INS, however, has refused to return Mr. Jaffri's personal identification, money, and valuable personal items confiscated from him when he was arrested.
FIRST CLAIM FOR RELIEF (Fourth Amendment)
90. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
91. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants.
92. In detaining Plaintiffs and class members months longer than necessary to secure their removal from the United States without charging them with any crime and without affording them a probable cause hearing to justify their continued detention, Defendants, acting under color of law and their authority as federal officers, have intentionally or recklessly seized Plaintiffs and class members in violation of the Fourth Amendment to the United States Constitution.
93. Plaintiffs and class members have no effective means of enforcing their Fourth Amendment rights other than by seeking declaratory and other relief from the Court.
94. As a result of Defendants' unlawful conduct, Plaintiffs and class members have suffered emotional distress, humiliation, embarrassment, and monetary damages.
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SECOND CLAIM FOR RELIEF (Fifth Amendment: Due Process) 95. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 96. Plaintiffs bring this claim on their own behalf and on behalf ofthe class against all Defendants. 97. In detaining Plaintiffs and class members longer than necessary to secure their removal from the United States without any legitimate immigration law enforcement purpose, Defendants, acting under color of law and their authority as federal officers, intentionally or recklessly subjected Plaintiffs and class members to arbitrary and capricious detention, taking their liberty without due process of law in violation of the Fifth Amendment to the United States Constitution. 98. Plaintiffs and class members have no effective means of enforcing their Fifth Amendment due process rights other than by seeking declaratory and other relief from the Court. 99. As a result of Defendants' unlawful conduct, Plaintiffs and class members have suffered emotional distress, humiliation, embarrassment, and monetary damages. THIRD CLAIM FOR RELIEF (Fifth Amendment: Due Process) 100. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 101. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 102. By adopting, promulgating, and implementing policies under which Plaintiffs and
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class members were unreasonably detained and subjected to outrageous, excessive, cruel, inhuman, and degrading conditions of confinement, Defendants, acting under color of law and their authority as federal officers, have intentionally or recklessly deprived Plaintiffs and class members of their liberty interests without due process oflaw in violation of the Fifth Amendment to the United States Constitution.
103. Plaintiffs and class members have no effective means of enforcing their Fifth Amendment due process rights other than by seeking declaratory and other relief from the Court.
104. As a result of Defendants' unlawful conduct, Plaintiffs and class members have suffered emotional distress, humiliation, embarrassment, and monetary damages.
FOURTH CLAIM FOR RELIEF (Fifth Amendment: Equal Protection) 105. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 106. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 107. In detaining Plaintiffs and class members longer than necessary to secure their removal from the United States and subjecting them to harsh treatment not accorded similarlysituated non-citizens, Defendants, acting under color of law and their authority as federal officers, have singled out Plaintiffs and class members based on their race, religion, and/or ethnic or national origin, and knowingly violated their rights under the Fifth Amendment to the United States Constitution to equal protection of the law. 108. Plaintiffs and class members have no effective means of enforcing their Fifth
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Amendment equal protection rights other than by seeking declaratory and other relief from the Court.
109. As a result of Defendants' unlawful conduct, Plaintiffs and class members have suffered emotional distress, humiliation, embarrassment, and monetary damages.
FIFTH CLAIM FOR RELIEF (Sixth Amendment: Right to Counsel) 110. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. III. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 112. By adopting, promulgating, and implementing policies under which Plaintiffs and class members were interrogated by FBI and other federal agents and deprived of the opportunity to obtain counsel, Defendants, acting under color oflaw and their authority as federal officers,.· have intentionally or recklessly deprived Plaintiffs and class members of their right to counsel in violation of the Sixth Amendment to the United States Constitution. 113. Plaintiffs and class members have no effective means of enforcing their Sixth Amendment due process rights other than by seeking declaratory and other relief from the Court. 114. As a result of Defendants' unlawful conduct, Plaintiffs and class members have suffered emotional distress, humiliation, embarrassment, and monetary damages.
SIXTH CLAIM FOR RELIEF (First Amendment: Free Exercise of Religion) 115. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
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116. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants.
117. Defendants have adopted, promulgated, and implemented policies and practices intended to deny Plaintiffs and class members the ability to practice and observe their religion. These policies and practices have included, among other things, the visitation of verbal and physical abuse upon Plaintiffs and class members, and the deliberate denial of all means by which they could maintain their religious practices, including their observance of Hallal food and daily prayer requirements. By such mistreatment, Defendants, acting under color of law and their authority as federal officers, have intentionally or recklessly violated Plaintiffs' and class members' right to free exercise ofreligion guaranteed to them under the First Amendment to the United States Constitution.
118. Plaintiffs and class members have no effective means of enforcing their First Amendment rights other than by seeking declaratory and other relief from the Court.
119. As a result of Defendants' unlawful conduct, Plaintiffs and class members have suffered emotional distress, humiliation, embarrassment, and monetary damages.
SEVENTH CLAIM FOR RELIEF (Customary International Law: Arbitrary Detention) 120. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 121. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 122. The acts described herein constitute arbitrary detention of Plaintiffs and class
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members in violation of the law of nations under the Alien Tort Claims Act, 28 U.S.C. § 1350, in that the acts violated customary international law prohibiting arbitrary detention as reflected, expressed, and defined in multilateral treaties and other international instruments, international and domestic judicial decisions, and other authorities.
123. Defendants are liable for said conduct in that they, acting under color oflaw and their authority as federal officers, have directed, ordered, confirmed, ratified, and/or conspired in bringing about the arbitrary detention of Plaintiffs and class members.
124. As result of Defendants' unlawful conduct, Plaintiffs and class members were deprived of their freedom, separated from their families and forced to suffer severe physical and mental abuse, and are entitled to monetary damages.
EIGHTH CLAIM FOR RELIEF (Customary International Law: Cruel. Inhuman. or Degrading Treatment) 125. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 126. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 127. The acts described herein had the intent and the effect of grossly humiliating and debasing the Plaintiffs and class members, forcing them to act against their will and conscience, inciting fear and anguish, and breaking their physical or moral resistance. 128. The acts described herein constitute cruel, inhuman or degrading treatment in violation of the law of nations under the Alien Tort Claims Act, 28 U.S.C. § 1350, in that the acts violated customary international law prohibiting cruel, inhuman or degrading treatment as
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reflected, expressed, and defined in multilateral treaties and other international instruments, international and domestic judicial decisions, and other authorities.
129. Defendants are liable for said conduct in that Defendants, acting under color of law and their authority as federal officers, directed, ordered, confirmed, ratified, and/or conspired to cause the cruel, inhuman or degrading treatment of Plaintiffs and class members.
130. All Plaintiffs and class members were forced to suffer severe physical and psychological abuse and agony and are entitled to monetary damages.
NINTH CLAIM FOR RELIEF (Vienna Convention on Consular Relations: Consular Notification) 131. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 132. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 133. Plaintiffs and class members were not notified by arresting authorities of their right to communicate with consular officials as required by the Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77, Art. 36. 134. When Plaintiff Saffi requested to speak with officials from the French consulate, Defendants further violated his Vienna Convention rights when they failed to respond to his request without delay and notify the consular post of his detention. Vienna Convention, Art. 36(1). 135. Violations of the right to consular access are direct treaty violations, as specified above, and are also violations of customary international law.
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136. As result of Defendants' unlawful conduct, Plaintiffs and class members are entitled to monetary damages.
TENTH CLAIM FOR RELIEF (Excessive Force - SAFFI)
13 7. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
138. Plaintiff Saffi brings this claim on his own behalf against Defendants John Does 1-10.
139. The intentional beatings ofPlaintiffSaffi by Defendants John Doesl-l0 when Plaintiff was unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others, and when Defendants had no lawful authority to use deadly or non-deadly force against him, was without justification or provocation, was excessive, and was done with actual malice toward Plaintiff and with willful and wanton indifrerence to and deliberate disregard for the constitutional rights of Plaintiff.
140. The intentional beatings ofPlaintiffSaffi by Defendants John Does 1-10 violated Plaintiffs rights as guaranteed by the Fourth and Fifth Amendments to the U.S. Constitution, for which such officers are individually liable.
141. As a proximate result of the beatings by Defendants John Does 1-10, Plaintiff Saffi has sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause him great pain and suffering, both mental and physical.
142. As a result of the unlawful conduct of Defendant John Does 1-10, Plaintiff Saffi is
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entitled to monetary damages. ELEVENTH CLAIM FOR RELIEF (Excessive Force - JAFFRD
143. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
144. Plaintiff Jaffri brings this claim on his own behalf against Defendants John Does 1-10.
145. The intentional beatings of Plaintiff Jaffri by Defendants John Does 1-10 when Plaintiff was nnarmed and did not pose a threat of death or grievous bodily injury to Defendants or others, and when Defendants had no lawful authority to use deadly or non-deadly force against him, was without justification or provocation, was excessive, and was done with actual malice toward Plaintiff and with willful and wanton indifference to and deliberate disregard for the constitutional rights of Plaintiff.
146. The intentional beatings of Plaintiff Jaffri by Defendants John Does 1-10 violated Plaintiffs rights as guaranteed by the Fourth and Fifth Amendments to the U.S. Constitution, for which such officers are individually liable.
147. As a proximate result of the beatings by Defendants John Does 1-10, Plaintiff Jaffri has sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause him great pain and suffering, both mental and physical.
148. As a result of the unlawful conduct of Defendant John Does 1-10, Plaintiff Jaffri is entitled to monetary damages.
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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs and class members respectfully request that the Court enter a

class-wide judgment:

I. Certifying this case as a class action; 2. Declaring that the Defendants' actions, practices, customs, and policies, and those of

all persons acting on their behalf and/or their agents and/or employees, alleged herein are illegal

and violate the constitutional rights of Plaintiffs and class members as to each applicable count;

3. Awarding compensatory and punitive damages for the constitutional and customary

international law violations in an amount that is fair, just, reasonable, and in conformity with the

evidence; 4. Appointing a neutral Special Master to assist in fashioning remedies and to monitor

the implementation of those remedies; 5. Ordering such further relief as necessary to ensure that Defendants operate the MDC

and Passaic facilities in compliance with the United States Constitution and customary

international law; and 6. Ordering such further relief as the Court considers just and proper.

Dated: New York, New York
April 17, 2002

Respectfully submitted,

Center for Constitutional Rights
By: ;JtVv~4.< LtOI~ ./ Barbara J. OfshaTISkY(BOl535)

Nancy Chang (NC 5331)

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Document 1 Filed 04/17/2002 Page 39 of 39
e
William H. Goodman (WG 1241) Jennifer Green (JG 3169) Robert T. Perry (RP 1199) 666 Broadway, 7th Floor New York, New York 10012 Tel.: (212) 614-6439 or 614-6420
Fax: (212) 614-6499

CCR Cooperating Counsel David Cole c/o Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001 Tel.: (202) 662-9078

Paul Hoffman Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP 723 Ocean Front Walk Venice, California 90201 Tel.: (310) 396-0731

Attorneys for Plaintiff;

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 </s> Case 1:02-cv-02307-JG-SMG Document 726 Filed 09/13/10 Page 1 of 86 PageID #: 8589

Rachel Meeropol Michael Winger Sunita Patel William Quigley CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6432

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

IBRAHIM TURKMEN, AKHIL SACHDEVA, :

AHMER IQBAL ABBASI, ANSER MEHMOOD, :

BENAMAR BENATTA, AHMED KHALIFA, :

SAEED HAMMOUDA, and PURNA RAJ

:

BAJRACHARYA on behalf of themselves

:

and all others similarly situated,

: 02 CV 2307 (JG)(SMG)

:

Plaintiffs,

:

: FOURTH AMENDED

: COMPLAINT AND

- against -

: DEMAND FOR JURY TRIAL

:

JOHN ASHCROFT, former Attorney General of :

United States, ROBERT MUELLER, Director of :

the Federal Bureau of Investigation, JAMES W. :

ZIGLAR, former Commissioner of the Immigration :

And Naturalization Service, DENNIS HASTY, :

former Warden of the Metropolitan Detention

:

Center (MDC); MICHAEL ZENK, former Warden :

MDC, JAMES SHERMAN, former MDC Associate:

Warden for Custody, SALVATORE LOPRESTI :

former MDC Captain, and JOSEPH CUCITI,

:

former MDC Lieutenant,

:

:

Defendants.

:

---------------------------------------------------------------x

Plaintiffs Ibrahim Turkmen, Akhil Sachdeva, Ahmer Iqbal Abbasi, Anser Mehmood,

Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Raj Bajracharya (collectively

“Plaintiffs”) by and through their attorneys, allege the following:

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NATURE OF ACTION 1. Plaintiffs bring this class action on behalf of themselves and a class of male non-citizens from the Middle East, South Asia, and elsewhere who are Arab, South Asian or Muslim or were perceived by Defendants to be Arab, South Asian or Muslim, and were arrested on minor immigration violations following the September 11, 2001 terrorist attacks on the United States (“9/11 detainees”). Each Plaintiff was subjected to a policy whereby any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation (called “PENTTBOM”), and discovered to be a non-citizen who had violated the terms of his visa, was arrested and treated as “of interest” to the government’s terrorism investigation. This of interest treatment did not depend on any law enforcement evaluation; it was automatic and based solely on the race, national origin, and religion or perceived race, national origin, and religion of the Plaintiffs and class members. It did not matter whether the tip was wholly implausible, or even whether the non-citizen was the subject of the tip or just encountered incidentally. In fact, there was no reason to suppose Plaintiffs or class members had any connection to terrorism. 2. Nevertheless, each of interest Plaintiff was subjected to a blanket “hold-until-cleared” policy. Although they could have been removed promptly from the United States because of their immigration violations, pursuant to this policy they were instead retained by the agency then known as the Immigration and Naturalization Service (“INS”) in immigration custody until the Federal Bureau of Investigation (“FBI”) affirmatively cleared them of terrorist ties. Eventually, all Plaintiffs and class members were in fact cleared of any connection to terrorism. 3. Plaintiffs and class members were detained without regard to whether they posed a danger or flight risk and were denied a timely hearing before a neutral judicial officer on whether probable cause existed to justify detaining them beyond the time necessary to secure their
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removal or voluntary departure from the United States. Instead of being presumed innocent until proven guilty, the 9/11 detainees were presumed guilty of terrorism until proven innocent to the satisfaction of law enforcement authorities.1
4. Some class members, like Turkmen and Sachdeva (“Passaic Plaintiffs”) were detained in Passaic County Jail in New Jersey; others, like Abbasi, Mehmood, Benatta, Khalifa, Hammouda, and Bajracharya (“MDC Plaintiffs”) were sent to the Metropolitan Detention Center (“MDC”), a federal facility in Brooklyn, New York. Some of these MDC Plaintiffs, like Hammouda and Benatta, were classified by the FBI as being “high interest” and placed in the most highly restrictive prison setting possible—the MDC’s Administrative Maximum Special Housing Unit (“ADMAX SHU”)—without any standards or procedures for making such a determination, or any information that they were dangerous or involved in terrorism. Others, like Abbasi, Bajracharya, Mehmood, and Khalifa, were placed in the ADMAX SHU even though they had not been classified “high interest” and despite the absence of any information indicating they were dangerous or involved in terrorism, or any other legitimate reason for such treatment. Although there are specific federal regulations for determining when to subject detainees to administrative or punitive detention, Defendants did not comply with these regulations in subjecting Plaintiffs and class members to this treatment.
5. At Passaic, the 9/11 detainees were kept from practicing their religion. While in the ADMAX SHU, the MDC Plaintiffs and class members were subjected to unreasonable and
1 The hold-until-cleared policy was well-documented in a report released by the Office of the Inspector General (“OIG”) of the U.S. Department of Justice on June 2, 2003, entitled “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” A copy of this report was appended to the Second Amended Complaint as Exhibit 1, and is incorporated by reference except where contradicted by the allegations of this Fourth Amended Complaint. It is also available at http:/www.usdoj.gov/oig/special/0306/full.pdf.
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excessively harsh conditions. They were placed in tiny cells for over 23 hours a day and stripsearched, manacled, and shackled when taken out of their cells. They were physically and verbally abused by their guards. Many were badly beaten. The MDC Plaintiffs and class members were subjected to a communications blackout and other actions that interfered with their ability to communicate with the outside world, their access to counsel and their ability to seek redress in the courts. They were denied recreation and adequate hygiene supplies, and prevented from practicing their faith during their detention.2
6. By creating and implementing the policy to place MDC Plaintiffs and class members in unduly restrictive and punitive conditions of confinement, Defendants Ashcroft, Mueller and Ziglar violated Plaintiffs’ and class members’ rights under the First, Fourth and Fifth Amendments to the United States Constitution. By detaining Plaintiffs and class members in these conditions and ordering or condoning their abuse, Defendants Hasty, Zenk, Sherman, Lopresti, and Cuciti also violated Plaintiffs’ and class members’ rights under the First, Fourth and Fifth Amendments to the United States Constitution.
7. By arresting Plaintiffs and class members, detaining them under unreasonable and excessively harsh conditions Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk, Lopresti, and Cuciti also engaged in racial, religious, ethnic, and national origin profiling. Plaintiffs’ and class members’ race, religion, ethnicity, and national origin played a decisive role in Defendants’ decision to detain them initially and to subject them to punitive and dangerous conditions of
2 This abuse was documented in a second OIG report, issued in December of 2003, entitled “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York.” The Supplemental Report was attached without appendices as Exhibit 1 to the Third Amended Complaint, and is incorporated by reference except where contradicted by the allegations of this Fourth Amended Complaint. It is also available at http://www.usdoj.gov/oig/special/0312/final.pdf.
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confinement in violation of the rights guaranteed to them by the Fifth Amendment to the United States Constitution.
8. Plaintiffs seek compensatory and punitive damages for themselves and all class members, and an award of costs and reasonable attorneys’ fees.
JURISDICTION AND VENUE 9. This action is brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), under the First, Fourth, and Fifth Amendments to the Constitution and 42 U.S.C. § 1985(3). 10. This Court has jurisdiction under 28 U.S.C. § 1331. 11. Venue is proper in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to Plaintiffs’ claims occurred in this District.
JURY DEMAND 12. Plaintiffs demand trial by jury in this action on each and every one of their claims.
PARTIES The MDC Plaintiffs
13. Plaintiff AHMER IQBAL ABBASI is a South Asian Muslim, and a native and citizen of Pakistan. He currently lives in Pakistan with his wife and three children and works as a supervisor at a construction company. Abbasi has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
14. Plaintiff ANSER MEHMOOD is also a South Asian Muslim, and a native and citizen of Pakistan. He is Abbasi’s brother-in-law. He currently lives in Pakistan with his father, wife, and four children. He has had difficulty finding work in Pakistan, and has had to rely on his father’s
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financial support. Mehmood has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
15. Plaintiff BENAMAR BENATTA is an Arab Muslim, a native of Algeria, and has protected refugee status in Canada. Benatta has not been able to find steady work since his detention in the United States. He currently lives in Canada and is pursuing a graduate degree in Aeronautics at the University of Toronto. Benatta has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
16. Plaintiff AHMED KHALIFA is an Arab Muslim, and a native and citizen of Egypt. He currently lives in Egypt with his parents. Khalifa is a doctor and works as a general practitioner. Khalifa has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
17. Plaintiff SAEED HAMMOUDA is an Arab Muslim, and a native and citizen of Egypt. He currently lives in Egypt with his mother. He is the owner and manager of a medical supplies company called ADVAMED. Hammouda has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
18. Plaintiff PURNA RAJ BAJRACHARYA is a South Asian Buddhist, and a native and citizen of Nepal. He currently lives in Katmandu with his wife, sons, and daughters-in-law, and is retired. Bajracharya has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism. The Passaic Plaintiffs
19. Plaintiff IBRAHIM TURKMEN is Muslim, and a native and citizen of Turkey, where he lives with his wife and four daughters. Turkmen has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
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20. Plaintiff AKHIL SACHDEVA is a South Asian Hindu, and a native and citizen of India. He currently lives in Canada. Mr. Sachdeva has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism. Defendants
21. At all times relevant to this complaint Defendant JOHN ASHCROFT was the Attorney General of the United States. As Attorney General, Ashcroft had ultimate responsibility for the implementation and enforcement of the immigration laws. He is the principal architect of the policies and practices challenged here, and he directed his subordinates to implement them. Along with a small group of high-level government employees, Ashcroft created the hold-untilcleared policy and directed the application of that policy to persons in the circumstances of Plaintiffs and the other class members. With that same group, he also created many of the unreasonable and excessively harsh conditions under which Plaintiffs and other class members were detained, and authorized others of those conditions. Ashcroft ordered the targeting of Muslims and Arabs based on his discriminatory belief that individuals with those characteristics who are unlawfully present in the United States are likely to be dangerous, or terrorists, or have information about terrorism. Ashcroft is sued in his individual capacity.
22. Defendant ROBERT MUELLER is the Director of the Federal Bureau of Investigation. Mueller was part of the small group of government employees who, under Ashcroft’s direction, created the hold-until-cleared policy, directed the application of that policy to persons in the circumstances of Plaintiffs and the other class members, and decided Plaintiffs would be held in unreasonable and excessively harsh conditions of confinement. Mueller condoned the targeting of Muslims and Arabs based on his discriminatory belief that individuals with those
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characteristics who are unlawfully present in the United States are likely to be dangerous, or terrorists, or have information about terrorism. Mueller is sued in his individual capacity.
23. At all times relevant to the complaint Defendant JAMES W. ZIGLAR was the Commissioner of the INS. As INS Commissioner, Ziglar had immediate responsibility for the implementation and enforcement of the immigration laws. He was the INS’ chief executive officer. Ziglar was part of the small group of government employees who, under Ashcroft’s direction, created the hold-until-cleared policy, directed the application of that policy to persons in the circumstances of Plaintiffs and the other class members, and decided Plaintiffs would be held in unreasonable and excessively harsh conditions of confinement. Ziglar condoned the targeting of Muslims and Arabs based on his discriminatory belief that individuals with those characteristics who are unlawfully present in the United States are likely to be dangerous, or terrorists, or have information about terrorism. Ziglar is sued in his individual capacity. The MDC Defendants
24. Defendant DENNIS HASTY was the Warden of the MDC until the spring of 2002. While Warden, Hasty had immediate responsibility for the conditions under which MDC Plaintiffs and other class members were confined at the MDC. He ordered the creation of the ADMAX SHU at the MDC for the purpose of confining Plaintiffs and other class members under unreasonable and excessively harsh conditions in violation of the Constitution. He allowed his subordinates to abuse MDC Plaintiffs and class members with impunity by ignoring some evidence of this abuse and avoiding other evidence—for example, by neglecting to make rounds on the ADMAX unit as required by BOP policy. Despite his attempt to remain blind to the conditions experienced by MDC Plaintiffs and class members, Hasty was made aware of the abuse that occurred through inmate complaints, staff complaints, hunger strikes, and suicide
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attempts, and did not take any actions to rectify or address the situation. Hasty is sued in his individual capacity.
25. Defendant MICHAEL ZENK was the Warden of the MDC in the Spring of 2002 and after. As Warden, Zenk had immediate responsibility for the conditions under which MDC Plaintiffs and other class members were confined at the MDC. He ordered that MDC Plaintiffs and other class members be confined in the ADMAX SHU of the MDC under unreasonable and excessively harsh conditions in violation of the Constitution. He also allowed his subordinates to abuse MDC Plaintiffs and class members with impunity. He made rounds on the ADMAX and was aware of conditions there. Zenk is sued in his individual capacity.
26. At all times relevant to this complaint, Defendant JAMES SHERMAN was the MDC Associate Warden for Custody. Sherman assisted the other defendants in creating the unreasonable and excessively harsh conditions in the ADMAX SHU and allowed his subordinates to abuse MDC Plaintiffs and class members with impunity. Sherman made rounds on the ADMAX SHU and was aware of conditions there. Sherman is sued in his individual capacity.
27. At all times relevant to this complaint, Defendant SALVATORE LOPRESTI was the Captain of the MDC, and thus had responsibility for supervising all MDC correctional officers, including those who worked on the ADMAX. Lopresti was also responsible for overseeing the ADMAX unit. Lopresti took part in creating the unreasonable and punitive conditions on the ADMAX unit at the request of Hasty. Lopresti was frequently present on the ADMAX Unit, regularly reviewed documentation of some of the abuses, and received numerous complaints from 9/11 detainees about abuse and mistreatment. Despite this information, he did not take any actions to rectify or address the situation. Lopresti is sued in his individual capacity
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28. At all times relevant to this complaint, Defendant JOSEPH CUCITI was First Lieutenant at the MDC, and was the institution’s coordinator with law enforcement officers who sought to interrogate the 9/11 detainees. In that capacity he was responsible for escorts, processing, attorney/client and social visits, and other aspects of the 9/11 detentions. Cuciti drafted MDC’s policies regarding conditions in the ADMAX SHU and developed the policy for strip-searches on the ADMAX Unit. Cuciti made rounds on the ADMAX SHU and reviewed logs created by that unit; in those and other ways he heard complaints from MDC Plaintiffs and class members regarding the conditions and abuse described below, yet failed to take any steps to rectify that abuse. Cuciti is sued in his individual capacity
CLASS ACTION ALLEGATIONS 29. Plaintiffs seek to represent a Plaintiff class consisting of all male non-citizens from the Middle East, South Asia and elsewhere who are Arab or Muslim, or were perceived by Defendants as Arab or Muslim, and who were:
a. arrested by the INS or FBI after the September 11, 2001 terrorist attacks and charged with immigration violations;
b. treated as being “of interest” to the government’s terrorism investigation and subjected to a blanket “hold-until-cleared” policy pursuant to which they were held without bond, without evidence of dangerousness or flight risk, until cleared of terrorist ties by the FBI; and
c. detained at MDC or Passaic County Jail. 30. Plaintiffs and the other members of the class were subjected to the policies and practices described in paragraphs 1 through 7 of this Fourth Amended Complaint, and more fully hereafter.
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31. The members of the class are too numerous to be joined in one action, and their joinder is impracticable, in part because Defendants kept their identities secret until long after they were deported from the United States. While the exact number is presently unknown to Plaintiffs’ counsel, the Department of Justice Office of Inspector General was able to identify approximately 475 9/11 detainees who were held at MDC and Passaic and were subjected to the policies challenged in this action.
32. Common questions of law and fact exist as to all class members and predominate over questions that affect only the individual members. These common questions include:
a. whether Defendants adopted, promulgated, and implemented policies and practices depriving MDC Plaintiffs and class members of their liberty without due process of law in violation of the Fifth Amendment by subjecting them to outrageous, excessive, cruel, inhumane, and degrading conditions of confinement;
b. whether Defendants adopted, promulgated, and implemented a policy and practice of depriving Plaintiffs and class members of equal protection of the law in violation of the Fifth Amendment by placing them in restrictive conditions of confinement because of their race, religion, ethnicity, and/or national origin;
c. whether Defendants adopted, promulgated, and implemented a policy and practice which violated Plaintiffs’ and class members’ rights under the First Amendment to practice their religion.
33. Plaintiffs’ claims are typical of those of the class for reasons that include the following: a. each Plaintiff is a male non-citizen of Middle Eastern or South Asian descent who is Arab or Muslim, or was perceived by Defendants to be Arab or Muslim;
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b. each Plaintiff was arrested and detained subsequent to the September 11 terrorist attacks and charged with minor (but deportable) immigration violations;
c. each Plaintiff was treated as “of interest” to the PENTTBOM investigation, and subjected to a blanket “hold-until-cleared” policy pursuant to which he was held in INS detention, without regard to evidence of danger or flight risk, until cleared of terrorist ties by the FBI;
d. each Plaintiff housed in MDC was held under unreasonable and excessively harsh conditions of confinement, and subjected to a communications blackout;
e. each Muslim Plaintiff was denied an opportunity to practice his religion; and f. the race, religion, ethnicity and/or national origin of each Plaintiff (real or
perceived) played a determinative role in Defendants’ decision to detain him. 34. The legal theories on which Plaintiffs rely are the same or similar to those on which all class members would rely, and the harms suffered by them are typical of the harms suffered by the other class members. 35. Plaintiffs will fairly and adequately protect the interests of the class. The interests of the class representatives are consistent with those of the class members. In addition, Plaintiffs’ counsel are experienced in class actions and civil rights litigation. 36. Plaintiffs’ counsel know of no conflicts of interest among class members or between the attorneys and class members that would affect this litigation. 37. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court which individual litigation of these claims would impose.
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38. The Plaintiff class should be certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure because common questions of law and fact predominate and a class action is a superior way to fairly and efficiently adjudicate the controversy.
STATEMENT OF FACTS The Ashcroft Sweeps & the Hold-Until-Cleared Policy
39. Immediately after September 11, Ashcroft created and implemented a policy of rounding up and detaining Arab and South Asian Muslims to question about terrorism. Under Ashcroft’s orders, the round-up and detentions were undertaken without a written policy, to avoid creating a paper trail.
40. The FBI set up a tip line after September 11, and tips poured in from civilians across the nation. Within a week, 96,000 tips had been received, most of them based upon terrified citizens’ discriminatory notions about Arabs and Muslims. Contrary to prior FBI practice, Mueller ordered that every one of these tips be investigated, even if they were implausible on their face, or based solely on suspicion of an individual due to his religion, ethnicity, country of origin or race.
41. While every tip was to be investigated, Ashcroft told Mueller to vigorously question any male between 18 and 40 from a Middle Eastern country whom the FBI learned about, and to tell the INS to round up every immigration violator who fit that profile. FBI field offices were thus encouraged to focus their attention on Muslims of Arab or South Asian descent. Both men were aware that this would result in the arrest of many individuals about whom they had no information to connect to terrorism. Mueller expressed reservations about this result, but nevertheless knowingly joined Ashcroft in creating and implementing a policy that targeted innocent Muslims and Arabs.
42. The FBI field offices followed this guidance in investigating Plaintiffs and class
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members. For example, the head of the New York FBI field office stated that an individual’s Arab appearance and status as a Muslim were factors to consider in the investigation. Another supervisor in the New York FBI field office who oversaw the clearance process stated that a tip about Russian tourists filming the Midtown tunnel was “obviously” of no interest, but that the same tip about Egyptians was of interest.
43. The resulting investigation focused on men who were Muslim and South Asian or Arab, or who were perceived as such. With a few exceptions, the detainees were almost entirely Muslim and South Asian or Arab. The few swept up for immigration violations during the PENTTBOM investigation who did not fit this profile were treated differently than Plaintiffs and class members. For example, five Israelis detained for allegedly celebrating on September 11 ended up at MDC, but they received legal and consular visits in early October, before anyone else in the unit, and they were among the first detainees to be moved from the ADMAX SHU to general population and dropped from the INS custody list, all without clearance letters from the FBI. Another detainee, who happened to be the roommate of an acquaintance of several of the hijackers, was also cleared quickly – within six weeks of his arrest; the FBI summary noted only his lack of relevance to the PENTTBOM investigation and that he was either Austrian or Australian. One detainee with a Spanish surname was picked up while investigators were following a lead about a Yemeni store owner, but determined to be of “no PENTTBOM connection” without any clearance investigation, or even the assignment of an investigator. Thus the New York FBI field office was authorized to release him without any clearance letter from FBI headquarters in contradiction to the hold-until-cleared policy applied to Muslim, Arab and South Asian non-citizens.
44. In contrast, Muslim, Arab and South Asian non-citizens were treated as “of interest” to
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the PENTTBOM investigation without a determination by any FBI or other law enforcement officer that the non-citizen had engaged in any suspicious behavior, or identification of any reason to believe the individual had information about terrorism or was involved in the 9/11 attacks.
45. In the words of one high-ranking Department of Justice official, there was “custody without triage”—that is, without any attempt to sift out detainees of actual interest to the investigation from those who were not. There was, said the same official, “no clear vetting” of detainees, and he was concerned early in the investigation that detainees were being held simply on the basis of their ethnicity. Similarly, Defendant Mueller told OIG investigators that he was not aware of any guidance or policy for determining whether a detainee was of special interest.
46. Several highly placed law enforcement officers, including the Assistant Director in Charge of the New York field office of the FBI, disagreed with this approach and challenged its implementation, arguing that law enforcement efforts must focus on individuals for whom the office had developed evidence were connected to terrorism. Their expertise was ignored.
47. Ashcroft, Mueller and Ziglar received detailed daily reports of the arrests and detentions and were aware that the FBI had no information tying Plaintiffs and class members to terrorism prior to treating them as “of interest” to the PENTTBOM investigation. Indeed, in October 2001 all three learned that the New York field office of the FBI was keeping a separate list of noncitizens, including many Plaintiffs and class members, for whom the FBI had not asserted any interest (or lack of interest). Against significant internal criticism from INS agents and other federal employees involved in the sweeps, Ashcroft ordered that, despite a complete lack of any information or a statement of FBI interest, all such Plaintiffs and class members be detained until cleared and otherwise treated as “of interest.” Mueller and Ziglar were fully informed of this
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decision, and complied with it. 48. Ashcroft, Mueller, and Ziglar’s decision to hold these hundreds of non-citizens for
criminal investigation without evidence of any ties to terrorism was based on their discriminatory notion that all Arabs and Muslims were likely to have been involved in the terrorist attacks, or at least to have relevant information about them.
49. Pursuant to this policy, the FBI directed the INS to arrest and detain well over 1,200 male non-citizens from the Middle East, South Asia, and elsewhere who appeared to be Arab or Muslim, including Plaintiffs and class members, on minor immigration violations—such as overstaying visas, working illegally on tourist visas, or failing to meet matriculation and/or course work requirements for student visas.
50. While the INS had previously sought to remove non-citizens for these violations, it generally did not detain them during their removal proceedings.
51. The Immigration and Nationality Act (“INA”) provides that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” INA § 236(a); 8 U.S.C. § 1226(a). However, only non-citizens with certain criminal convictions fall within the INA’s “mandatory detention” provision. INA § 236(c); 8 U.S.C. § 1226(c). Plaintiffs squarely fall within the discretionary detention statute, and therefore must be provided an individualized custody determination by the Service and, if requested, by an Immigration Judge. The INS took a different approach with Plaintiffs and class members, not because they violated the immigration laws—that alone does not justify de facto mandatory immigration detention—but rather because Ashcroft, Mueller and Ziglar categorized them as potential (although not actual or even probable) terrorists based on vague suspicions rooted in racial, religious, ethnic, and/or national origin stereotypes rather than in hard facts.
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52. Many 9/11 detainees were held for weeks or months in INS facilities, federal detention centers, or county jails, without any charges being filed against them and without any hearing on the reasons for their detention. Eventually, the INS filed civil charges against most 9/11 detainees, alleging minor immigration violations. In the months to come, some detainees were also charged with minor criminal offenses related to their immigration violations, like possession of a fraudulent social security card.
53. Because the FBI lacked probable cause to hold Plaintiffs and class members on criminal charges, Ashcroft ordered Mueller and Ziglar to use the immigration law as a pretext to detain the 9/11 detainees while investigating them for potential ties to terrorism. Although Plaintiffs and class members were purportedly being held under the authority of the civil immigration law, Ashcroft placed Michael Chertoff, the Assistant Attorney General in charge of the Criminal Division, in charge of the round-ups.
54. After immigration hearings, Plaintiffs and class members received final removal orders or accepted voluntary departure orders. Even though the INS could have promptly secured the removal or voluntary departure of these individuals, it kept them in custody for up to five months or more after the issuance of their final immigration orders—far longer than necessary to secure their departure from the United States, and well beyond the time that the INS is statutorily authorized to detain them. 8 U.S.C.§1231(a)(1) (90-day removal period); 8 U.S.C. §1229c(b)(2) (60-day period for voluntary departure granted at the conclusion of removal proceedings).
55. Plaintiffs and class members were kept in custody after the issuance of final removal or voluntary departure orders pursuant to Ashcroft’s order that all non-citizens encountered during the PENTTBOM investigation be held in custody until they received a “clearance” from the FBI absolving them of any link to terrorists or terrorist activities. FBI clearances frequently took four
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months or longer. Ziglar, although concerned that the detentions overstepped the INS’s statutory authority, complied with this requirement. So did Mueller. Ashcroft, Mueller, and Ziglar implemented this policy because of the same race, religion, and national origin stereotypes that prompted them to detain Plaintiffs in the first place.
56. These policies were created at the highest levels of Government, and their implementation was closely overseen by Ashcroft, Mueller, and Ziglar. Initially, the PENTTBOM investigation, consistent with FBI policy, was run out of the FBI field offices. But shortly after September 11, Mueller changed that policy, and ordered that the investigation would be run out of FBI Headquarters, under his direct control. The nerve center of the 9/11 investigation was the Strategic Information and Operations Center, called SIOC, at FBI Headquarters.
57. Mueller personally directed the investigation out of SIOC for the FBI and was in daily contact with the FBI field offices regarding the status of individual clearances. Even after the New York field office of the FBI determined that a Plaintiff or class member had no connection to terrorism, Mueller would not authorize that person to be “cleared” until Headquarters reviewed and signed off on the details of the investigation and received a completed name trace from the Central Intelligence Agency (“CIA”). Many 9/11 detainees, including all of the MDC Plaintiffs, were cleared by the New York field office of any connection to terrorism and then detained for months in restrictive confinement while Headquarters considered their cases. Concerns expressed by FBI field office personnel about this delay were ignored by Headquarters. Mueller made this change because of the same race, religion, and national origin stereotypes that prompted him to detain Plaintiffs in the first place.
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58. As a matter of policy and practice, and in keeping with its “hold-until-cleared” policy, the INS did not conduct post-order custody reviews for 9/11 detainees held more than 90 days after their final removal orders. These reviews are required by the INS regulations at 8 C.F.R. § 241.4, and provide that detainees must be given 30 days notice of the review and that the INS must complete the review 90 days after the issuance of a final removal order. Plaintiffs and class members were not given notice of such a review and no such review was conducted.
59. No one told Plaintiffs and class members why they had been singled out for prolonged investigation and denied custody reviews. Many were told they would be deported shortly after they received final orders, as required by the immigration law. Months passed and they remained in custody, leading them to believe they might be held forever.
60. Ashcroft, Mueller and Ziglar adopted, promulgated, and implemented these detention policies based on invidious animus against Arabs and Muslims, in violation of the First and Fifth Amendments to the Constitution. Evidence of this invidious animus includes:
a. there was no non-discriminatory reason to hold Plaintiffs and class members for investigation, yet Ashcroft, Mueller, and Ziglar delayed their deportation and placed them in restrictive confinement anyway;
b. these unconstitutional detention policies have not been applied to all noncitizens in the United States alleged to have violated the immigration laws;
c. the few individuals arrested in the sweeps who did not fit this profile were cleared quickly, or moved into general population without clearance;
d. Plaintiffs and class members were verbally abused and subjected to statements slandering the Muslim faith and their adherence to it by the Defendants, including Ashcroft, who expressed anti-Muslim sentiments,
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including a statement identifying Christianity by its central theological tenet, but Islam, in contrast, by the views of a small group of extremists: “Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you.”; e. Plaintiffs and class members were targeted for disparate treatment by Ashcroft, who announced the policy that Plaintiffs and class members would be arrested and detained for any reason regardless of the de minimis nature of their infractions, and thereby eliminated for Plaintiffs and class members any access to the fair and reasonable discretion of law enforcement officials. This fair and reasonable discretion remained available to non-Arab and non-Muslim individuals who were non-citizens. Defendant Ashcroft’s policy announcement stated: “Let the terrorists among us be warned. If you overstay your visa even by one day, we will arrest you. If you violate a local law we will . . . work to make sure that you are put in jail and . . . kept in custody as long as possible.” Although Ashcroft referred in this statement to “terrorists,” it describes the policy he applied to Arab and South Asian Muslims with no connection to terrorism. f. Consistent with Defendant Ashcroft, Mueller and Ziglar’s personal bias against Muslims, South Asians, and Arabs, the Defendants also directed the Department of Justice to engage in the following policies, not challenged by this lawsuit, but also based entirely on suspicion of individuals because they belonged to these particular groups: (1) The Absconder Apprehension Initiative, which was designed to “locate,
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apprehend, interview, and deport” approximately “several thousand” individuals from predominantly Muslim countries. See Memorandum, the Deputy Attorney General, U.S. Dep’t of Justice, Guidance for Absconder Apprehension Initiative (Jan. 25, 2002); (2) Mandatory detention for asylum seekers from Arab and South Asian nations. See http://www.humanrightsfirst.org/asylum/torchlight/newsletter/newslet_12. htm; (3) Special registration, which requires aliens from Arab and South Asian countries, almost all of which are predominantly Muslim, to report to immigration authorities to be fingerprinted and photographed, and often interrogated and detained. See Registration of Certain Nonimmigrant Aliens From Designated Countries, 68 Fed. Reg. 8046 (Feb. 19, 2003); 68 Fed. Reg. 2363 (Jan. 16, 2003); 67 Fed. Reg. 77,642 (Dec. 18, 2002); 67 Fed. Reg. 77,136 (Dec. 16, 2002); 67 Fed. Reg. 70,526 (Nov. 22, 2002); 67 Fed. Reg. 67,766 (Nov. 6, 2002); 67 Fed. Reg. 57,032 (Sept. 6, 2002); (4) According to sources within the Department of Justice, Ashcroft also ordered the INS and FBI to investigate individuals with Muslim-sounding names from vast sources of data, including INS records of entering noncitizens, as well as the phonebook. Conditions of Confinement & Abuse 61. In the first few months after 9/11, Ashcroft and Mueller met regularly with a small group of government officials in Washington and mapped out ways to exert maximum pressure on the individuals arrested in connection with the terrorism investigation, including Plaintiffs and class members. The group discussed and decided upon a strategy to restrict the 9/11 detainees’ ability to contact the outside world and delay their immigration hearings. The group also decided to
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spread the word among law enforcement personnel that the 9/11 detainees were suspected terrorists, or people who knew who the terrorists were, and that they needed to be encouraged in any way possible to cooperate.
62. Commissioner Ziglar was at many of these meetings, and he discussed the entire process of interviewing and incarcerating out-of-status individuals with Ashcroft and others.
63. Ashcroft insisted on regular, detailed reporting on arrests. He wanted precise numbers, and received a daily Attorney General’s Report on persons arrested and other developments of interest. He used this report for daily briefings of the President and the National Security Council on the progress of the investigation.
64. Ziglar was ultimately responsible for providing much of this information to Ashcroft, and had twice daily briefings with his staff regarding the 9/11 detentions.
65. The punitive conditions in which MDC Plaintiffs and class members were placed were the direct result of the strategy mapped out by Ashcroft and Mueller’s small working group. These conditions were formulated in consultation with the FBI, and designed to aid interrogation. Indeed, sleep deprivation, extremes of temperature, religious interference, physical and verbal abuse, strip-searches, and isolation are consistent with techniques developed by the C.I.A. to be utilized for interrogation of “high value detainees.”
66. There were not enough secure beds in federal jails like MDC to hold all the 9/11 detainees, so Ashcroft, Mueller and Ziglar’s orders to encourage the 9/11 detainees to cooperate were implemented differently for the Passaic Plaintiffs and class members. Passaic Plaintiffs were denied the ability to practice their religion, were held in overcrowded general population units with convicted felons, and were subjected to physical and verbal abuse, including being
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menaced by dogs. However, they were not held in isolation or otherwise placed in restrictive confinement.
67. Ashcroft, Mueller and Ziglar knew that the FBI had not developed any reliable evidence tying Plaintiffs and class members to terrorism, yet authorized their prolonged detention in restrictive conditions nonetheless. Indeed, Mueller ordered that MDC Plaintiffs and class members be kept on the INS Custody list (and thus in the ADMAX SHU) even after local FBI offices reported that there was no reason to suspect them of terrorism. For Mueller, the absence of suspicion was not enough; the CIA, which had no role in arresting class members or designating them “of interest,” had to be asked if it could find some basis for suspicion.
68. To implement Ashcroft, Mueller and Ziglar’s policy, Wardens Hasty and Zenk ordered their subordinates to ignore BOP regulations regarding detention conditions. BOP regulations limit the circumstances in which detainees may be placed in the SHU and require an employee known as the Segregation Review Official to conduct a weekly review of the status of each inmate housed in the SHU after he has spent seven days in administrative detention or disciplinary segregation. The Segregation Review Official is also required to conduct a formal hearing every 30 days assessing the inmate’s status. These review processes were not conducted for the 9/11 detainees. Instead, Wardens Hasty and Zenk ordered prolonged placement of MDC plaintiffs and class members in the ADMAX SHU without following the processes they knew the law required for such deprivation. Reports for 9/11 detainees in MDC’s ADMAX SHU were automatically annotated with the phrase “continue high security,” and no hearing took place. Plaintiffs and class members were thus denied a fair review process in which to challenge their conditions of confinement.
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69. MDC Defendants were aware that the FBI had not developed any information to tie the MDC Plaintiffs and class members they placed in the ADMAX SHU to terrorism. On a regular basis, an MDC intelligence officer received print-outs of the FBI and INS’s 9/11 detainee lists and databases so that he could update Hasty, Sherman, and Lopresti about the investigations. These regular written updates included summaries of the reason each detainee was arrested, and all evidence relevant to the danger he might pose to the institution. Hasty, Sherman and Lopresti shared the information with Cuciti and other MDC staff.
70. The updates demonstrated the dearth of information connecting MDC Plaintiffs and class members to terrorism or raising a concern that they might pose a danger to the facility. For example, with respect to Khalifa, MDC Defendants were informed only that he was arrested because he was “encountered by INS” while following an FBI lead and charged with a violation of the INA. They were further informed that Khalifa had no INS applications, petitions or extensions pending, and that the “FBI may have an interest” in him. No other information was provided. As the briefing was designed to alert MDC staff to all information relevant to the question of whether Khalifa posed a security threat to the institution, the lack of any specific or incriminating information put MDC Defendants on notice of the inappropriateness of holding all 9/11 detainees in restrictive confinement without individualized assessments.
71. Similarly, MDC Defendants were informed that Mehmood was arrested because he was “encountered” by federal agents while executing a search warrant pursuant to an FBI lead; that his residence contained documents related to fraudulent Pakistan passports, credit card fraud, and “other criminal violations;” that he was charged with a “B1 [visa] overstay,” and that he was in possession of fraudulent Social Security cards. The update included no statement of FBI interest in Mehmood.
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72. MDC Defendants were informed that Abbasi was “encountered” by INS pursuant to an FBI lead; that he used a fraudulent passport to enter the U.S. to seek asylum, and later destroyed that passport; that he requested and was denied various forms of immigration relief; that he obtained and used a fraudulent advance parole letter to enter the country, and that he was thus inadmissible. The update included no statement of FBI interest in Abbasi.
73. The exact language of these updates was repeated weekly, indicating the continued lack of any information tying Khalifa, Mehmood, or Abbasi to terrorism, or tending to show that any of them might pose a danger. Despite this clear demonstration that the FBI had no information to connect the 9/11 detainees to terrorism or suspect them of dangerousness, Hasty, Sherman, and Lopresti continued to hold all the MDC Plaintiffs and class members in restrictive and punitive confinement, without undertaking the required individualized assessment of whether each individual posed a danger to the facility or otherwise required close supervision.
74. Hasty, Sherman, Lopresti, and Cuciti were aware that placing the 9/11 detainees in the ADMAX SHU unit without an individualized determination of dangerousness or risk was unlawful; thus, Lopresti signed a document that was prepared by Cuciti, and approved by Hasty and Sherman, which untruthfully stated that the executive staff at MDC had classified the “suspected terrorists” as “High Security” based on an individualized assessment of their “precipitating offense, past terrorist behavior, and inability to adapt to incarceration.” In reality, none of the MDC Defendants saw or considered information in any of these categories in deciding to place the 9/11 detainees in the ADMAX SHU. Indeed, after a few months of interacting with MDC Plaintiffs and class members, the MDC Defendants realized that they were not terrorists, but merely immigration detainees. Nevertheless, the restrictive conditions and harsh treatment continued.
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75. To carry out Ashcroft, Mueller and Ziglar’s unwritten policy to subject the 9/11 detainees to harsh treatment designed to obtain their cooperation, Hasty ordered Lopresti and Cuciti to design extremely restrictive conditions of confinement. These conditions were then approved and implemented by Hasty and Sherman, and, later, by Zenk.
76. As a result, detention in the ADMAX SHU entailed severe deprivations of liberty beyond those authorized by the BOP for administrative or disciplinary segregation. An ADMAX SHU is a particularly restrictive type of SHU not found in most BOP facilities because the normal SHU is usually sufficient for correcting inmate misbehavior and addressing security concerns. Indeed, the only other ADMAX SHU in existence at the time of Plaintiffs’ detentions was the BOP’s high security unit in Florence, Colorado, where the most dangerous convicted criminals are held. The ADMAX SHU at MDC was established after September 11, 2001 to make available more restrictive confinement. Unlike the regular SHU, in the ADMAX SHU detainees were handcuffed, shackled, chained, and accompanied by four guards whenever they left their cell, which was only permitted for extremely limited purposes. Two cameras were placed in each cell to monitor each inmate 24 hours a day, hand-held cameras recorded their movements whenever they left their cells, and the lights were left on 24 hours a day. Unlike detainees in the general population at MDC, detainees in the ADMAX SHU were detained in their cell for at least 23 hours a day, and were not allowed to move around the unit, use the telephone freely, or keep any property, even toilet paper, in their cell. MDC Plaintiffs and class members were subjected to these restrictive conditions in the ADMAX SHU for between three and eight months pursuant to a written policy drafted by Cuciti, signed by Lopresti, and approved by Sherman and Hasty, and subsequently by Zenk.
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77. Further, Hasty facilitated his subordinates’ multifaceted abuse of MDC Plaintiffs and class members by referring to the detainees as “terrorists,” purposely avoiding the ADMAX unit, and isolating them from any avenue of complaint or assistance. All the MDC Defendants allowed Plaintiffs and class members to be beaten and harassed by ignoring direct evidence of such abuse, including logs and other official documents, videotapes, and detainee complaints. MDC Defendants used the harsh detention conditions as an intentional means of punishing, harassing, and “breaking” the MDC Plaintiffs and class members.
78. When a few MDC staff members brought allegations of abuse to the attention of Hasty and other senior MDC officials, they were called snitches, threatened, and subjected to harassment by many other staff members at the facility. The campaign of harassment was so pervasive that one MDC employee estimated that half of the staff at MDC stopped speaking to him after he wrote a confidential memo to the Warden detailing detainees’ complaints that was then distributed to the staff members on the ADMAX unit. The harassment went unpunished. COMMUNICATIONS BLACKOUT AT MDC Policy to Hold Detainees Incommunicado
79. Hasty implemented Ashcroft, Mueller, and Ziglar’s explicit policy to limit MDC Plaintiffs’ and class members’ access to the outside world in several different ways. First, the 9/11 detainees were subjected to a communications blackout. MDC written policy (created by Lopresti and Cuciti, and approved by Hasty and Sherman) stated that the 9/11 detainees were not to be provided any social or legal visits or telephone calls. This blackout lasted until midOctober.
80. At the same time, individuals who sought to contact MDC plaintiffs and class members were rebuffed. The arrest, processing, and detention of the 9/11 detainees were shrouded in
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secrecy. Family members, friends, and attorneys of men who had suddenly disappeared had great difficulty finding out whether they had been arrested and detained, and if so, where they were being held. Once they were classified as “special interest cases,” 9/11 detainees’ immigration hearings were closed, not only to the general public, but also to family members, and their case records were sealed.
81. MDC Plaintiffs and class members were classified within the BOP as “WITSEC” (Witness Security). The WITSEC designation is intended to protect cooperating witnesses from reprisal, and operates to prohibit BOP staff from disclosing to any individual, even a family member or lawyer, the designee’s location. Based on the WITSEC designation, MDC staff repeatedly turned away any relative or lawyer who came to the MDC in search of a detainee by falsely stating that the detainee was not there.
82. For example, after Mehmood was arrested, his wife Uzma tried to find out what was going on by visiting the local police department, and calling the FBI. The FBI told her that Mehmood was in INS custody and gave her a phone number to call to ascertain Mehmood’s location. When she called the INS, however, they would not tell her where her husband was being held. Eventually, she hired a lawyer who learned that Mehmood was being held at MDC. But even with the help of counsel, she was unable to communicate with her husband for three months. Post-Blackout Restriction on Communication and Access to Counsel
83. Beginning around the middle of October 2001, MDC Plaintiffs and class members were theoretically permitted non-contact visits and telephone calls. By MDC policy, they were allowed one call per week to an attorney and one social call per month. In practice, they were frequently denied even these limited calls.
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84. In many instances, the unit counselor inquired whether 9/11 detainees in the ADMAX SHU wanted their weekly legal call by asking, “Are you okay?” Many detainees did not realize that an affirmative response to this casual question meant they opted to forgo their legal call for that week.
85. When MDC Plaintiffs and class members were actually offered calls, an MDC employee would bring a phone to each cell, often before offices opened for business, and each inmate who requested a phone call was required to place a call request form outside of his cell. Often, the officers would pretend to dial a number, or deliberately dial the wrong number and then claim that the line was dead or busy. They would then refuse to dial again, saying the call failed to go through and that the detainee had exhausted his quota of calls for the week or month. Legal calls that resulted in a wrong number, busy signal or calls answered by voicemail counted as their one legal call for that week. According to MDC documents, Hammouda, for example, was not able to make a legal call until November 7, and it appears the call was unsuccessful, as the records indicate it lasted only two minutes. His next opportunity was November 19, and when that call was incomplete, he was not given another opportunity until November 27. His call on that day lasted only five minutes. Similarly, Abbasi attempted a legal call on December 17, but it was incomplete. MDC records show that he did not try again until February 12, when he made a call that lasted three minutes. Khalifa made a legal call on October 15, but did not receive another opportunity until November 7. Bajracharya was not aware that he could make a legal call until December 3, 2001. On December 17, 2001 he again attempted to make a legal call, but MDC records show the call was incomplete. He did not get another opportunity until January 4, 2002, at which point MDC records show that he made a phone call lasting two minutes.
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86. Once the MDC Plaintiffs and class members were permitted social calls at MDC, in or about the middle of October 2001, these, too, were severely restricted in the same ways. Mehmood, for example, was not able to get through to his wife for three months, because the MDC employee responsible for providing phone calls counted an attempted call, even one that did not go through for technical reasons, as the one monthly call. Hammouda received his first social call on December 18. Abbasi was offered a social call for the first time on October 19, but the number he wanted to call was not on his inmate list, and thus he lost his opportunity to make any call that month. His next opportunity to make a social call was on November 13, but the call was not accepted. He didn’t get another chance until December 26. Khalifa tried unsuccessfully to make a call on October 19, and did not try again until December 10. That attempt was also unsuccessful. Bajracharya was first able to attempt a social call on December 18, but that attempt was unsuccessful. Indeed, MDC records indicate that he was only able to complete one social call in his entire time at MDC, and that call lasted 4 minutes. MDC records show that Khalifa did not have a single successful social call. Benatta was only ever able to get through to an answering machine.
87. MDC Plaintiffs and class members were so upset by their lack of access to the outside world that many went on hunger strike to protest the situation, and one class member attempted suicide by strangling himself with his bed sheet.
88. Legal and social visits were non-contact; a detainee was separated from his visitor by thick plexiglass. Despite the lack of contact, MDC Plaintiffs and class members were cuffed and shackled throughout the visit, and strip-searched both beforehand and afterwards. Social visits were restricted to immediate family. Thus, Abbasi, Benatta, Bajracharya and Khalifa never received a single social visit throughout their imprisonment on the ADMAX.
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89. December 17, 2001 was Eid, the Muslim holiday that marks the end of the Ramadan fast. Mehmood’s wife and children went to MDC to visit him, but were told he was not there. They left without being able to see Mehmood, or deliver to him the prayer rug and food they had brought. Mehmood’s wife was finally granted a non-contact visit on January 11, 2002. Mehmood’s children were not allowed to visit until he was moved to the general population at MDC in February 2002.
90. Hammouda’s wife had a similar experience. Twice she was turned away and told her husband was not at MDC. On another occasion she arrived at MDC at the time she had been instructed she could visit, and was told visiting hours were over. These troubles continued throughout the spring of 2002.
91. Demonstrations protesting the treatment of 9/11 detainees were held weekly outside the MDC starting in November, but the ADMAX SHU cell windows were painted over to keep the detainees from seeing the protestors.
92. The MDC Plaintiffs and class members were not provided with sufficient information to obtain legal counsel. Immigration detainees typically receive a list of organizations that provide free legal services, but the list given to 9/11 detainees was woefully inadequate, containing much inaccurate and outdated information. The MDC Plaintiffs and class members had great difficulty obtaining legal representation, and some were held for months following their arrest while their lawyers and their families made unsuccessful requests to learn their status and whereabouts.
93. Abbasi tried to secure counsel by calling names on the list of pro bono counsel provided by the facility, but got no response. He finally managed to contact his sister, Uzma, after about three months in detention. She arranged to secure an attorney to represent him with respect to his criminal charges. Once he retained an attorney, he was able to call that attorney for two to
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three minutes at a time, although MDC personal remained within hearing distance of his conversation at all times. He was not able to meet with an attorney until December 28, 2001. Khalifa’s first legal visit was on November 1, 2001. The attorney he met with told him she would be at his immigration hearing, but when the time came, she was not present. He was unable to reach her after that. He tried calling some of the numbers on the pro bono counsel list, but was unable to reach anyone.
94. Some MDC Plaintiffs found their access to counsel blocked even during immigration hearings. Mehmood had a hearing before an immigration judge at MDC on October 16. When he explained to the judge that he had been unable to contact a lawyer, the judge postponed the hearing until October 25, 2001.
95. Benatta also had to attend an immigration hearing without a lawyer. In fact, he didn’t even know he was going to have a hearing until he was ordered out of his cell by MDC guards and taken before an immigration judge. During that hearing, Benatta complained to the immigration judge about how tightly he was restrained, so the judge asked the corrections officers to check him during a break. The guards pulled Benatta’s chains even tighter, and asked him if he wanted to complain again. Benatta also told the immigration judge that he was being denied phone calls. Word of his complaint got back to MDC staff, and resulted in even more restricted access.
96. While civil liberties, civil rights, and immigrant advocacy organizations sought to provide free legal services to 9/11 detainees, the MDC substantially limited such organizations’ access to 9/11 detainees by order from DOJ headquarters, in keeping with Ashcroft, Mueller and Ziglar’s policy to isolate the detainees. MDC employees as well as others within the BOP and INS refused to disclose detainees’ names, the facilities in which they were
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held, or information about their cases. They also denied requests by civil liberties, civil rights, and immigrant advocacy organizations to visit BOP facilities or county jails to screen 9/11 detainees in need of legal assistance. These requests were considered and rejected at Main Justice.
97. These unnecessary restrictions led to repeated complaints by 9/11 detainees, some of which were brought to the attention of Hasty, Zenk, Sherman, Lopresti, and Cuciti. The interference was also documented in legal call and social call logs prepared by MDC staff for review by Hasty, Zenk, Sherman, and Lopresti. Video and Audio Taping Attorney/Client Conversations
98. In deliberate violation of the law, Hasty ordered his subordinates, including the other MDC Defendants, to audiotape detainees’ visits with their attorneys. Such recording of inmates’ meetings with attorneys (which was done by using a videotape camera that also recoded sound) is specifically prohibited by 28 C.F.R. § 543.13(e), which provides, “Staff may not subject visits between an attorney and an inmate to auditory supervision.”
99. Recording the detainees’ attorney visits was not necessary for the MDC’s security purposes. It violated the law and interfered with the detainees’ access to effective assistance of counsel. Through April 2002 or later, attorney visits were recorded with sound. Repeatedly throughout November and December, MDC staff brought to Hasty’s attention the fact that “silent witness” cameras might be substituted for audio-ready cameras, but this advice was not heeded. Policy to Deny Detainees Access to Consuls
100. The WITSEC designation and communications restrictions also made it difficult for consulates to contact detainees who were citizens of their countries.
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101. Though non-citizen immigration detainees must be advised of their right to seek assistance from their consulates under Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, TIAS 6820, 21 U.S.T. 77, many Plaintiffs and class members were not advised of this right. Others were coerced into signing forms they did not understand, waiving that right. When the MDC Plaintiffs and class members sought to contact their consulates, their requests were repeatedly denied by the MDC Defendants.
102. For example, Hammouda was not informed that he had the right to have his consulate told about his detention until June 2002. At one point, he tried to call his consulate, but the number provided to him by MDC staff was incorrect. Abbasi was never informed of his right to call his consulate. While at the INS’s Varick Street detention facility, he asked to speak to a lawyer or his consulate, but was not allowed to do so. INHUMANE CONDITIONS OF CONFINEMENT AT MDC
103. Confinement in the ADMAX SHU subjected the MDC Plaintiffs and class members to a system of conditions designed to make their lives difficult and painful, not for any legitimate penological reason but in the belief that they were probably terrorists who therefore ought to suffer, and in the hopes that this suffering would lead to their cooperation with law enforcement. These conditions included confinement to bare cells virtually 24 hours a day; denial of recreation; deprivation of sleep; arbitrary strip-searches; chains, handcuffs and leg cuffs, coupled with twisting their hands and arms and stepping on their leg chains, whenever they left their cells; constant insult; denial of a chance to practice their religion; and lack of access to the prison handbooks that explained how to file complaints about such mistreatment.
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Restraints and Abuse 104. During transport between the MDC Receiving and Discharge Area (“R&D Area”) and
the ADMAX SHU on the ninth floor of the MDC, 9/11 detainees at the MDC were fully restrained in metal handcuffs attached to a waist chain that was connected to another chain linked to ankle cuffs. Similarly, during routine escorts on the ADMAX SHU, the detainees were handcuffed behind their backs and their ankles were shackled. When they were escorted to visits, interviews, or out of the MDC, the detainees were handcuffed in front, restrained in a waist chain, and placed in leg restraints. The MDC Defendants subjected all MDC Plaintiffs and class members to such restraints routinely, as a matter of policy. In addition, MDC Defendants kept all MDC Plaintiffs and class members confined to their cells for nearly 24 hours a day almost every day while they were housed in the ADMAX SHU.
105. Physical abuse of the MDC Plaintiffs and class members during transport was routine. Abuse was more flagrant before the MDC began videotaping detainee escorts in early October 2001, but continued even after that time, and included:
a. Slamming detainees against walls during escorts, including when they first arrived and on the way to attorney and doctor visits and recreation. Upon arrival to the MDC, staff slammed 9/11 detainees against the wall and pushed their faces into a t-shirt hanging on the wall which displayed the slogan “These Colors Don’t Run” and the American flag.
b. Bending or twisting detainees’ arms, hands, wrists, and fingers. c. Lifting detainees off the ground by their arms, and pulling on their arms and
handcuffs.
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d. Stepping on detainees’ leg restraint chains, both while stationary and while walking.
e. Using physical restraints as a form of punishment by leaving them in a cell in restraints for no proper penological purpose.
f. Handling detainees in various other rough and inappropriate manners. 106. Plaintiffs and class members were always fully compliant, making any use of force unnecessary and against BOP policy. Incidents of detainee misconduct were rare, and included only peeling paint off walls, injuring themselves, hiding from cameras, or refusing to come to the cell door to be handcuffed. 107. Numerous complaints about abuse of 9/11 detainees at MDC led the BOP to institute a policy of videotaping all 9/11 detainee movements and resulted in two OIG investigations, as well as investigations by the BOP Office of Internal Affairs and the FBI. Despite his awareness of these complaints and investigations, Hasty failed to investigate the abuse, punish the abusers, train his staff, or implement any process at MDC to review the tapes for abuse. Many of these tapes were destroyed, disappeared, or were taped over, and others were withheld from the OIG for years before they were “found” by MDC staff. 108. Typically, medical staff failed to examine or even comment on injuries the 9/11 detainees received from staff, or to ask how they occurred. MDC Plaintiffs and class members were never given an opportunity to speak to medical personnel outside the hearing of the correctional officers who abused them; these officers sat in on medical consults, and on occasion even assisted the doctors. It was the practice of the medical staff not to report abuse by correctional officers, and the MDC Plaintiffs and the class members often did not ask for doctors when they were abused for fear of retaliation by those officers.
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109. MDC staff verbally abused Plaintiffs and class members by referring to them as “terrorists,” and other offensive names; threatening them with violence; cursing at them; insulting their religion; and making humiliating sexual comments during strip-searches. These instances of abuse were themselves the result of Hasty labeling the detainees as “terrorists” in MDC memoranda despite the lack of any connection between class members and terrorist activity.
110. Some MDC Plaintiffs and class members complained about this abuse. For example, on February 11, 2002, Hammouda and several other class members complained to the MDC counselor that MDC staff called them “camel,” gave them the finger, and assaulted them. No action was taken on these complaints. The counselor who reported the complaint to the Warden was ostracized and harassed. Arbitrary and Abusive Strip-Searches
111. While Defendant Cuciti was given responsibility for developing the strip-search policy on the ADMAX, that policy was never put in writing, and the searches were conducted inconsistently.
112. 9/11 detainees were strip-searched upon arrival to MDC at the R&D Area and again after they had been escorted, in handcuffs and shackles and under continuous guard, to the ninth floor ADMAX SHU. Some of the same officers who were present for a detainee’s strip-search in R&D were present for the detainee’s strip-search on the ADMAX SHU. Detainees were stripsearched every time they were removed from or returned to their cell, including before and after meeting with a lawyer, receiving medical care, attending a court hearing within the MDC, or being transferred to another cell. These strip-searches occurred even when they had no conceivable opportunity to obtain contraband, such as before and after non-contact attorney
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visits which they had been escorted to and from while handcuffed and shackled and under continuous four-man guard, and before and after being transferred directly from one cell to another. For example, on October 25, 2001, Mehmood had an immigration hearing and a noncontact legal visit at MDC. Thus, he was strip-searched four times that day. Similarly, Benatta was strip-searched both before and after an FBI interview, even though he was transported in full restraints by five MDC staff members from his locked cell to the bare FBI interview room and back without the opportunity to receive contraband. The strip-searches had no rational relation to any legitimate penological objective.
113. At other times 9/11 detainees were subjected to random strip-searches, despite remaining within their locked cells without opportunity to receive contraband. For example, MDC records indicate that Benatta was strip-searched on September 23, 24, and 26 of 2001, although he was not transported out of his cell on any of those days.
114. Many, though not all, of these illegal strip-searches were documented in a “visual search log” created by MDC staff for review by MDC management, including Hasty. Other illegal searches were captured on videotape.
115. Strip-searches were employed by MDC staff as punishment and used to humiliate the MDC Plaintiffs and class members, using such tactics as having female officers present, videotaping the strip-searches against BOP policy, strip-searching detainees unnecessarily and within view of other prisoners and staff, and making jokes and humiliating comments during strip-searches. On one occasion, a guard arrived in the middle of one of Benatta’s strip-searches, and joked with the other guards about how they should have let him know Benatta was being searched, so he could have been there for all of it. Another time, a female officer watched Benatta’s search. For Hammouda, the searches were so traumatizing and humiliating that they
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ruined the few visits he was able to have with his wife. He was searched before and after seeing her, and officers made derogatory statements about his body and otherwise harassed him. Some of these searches were videotaped. The process made him feel damaged before talking to his wife, and rendered him anxious and depressed both before and after the visits. It was so bad that Hammouda considered telling his wife not to visit.
116. Many strip-searches conducted on the ADMAX SHU were filmed in their entirety and frequently showed the detainees naked, contrary to BOP regulations that required strip-searches to “be made in a manner designed to assure as much privacy to the inmate as practicable.” One MDC videotape shows four officers escorting a 9/11 detainee into a recreation cell and ordering him to strip while the officers berate him for talking too much with other detainees and for encouraging them to go on a hunger strike. The detainee had just been taken from his cell, patsearched, and then escorted into the recreation cell by the four officers. There was no correctional purpose or justification for this strip-search.
117. On another occasion, MDC staff were ordered to strip-search all 9/11 detainees without suspicion or any opportunity to receive contraband in order to check to see if they had shaven genitalia, based on the mistaken belief that Muslims shave their genitals prior to performing jihad. In fact, Muslims commonly shave their bodies for religious and hygienic reasons.
118. The strip-searches caused all of the MDC Plaintiffs and class members embarrassment and humiliation. Sleep Deprivation
119. Until March 2002, bright lights were kept on in the cells of MDC Plaintiffs and class members 24 hours a day, depriving them of sleep. Prison rules forbade detainees to cover their heads while lying in bed at night, so there was no escape from the constant light. In addition,
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officers banged loudly on their cell doors to wake them up, interrupt their prayers, or generally harass them; sometimes this noise-making took place during required inmate counts at midnight, three and five a.m., but on other occasions it was without this excuse.
120. MDC staff have defended much of the noise as a necessary byproduct of “bar taps,” a safety procedure in which correctional personnel use a mallet to tap on each bar in the facility weekly to produce a noise and check for stress or damage. MDC documents show that contrary to past MDC practice, bar taps on the ADMAX unit were conducted twice a night, in the middle of the night. On some occasions, correctional officers walked by every 20 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, “Motherfuckers,” “Assholes,” and “Welcome to America.” Officers would also watch the in-cell cameras and kick on the doors as soon as they thought a detainee was asleep.
121. All the MDC Plaintiffs and class members experienced sleep deprivation, causing substantial physical and emotional distress. They complained repeatedly to officers, MDC management, and medical personnel, yet received no relief. On one occasion, Hammouda complained that he couldn’t sleep at night, and was given a sheet of paper advising him to avoid coffee. De Facto Denial of Recreation; Inadequate Clothing and Exposure to the Elements
122. Until October 30, 2001 MDC Plaintiffs and class members were denied all recreation. After October 30, Plaintiffs and class members were offered “recreation” in empty cages on the ADMAX range. The cages were devoid of any exercise equipment and open to the sky. Thus they were exposed to the elements, including rain and, in the winter, snow and freezing cold. The MDC Plaintiffs and class members were often offered transport to these recreation cells at the early hour of six or seven a.m., but denied any extra clothing besides their light cotton prison
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garb, and, during the dead of winter, a light jacket. Detainees who accepted these offers were often physically abused along the way by MDC officers who escorted them and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment.
123. Thus, while “recreation” was nominally offered several times a week, the MDC Plaintiffs and class members were constructively denied exercise during the fall and winter months. For example, MDC records show that on November 8, 2001, only 13 of the 46 9/11 detainees who were offered recreation accepted recreation. Two days later, on November 10, 2001, 11 9/11 detainees initially requested recreation, but all but two of them changed their minds when the time came, based on the cold wind that was blowing through the unit. MDC records indicate that the entire range was so cold that day, the officers wore jackets inside. Recreation was offered again on November 13, but again, only two detainees accepted due to the cold.
124. Bajracharya, for example, almost always refused recreation. MDC records show that one of the few times he chose to visit the recreation cages was December 28. 2001 at 8:45 in morning. He was left out in the elements with only a thin coat until 11am, despite the fact that it was below freezing that day.
125. Khalifa was one of the few 9/11 detainees who frequently accepted recreation, despite the cold, because getting to breathe fresh air was the closest he could get to feeling free. His acceptance of recreation did not please the MDC guards, so they chose a cold day, and left him outside in the recreation cage in the freezing cold for four hours, with only a thin jacket. He knocked repeatedly at the door and asked the guards to get him, but they merely laughed at him. When he was finally brought back to his cell, he was shaking and could not feel his feet.
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126. MDC staff documented Plaintiffs’ and class members’ consistent rejection of the opportunity for “recreation” in ADMAX SHU Reports created for review by MDC management, including Lopresti and Sherman. Despite receiving many complaints about the cold, Hasty decided not to issue warmer clothing to the 9/11 detainees, and decided that recreation would continue to be offered only in the chilly early morning.
127. Throughout the fall and winter, even the cells of the MDC Plaintiffs and class members were extremely cold. The MDC Plaintiffs were denied sweaters, jackets, other warm clothing, or bedding adequate to keep them warm. Throughout this period, MDC staff on the ADMAX unit frequently wore jackets while inside to keep warm. Lack of Hygiene Items and Provision of Inadequate and Unhealthy Food
128. The MDC Plaintiffs and class members were deliberately denied adequate, healthy, and religiously appropriate food. Meals in the ADMAX SHU were meager and barely edible, leaving the MDC Plaintiffs hungry.
129. Contrary to the usual policy for inmates in administrative segregation, MDC Plaintiffs and class members were denied all access to the commissary, pursuant to a written MDC policy created by Cuciti and Lopresti, and approved by Sherman and Hasty. Nor were they allowed to retain anything, even an extra apple, in their cells.
130. MDC Plaintiffs and class members were also denied access to basic hygiene items like toilet paper, soap, towels, toothpaste, eating utensils, personal reading glasses, and a cup for drinking water, pursuant to a written MDC policy created by Cuciti and Lopresti, and approved by Sherman and Hasty. Under the policy, hygiene items were passed out and then retrieved daily. Thus for the first several months of their detention, the MDC Plaintiffs and class members were not allowed to keep toilet paper, a towel, soap, a toothbrush, a cup, or other personal
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hygiene items in their cells, making it difficult to maintain proper health and hygiene, contrary to religious dictates and personal dignity. This policy was created for the 9/11 detainees, and had never been imposed on inmates in administrative or disciplinary segregation at MDC before. Deliberate Interference with Religious Rights
131. MDC and Passaic Plaintiffs and class members were consistently burdened in their attempts to practice and observe their Muslim faith.
132. Soon after their arrival at MDC, Plaintiffs requested copies of the Koran, but did not receive them until weeks or even months later, pursuant to a written MDC policy (created by Cuciti and Lopresti, and approved by Hasty and Sherman) that prohibited the 9/11 detainees from keeping anything, including a Koran, in their cell. Abbasi recalls that it was weeks before he received a Koran, and Hammouda and Mehmood did not receive one until a month after they were each detained. Benatta requested a Koran during the first several weeks of his detention, and never received one.
133. While detained in the ADMAX SHU, MDC Plaintiffs and class members were all denied the Halal food required by their Muslim faith, despite many requests for a Halal diet. MDC Plaintiffs and class members often chose not to eat the main part of their meals because they could not identify the type of meat it contained. This exacerbated the hunger caused by their already meager meals, and as a result, they were hungry almost every day of their confinement at MDC. Mehmood brought his religion to the attention of MDC staff as early as November 30, 2001, yet he was not cleared for a Halal diet until February 26, 2002. Abbasi never received Halal food in the ADMAX.
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134. There was no clock visible to the 9/11 detainees, and MDC staff refused to provide them the time of day so that they could pray at the proper times. The staff also refused to tell 9/11 detainees the date, making it difficult for them to know when Ramadan began.
135. MDC Plaintiffs and class members were sometimes disciplined for not responding to a prison count because they were in the midst of their prayers. Hammouda, for example, received an incident report for refusing to stand up for count. He filed a grievance over this report, explaining that he needed to finish his prayer, and stood up as soon as he was done. As a result of the incident, he was prohibited from social visits for sixty days.
136. MDC staff frequently interrupted MDC Plaintiffs’ and class members’ prayers by banging on cell doors, screaming derogatory anti-Muslim comments, videotaping, and telling them to “shut the fuck up” while they were trying to pray. Staff also mocked the detainees’ prayer by attempting to repeat the Arabic phrases of the Azan (the call to prayer) loudly. One MDC guard frequently yelled “Jesus” whenever he heard the opening phrases of the Azan.
137. Evidence and complaints about these practices were brought to the attention of MDC management, including Hasty.
138. At Passaic, the policy to deny detainees the ability to practice their religion was implemented similarly. There too, guards disrupted prayer time by yelling and making noise. For example, guards would purposely wait until the detainees were praying to hand out razors and other hygiene supplies.
139. Detainees at Passaic were denied Halal food as well. For example, when Turkmen requested Halal food, the guard replied “This is not a hotel, this is a prison.” The request was otherwise ignored.
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Failure to Provide Handbooks 140. The usual channels for filing complaints of mistreatment were cut off at MDC. MDC
handbooks which explained how to file complaints about mistreatment were not given to the MDC Plaintiffs and class members on a timely basis, if at all. Abbasi, for example, did not receive the MDC handbook until May of 2002. Some MDC Plaintiffs and class members, including Abbasi, received a short two-page explanation of policies at the ADMAX SHU, but that document did not include any information about making complaints, and was confiscated by MDC staff shortly after it was provided. By putting them in the extremely isolated ADMAX SHU, imposing a communications blackout, and shutting down their ability to file complaints, MDC Defendants blocked MDC Plaintiffs’ and class members’ access to normal channels for lodging complaints of abuse and mistreatment. ALLEGATIONS CONCERNING INDIVIDUAL PLAINTIFFS Ahmer Iqbal Abbasi
141. Abbasi entered the United States in 1993 with a visitor visa, and subsequently sought political asylum from his native country of Pakistan. He remained in the United States unlawfully after that application was denied, only traveling one time in 1998 for a short trip to Pakistan. He drove a cab in Manhattan and saved up to purchase a small grocery store, which he sold prior to 2001.
142. Abbasi was arrested by the FBI on September 25, 2001. At the police station, he was interviewed at length by FBI, INS and NYPD officers. The officers asked Abbasi about his religious beliefs and practices.
143. Abbasi was not told why he was being arrested. He later learned that he came to the attention of the FBI because a house guest had presented a false social security card at the New Jersey Department of Motor Vehicles. The FBI became interested in Abbasi based only on the
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report that the card, and a passport, had been left by “a male possibly Arab” using Abbasi’s address. Based on this information, and nothing more, Abbasi was held as “of interest” to the PENTTBOM investigation, and detained in maximum security confinement until cleared of any connection to terrorism.
144. On September 26, Abbasi was taken to the INS Varick Street detention center. He acknowledged that he had entered into a fraudulent marriage for the purpose of obtaining a green card, and stated that he would like to be deported. Abbasi was previously ordered removed and thus did not receive any immigration hearings. Abbasi could have been removed by the INS within weeks; instead, he was detained in harsh conditions at MDC to facilitate the FBI’s investigation into whether he might have any ties to terrorism.
145. On the afternoon of September 27, 2001 Abbasi was transported to MDC by the INS “Special Response Team” in a convoy of INS and NYPD vehicles. The Special Response Team members wore full body armor with helmets and goggles. The convoy used sirens, and the streets were shut down. Once at MDC, Abbasi was placed in the ADMAX SHU.
146. The conditions of Abbasi’s confinement were harsh. Like the other MDC Plaintiffs and class members, Abbasi was placed in the ADMAX SHU arbitrarily and without justification, subjected to a communications blackout, denied access to the outside world, counsel and to his consulate, arbitrarily and abusively strip-searched, and subjected to inhumane conditions of confinement including sleep deprivation, constructive denial of recreational activities and hygienic items, and deprivation of adequate food and medical attention. Abbasi was and remains a devout Muslim, and the MDC Defendants deliberately and substantially interfered with his religious practice. Abbasi was not provided with timely notice of MDC’s complaint procedures.
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147. Whenever Abbasi was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by tightening his handcuffs and shackles so much that he periodically lost feeling in his fingers and thumb. He was beaten upon arrival at MDC, and systematically shoved into the wall upon later transports. Despite the pain, Abbasi offered no resistance, fearing that resistance would only make matters worse. In early October, MDC staff began video-recording his transports, and the physical abuse lessened then to some degree. The guards were also verbally abusive, and referred to Abbasi and the other detainees as “fucking Muslims” and “terrorists.”
148. These conditions were completely without penological justification, as no one at the FBI or the BOP had any reason to suspect that Abbasi was dangerous or connected to terrorism. The FBI never developed any evidence to tie Abbasi to any terrorist activity, or indicate that he might be dangerous. Indeed, the only reason Abbasi was ever suspected of a connection to terrorism was his identity as a Muslim from Pakistan.
149. On October 2, 2001, SIOC at FBI Headquarters sent an electronic communication to the New York field office requesting information about Abbasi and other detainees. SIOC instructed the New York office to state whether the FBI had an investigative interest in Abbasi, describe the basis for the initial interest, supply specific information justifying continued interest or non-interest, and provide supporting documentation. It does not appear that the New York field office provided any information in response to this request.
150. On October 15, 2001, Abbasi was interviewed at MDC by a team of INS, FBI, and NYPD officers. He was asked if he could provide information regarding September 11, and questioned about his immigration status and his marriage. This was the last time Abbasi was
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questioned by the FBI. In January, he was interviewed again by the INS regarding his marriage. None of these interviews developed any information tying Abbasi to terrorism or indicating that he might be dangerous.
151. By November 1, 2001, Abbasi had been cleared by the New York field office of any connection to terrorism. On that day, SIOC requested CIA name traces on over one hundred detainees, including Abbasi, for whom the FBI had found no link to the September 11 terrorist attacks or any other terrorist activity, organization, or plans. FBI Headquarters indicated that these detainees would probably be released within seven days. Agents at the New York field office sent electronic communications to SIOC repeatedly over the next month, reminding them that Abbasi, along with dozens of others, had been cleared through their investigation, yet remained detained as “of interest” pending Headquarters’ final decision.
152. Over three months later, on February 7, 2002, Stephen Jennings, Acting Chief of the International Terrorism Operations section of the FBI’s Counterterrorism Division, told Michael Pearson, Executive Associate Commissioner of the INS, that, after consultation with FBI Headquarters, the FBI had no investigative interest in Abbasi in connection to the PENTTBOM investigation. Mr. Jennings said that Abbasi could thus be removed from the INS’s custody list. Abbasi was moved from the ADMAX SHU to the general population at MDC on February 14, 2002.
153. On February 26, 2002, Abassi was charged with three criminal offenses, including fraudulent marriage, falsification of a social security card, and credit card fraud. He pled guilty to these offenses in June of 2002, and was sentenced to time served. He was deported on August 20, 2002.
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154. Abbasi continues to suffer the emotional and psychological effects of his detention in the United States. Anser Mehmood
155. Anser Mehmood was born in Lahore, Pakistan on January 12, 1960. He moved from Pakistan to the United States with his wife, Uzma, and three children in 1989. Uzma is Abbasi’s sister. Mehmood entered the United States on a business visa and stayed after that visa expired. The family lived in Bayonne, New Jersey, and Mehmood’s fourth child was born there in 2000. In May of 2001, Uzma’s brother—a United States citizen—submitted an immigration petition for the entire family.
156. Mehmood used the money he made selling his successful business in Pakistan to start a trucking business which he operated on contract with a freight moving company based in Ohio. He was successful and saved enough money to purchase a house in New Jersey and send money home to his family in Pakistan. His children attended public school and adjusted well to life in the United States.
157. On the morning of October 3, 2001, Mehmood was asleep with his wife and year-old son. A team of FBI and INS agents knocked on his door. The agents searched their home and questioned Mehmood and his wife about their immigration status and their relatives, and showed them pictures of individuals who they did not recognize. The agents also asked him whether he was involved with a jihad. Mehmood acknowledged that he had overstayed his visa, and showed the agents the social security number he was using to work.
158. Mehmood’s arrest was a still more remote result of the FBI investigation of the lead that led to Abbasi’s arrest—that “a male possibly Arab” left a fake social security card and
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passport at the New Jersey DMV. While investigating Abbasi, the FBI found the name of his sister Uzma. They came to the house to speak to her, not Mehmood.
159. The FBI told Mehmood they had no interest in him, but that they had to arrest Uzma, as they were interested in learning information from her about another brother, still living in Pakistan. Mehmood convinced the FBI to arrest him instead of Uzma, who was still breastfeeding their infant. The agent told Mehmood that they had no choice but to arrest one of the parents, but that Mehmood faced a minor immigration violation only, and he would be out on bail within days.
160. Mehmood was handcuffed and placed in a car with several INS officers, who transported him to the INS Varick Street detention center, where he was placed in a cell with several other Pakistani and Arab men who had also overstayed their visas. Later that day, he was placed in handcuffs and shackles and put in a van with three other men, flanked on either side by FBI vehicles, which blocked off the side roads as they drove to the Metropolitan Detention Center.
161. Mehmood was charged with overstaying his visa. On October 25, 2001 he was denied bond and political asylum. On December 5, 2001 he was ordered removed. He appealed, but this appeal was subsequently withdrawn. Throughout this period, he was detained in harsh conditions at MDC to facilitate the FBI’s investigation into whether he might have any ties to terrorism.
162. Mehmood’s time in the ADMAX SHU at MDC was harsh. His abuse began the moment he entered MDC on October 4, 2001. He was dragged from the van by several large corrections officers, who threw him into several walls on his way into the facility. His left hand was broken during this incident and remained swollen for some time afterward. He later learned
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that he sustained neurological damage in his hand and hearing loss. Mehmood was photographed, and then re-photographed after MDC guards cleaned the blood from his mouth. The guards threatened to kill him if he asked any questions. One asked if he knew why he was at MDC. He responded that he was there for overstaying his visa. The guard disagreed, and said he was there for the attack on the World Trade Center.
163. Mehmood was then transported in handcuffs and shackles to the ADMAX SHU, and placed in a cell with a man named Ashraf.
164. The family’s neighbors learned that Mehmood had been arrested through media reports, and began harassing the family. Mehmood’s children were isolated and taunted at school. Uzma could not support the family without his financial contribution, and eventually, in February of 2002, Uzma and the children were forced to return to Pakistan.
165. The conditions of Mehmood’s confinement were harsh. Like most if not all of the other MDC Plaintiffs and class members, Mehmood was placed in the ADMAX SHU arbitrarily and without justification, subjected to a communications blackout, denied access to counsel and to his consulate, arbitrarily and abusively strip-searched, and subjected to inhumane conditions of confinement including sleep deprivation, constructive denial of recreational activities and hygienic items, and deprivation of adequate food and medical attention. Mehmood was and remains a devout Muslim, and the MDC Defendants deliberately and substantially interfered with his religious practice. Mehmood was not provided with timely notice of MDC’s complaint procedures.
166. Whenever Mehmood was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by banging him into the wall,
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dragging him, carrying him, and stepping on his shackles and pushing his face into the wall. They were also verbally abusive, and stated that Mehmood was responsible for 9/11, so they would do to him what he did on that day. He also witnessed correctional officers make ethnic and religious slurs to other 9/11 detainees.
167. These conditions were without any penological justification, as no one at the FBI or the BOP had any reason to suspect Mehmood of connection to terrorism or posing a danger. The FBI never developed any evidence to tie Mehmood to any terrorist activity or indicate that he might be dangerous. Indeed, the only reason Mehmood was ever suspected of a connection to terrorism was his identity as a Muslim from Pakistan.
168. Mehmood was never interviewed by the INS or the FBI after his arrest. According to FBI documents, Mehmood was of interest because he refused to accept a “lucrative transportation assignment” on September 11, 2001. However, by November or December of 2001, the FBI agent investigating Mehmood had determined that his refusal was ordered by the trucking company he did contract work for, due to the turmoil following September 11, and that Mehmood should be deported. On November 1, 2001, Mueller requested CIA name traces on dozens of detainees, including Mehmood, for whom the FBI had found no link to the September 11 terrorist attacks or any other terrorist activity, organization, or plans. Mueller indicated that the detainees would probably be released within seven days.
169. Despite these indications, a December 17, 2001 list of FBI interest detainees maintained at FBI headquarters stated that Mehmood was “of interest” to the FBI. Mehmood’s clearance at FBI Headquarters was “pending” by January 16, and finalized by January 30, 2002.
170. On February 6, 2002 Mehmood was moved to the general population in MDC. He was told that he would be deported shortly. It appears from FBI documents that this action was not
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based on Mehmood’s clearance, but rather on a motion by his attorney to have him moved out of segregation. On March 29, 2002 he was charged with working with an unauthorized social security number. He pled guilty and was sentenced to eight months in prison. On April 4, 2002 he was transferred to Passaic County Jail, in New Jersey. He was deported to Pakistan on May 10, 2002.
171. Mehmood continues to suffer the emotional and psychological effects of his detention in the United States. Mehmood lost his home and business due to his detention, and has had trouble finding work in Pakistan. Benamar Benatta
172. Benamar Benatta, a citizen of Algeria, initially entered the United States on a nonimmigrant visitor visa on December 31, 2000. Benatta was then a member of the Algerian Air Force, and came to the United States to receive aviation training at a Northrop Grumman training facility. Benatta completed that training program, but remained in the United States past the expiration of his visa with the goal of seeking political asylum and gaining employment in this country. On September 5, 2001 he crossed the Canadian border with false documentation and applied for refugee status.
173. Benatta was detained by Canadian authorities for investigation. The day after the September 11 attacks, Canadian authorities alerted authorities in the United States to Benatta’s profile and presence in Canada and transported him, against his will, back to the United States, where he was taken into custody by the INS. Benatta was detained for several days at the Rainbow Bridge port of entry in Niagara Falls, New York, where he was interrogated by the FBI regarding his false identification. A detailed summary of this interview was sent by electronic
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communication to SIOC, along with copies of investigatory notes by Canadian and US immigration officials and photocopies of the documents taken off Benatta.
174. The INS immediately commenced removal proceedings against Benatta based on his visa overstay and transferred him to Batavia Federal Detention Facility (BFDF). At BFDF, Benatta was served with a Notice to Appear at the Immigration Court in Batavia, New York on September 25, 2001. However, on September 16, 2001, before Benatta could retain or confer with counsel, he was transported to MDC in Brooklyn.
175. Benatta was transferred to MDC on a private jet, without explanation. He was one of the first detainees in the brand new ADMAX SHU, and thus there were no others to explain to him what was happening. He was placed in the ADMAX SHU with nothing—no toilet paper, toothpaste, a toothbrush, or shoes. To protest his conditions he went on a seven day hunger strike. He began eating again after MDC staff told him he would be force fed, and described how they would stick a tube down his throat.
176. The conditions of Benatta’s confinement were harsh. Like most or all of the other MDC Plaintiffs and class members, Benatta was placed in the ADMAX SHU arbitrarily and without justification, subjected to a communications blackout, denied access to counsel and to his consulate, arbitrarily and abusively strip-searched, and subjected to inhumane conditions of confinement including sleep deprivation, constructive denial of recreational activities and hygienic items, and deprivation of adequate food and medical attention. Benatta was and remains a devout Muslim, and the MDC Defendants deliberately and substantially interfered with his religious practice. Benatta was not provided with timely notice of MDC’s complaint procedures.
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177. Whenever Benatta was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by deliberately kicking Benatta’s manacles and shackles into his lower body. Despite the pain, Benatta offered no resistance, fearing that resistance would only make matters worse.
178. Benatta’s only consistent access to the outside world was the view from one small window. Even that was taken away when MDC officials painted over the window, to further punish Benatta and the other detainees. On April 6, 2002, Benatta received an incident report for attempting to scrape the frosting of his cell window so he could see the outside world. After that incident report, MDC guards ordered Benatta to apologize to them, and retaliated against him by taken his blanket at night. The guards did this several times, and also once punished Benatta by taking his dinner.
179. Benatta’s detention in harsh conditions had a profoundly deleterious impact on his health. Twice, Benatta attempted to injure himself due to his distress over the inexplicable, prolonged, and arbitrary confinement.
180. On October 6, 2001, Benatta’s cellmate was removed for a medical emergency. Benatta was transferred to a recreation cage and was observed there banging his head into the concrete wall. MDC staff did nothing to stop him, nor did they seek psychological treatment for Benatta after this incident.
181. The lights were left on in his cell for 24 hours a day and guards banged on the walls and made loud noises in the night to keep him from sleeping. When Benatta tried to cover his face with a blanket to sleep, the guards ordered him to remove it. Benatta was unable to sleep for days at a time due to this abuse. On November 27, 2001 Benatta was left out in a recreation cage
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for two hours. The temperature that morning was in the 40s, and it was cloudy. When he was brought back inside, he requested a visit from the staff psychologist for sleep deprivation. After speaking to Benatta for five minutes through the door of his cell, the psychologist stated that Benatta was fine, and left.
182. The next day, November 28, 2001, Benatta asked to speak to the psychologist again. One hour later, one of the guards observed Benatta looking out his cell door window and refusing to respond to the guard’s statements. Twenty minutes after that Benatta’s cellmate, Khalifa, sounded his distress alarm to alert the guards that Benatta was attempting to hurt himself by banging his head against the bars of his cell. Benatta does not remember what he was thinking, or whether he was trying to kill himself. He just snapped. The next thing he knew, several MDC guards entered his cell, jumped him, threw him to the floor and began beating and kicking him. Benatta believes that it was during this incident that he chipped his tooth. He was forcibly extracted from his cell by MDC guards and carried to a solitary strip cell, where he was tied tightly to a metal bed, without a mattress, and left for over four hours on suicide watch. He was subsequently released from four-point restraints and placed in ambulatory restraints for another two hours. At no point on that day nor afterwards was he removed from the unit for psychological treatment or a physical examination. From that day forward, Benatta was kept in a cell alone.
183. Benatta had several immigration hearings at MDC. On December 12, 2001, an INS attorney gave the immigration judge a document from the FBI’s Counterterrorism Unit in Washington, which stated that Benatta was “of interest” to the FBI. The judge ordered him removed to Canada or, in the alternative, to Algeria. Although Benatta would have accepted removal to Canada, he appealed his removal order because the FBI officers who interrogated him
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threatened to have him put on a military jet and sent to Algeria, where Benatta feared execution. Benatta did not have the assistance of counsel in writing his appeal, or access to any assistance or law books. He did not even have use of a pen for longer than ten minutes. That appeal was dismissed on April 8, 2002.
184. Benatta’s conditions of confinement were without any penological justification, as no one at the FBI or the BOP had any reason to suspect Benatta of connection to terrorism or posing a danger. The FBI never developed any evidence to tie Benatta to any terrorist activity or indicate that he might be dangerous. Indeed, the only reason Benatta was ever suspected of a connection to terrorism was his identity as a Muslim from Algeria.
185. Benatta was interrogated by the FBI several times during his detention at MDC. He was questioned about his religious practices and beliefs, his citizenship, and his Algerian Air Force employment. On September 29, 2001, information about Benatta, gleaned from an FBI interview at MDC on September 23, 2001, along with other interviews and investigation, was sent to SIOC from the New York FBI field office.
186. On October 1 and 2, 2001 SIOC sent electronic communications to the New York field office requesting information about Benatta and other detainees. As with Abbasi, SIOC instructed the New York field office to state whether the FBI had an investigative interest in Benatta, describe the basis for the initial interest, supply specific information justifying continued interest or non-interest, and provide supporting documentation.
187. The New York field office did not respond with any affirmative statement of interest or any information regarding Benatta’s potential ties to terrorism. Despite this, at some point in late 2001 Benatta was identified as “of special interest” by the Joint Terrorism Task Force, and one summary of the FBI’s investigation into Benatta includes information from an MDC intelligence
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memo indicating that Benatta is suspected of ties to terrorist organizations. There is no indication of what this alleged suspicion was based upon, nor any supporting details. As early as November 2, 2001, the FBI agent assigned to Benatta’s case determined that he was of no interest to the PENTTBOM investigation.
188. On November 5, 2001 the New York Field office indicated their investigation was complete by submitting Benatta’s name to SIOC for FBI Headquarters to request a CIA name trace and officially clear him. Benatta was officially cleared of any connection to terrorism at FBI Headquarters on November 14, 2001. Both the FBI’s New York field office and SIOC were aware that Benatta was not of interest to the PENTTBOM investigation, and information about Benatta’s clearance was also available to officials in the Bureau of Prisons, and at the MDC. Despite this, until April 30, 2002 when he was transferred to general population, he remained in extremely restrictive conditions in the ADMAX SHU.
189. On May 3, 2002 SIOC sent another electronic communication to the New York field office again requesting information about whether the FBI had an interest in Benatta. The New York Field office responded on May 15, 2002 that they had no investigative interest in Benatta.
190. On December 12, 2001 Benatta was indicted in the Western District of New York for possession of a false social security card and a false alien registration receipt card. Despite a magistrate judge’s order to “arrest Mr. Benatta, and bring him forthwith to the nearest Magistrate Judge” to answer the indictment, Benatta was not arraigned, nor brought before any magistrate, until April 30, 2002.
191. On September 12, 2003 United States Magistrate Judge Schroeder recommended dismissal of both of the counts against Benatta, holding that Benatta’s detention in MDC was criminal in nature, and violated his Sixth Amendment right to a speedy trial. See United States v.
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Benatta, No. 01-CR-247E, 2003 U.S. Dist. LEXIS 16514 (W.D.N.Y. Sept. 12, 2003). Judge Schroeder determined Benatta was in criminal detention because of his transfer from INS custody, against INS procedures, and without immigration justification, as well as his assignment of a United States Marshall Service number, his extremely restrictive conditions of confinement, and his repeated interrogations by the FBI. Judge Schroeder described Benatta’s detention as a “subterfuge” and “sham,” created to hide the reality that, because Benatta was an “Algerian citizen and a member of the Algerian Air Force, [he] was spirited off to the MDC Brooklyn … and held in the SH[U] as ‘high security’ for the purposes of providing an expeditious means of having [him] interrogated by special agents of the FBI . . . .” Id. at 25. The judge held that Benatta was “primarily under the control and custody of the FBI” from September 16, 2001 until April 2002, and that accepting the United State’s claim that Benatta “was being detained by the INS during that period of time, for the purpose of conducting removal proceedings would be to join in the charade that has been perpetrated.” Id. at 30.
192. Benatta remained in the United States in immigration detention while he continued to seek political asylum. He was transferred to Canadian custody in 2006 and sought refuge status there. He was granted refugee status from Canada in 2007, and his application for permanent resident status is currently pending.
193. Benatta continues to suffer the emotional and psychological effects of his seven and a half month detention in the ADMAX SHU. He has been diagnosed with post-traumatic stress disorder and has seen a therapist and tried different medications periodically since his release. He has trouble concentrating and writing, and is pessimistic about his chances in school or in a career. He is isolated from family and friends and has trouble communicating and trusting
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others. He has been unable to get a job, in part because no one will hire him after learning about his time in detention. Ahmed Khalifa
194. Ahmed Khalifa entered the United States on July 16, 2001 on a student visa. Khalifa had completed five years of a six year program toward a medical degree at the University of Alexandria in Egypt. He planned to return to Egypt to complete the degree, and had a return ticket to Egypt for October 15, 2001. While in the United States, he worked for approximately six weeks at a clothing store. After that, he started working at a deli. He worked at both places without authorization.
195. Khalifa came to the attention of the FBI after the husband of a postal service worker reported a tip to the FBI hotline stating that several Arabs who lived at Khalifa’s address were renting a post-office box, and possibly sending out large quantities of money.
196. On September 30, 2001, Khalifa was home at the apartment he shared in Brooklyn with several Egyptian friends when there was a knock on the door. He opened the door to find over ten FBI, INS and NYPD officers. One FBI agent asked Khalifa for identification, and Khalifa showed him his international travelers / student ID. The officers searched his wallet, and appeared to be very interested in a list of phone numbers of friends in Egypt.
197. The officers searched the apartment without consent. One FBI agent asked Khalifa about his roommates by name. They asked for his passport, and asked if he had anything to do with September 11. One of the FBI agents told Khalifa that they were only interested in three of the roommates, but another agent interrupted, and said they also needed Khalifa. An FBI agent asked an INS agent to arrest Khalifa for working without authorization. He was then
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handcuffed, and placed in a vehicle. They drove to the work places of Khalifa’s other two roommates, who were not at home during the sweep, and arrested them as well.
198. Khalifa and the others were taken to the INS Varick Street detention facility, where they filled out some paperwork and were told they would be released after 24 hours. They were told not to contact their embassy otherwise it would mean trouble for them.
199. Khalifa was charged with working without authorization. On November 13, 2001, he was ordered removed from the United States. On that day, he waived his right to appeal the removal order because he thought accepting deportation would be the fastest way to get out of MDC. Khalifa could have been removed within days; instead he was detained in harsh conditions at MDC to facilitate the FBI’s investigation into whether he might have any ties to terrorism.
200. Khalifa was transported to MDC on October 1, 2001. The five roommates were all chained together by officers in combat gear and escorted in armored convoy to MDC. When the convoy passed by Ground Zero, one officer stated, “See what you’ve done.”
201. Khalifa was processed at the ground floor of MDC. One employee took his glasses. He did not receive another pair for 90 days. He was slammed into the wall, pushed and kicked by MDC officers and placed into a wet cell, with a mattress on the floor. Khalifa’s wrists were cut and bruised from his handcuffs, and he was worried about other detainees, whom he heard gasping and moaning through the walls of his cell.
202. Khalifa was interviewed by the FBI and the INS on October 7, 2001 at MDC. One of the FBI officers noticed the bruises on Khalifa’s wrists and apologized. When Mr. Khalifa told them he was being abused by MDC guards, they stated it was because he was Muslim. The agents questioned him about whether he knew Sheikh Omar Abdel-Rahman, and whether
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Khalifa was religious. They asked him how frequently he prayed and what mosques he visited in Egypt. This was his only interview with the FBI. In their notes of the interview, the FBI agents did not express any doubt as to Kahlifa’s credibility, any suspicion of ties to terrorism, nor any interest in him in connection to the PENTBBOM investigation.
203. After the interview, Khalifa was strip-searched by MDC guards, who recorded the search with a video camera and laughed when they made him bend over and spread his buttocks.
204. The conditions of Khalifa’s confinement were harsh. Like most or all of the other MDC Plaintiffs and class members, Khalifa was placed in the ADMAX SHU arbitrarily and without justification, subjected to a communications blackout, denied access to counsel and to his consulate, arbitrarily and abusively strip-searched, and subjected to inhumane conditions of confinement including sleep deprivation, constructive denial of recreational activities and hygienic items, and deprivation of adequate food and medical attention. Khalifa was and remains a devout Muslim, and the MDC Defendants deliberately and substantially interfered with his religious practice. Khalifa was not provided with timely notice of MDC’s complaint procedures.
205. Whenever Khalifa was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by deliberately over-tightening his cuffs and twisting his fingers and wrists. They tried to conceal this abuse from the cameras. Despite the pain, Khalifa offered no resistance, fearing that resistance would only make matters worse. Guards on the nightshift smoked on the range and blew smoke into Khalifa’s cell.
206. Toward the end of November, Khalifa was placed into a cell with Benamar Benatta. Benatta had a lot of trouble sleeping because of the cell lights and the guards making noises
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throughout the night. At one point, Benatta had not slept for four nights straight and tried to complain to the guards about it. Khalifa heard Benatta ask for them to turn off the lights, or for sleeping pills or even just something to read. No one responded. One night, Khalifa awoke in the middle of the night to find that Benatta had taken a plastic spoon and cut himself on his hand. The next morning, Benatta began slamming his head into the wall. Khalifa tried to stop him, but Benatta pushed him away, so Khalifa pushed the distress button in his cell to call the guards.
207. The guards burst into the cell and removed Khalifa, who was crying over worry about Benatta. They lifted Benatta up and slammed him into the wall as they removed him from the cell. Khalifa did not see Benatta again.
208. Benatta’s breakdown coincided with the fourth day of Khalifa’s hunger strike. He was refusing to eat until the MDC guards allowed him to call the Egyptian consulate. After Benatta was removed from his cell, one MDC guard told Khalifa that Benatta was refusing to eat until Khalifa began to eat too. To help Benatta, Khalifa started eating again, despite his continued lack of consular access.
209. Khalifa made many requests of the guards: for shoes, books, and medical care, and for clothing to cover himself because female guards were present, and therefore saw him naked, during clothing exchange. None of these requests was granted.
210. Khalifa’s conditions of confinement were completely without penological justification, as the FBI never developed any evidence to connect Khalifa to terrorism, and no one at the FBI or the BOP had any reason to suspect Khalifa of posing a danger. The only reason Khalifa was ever suspected of a connection to terrorism was his identity as a Muslim from Egypt.
211. By November 5, 2001, the New York office of the FBI had completed its clearance investigation of Khalifa, and sent his name to SIOC, at FBI headquarters, to be sent out for a
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CIA name trace. Agents at the New York field office sent electronic communications to SIOC repeatedly over the next month, reminding them that Khalifa, along with dozens of others, had been cleared through their investigation, yet remained detained as “of interest” pending Headquarters’ final decision. Khalifa’s clearance was “pending” at FBI headquarters as early as November 14, 2001, yet Khalifa was held in limbo for months longer. A list of “of interest” detainees maintained at FBI headquarters dated December 17, 2001 states that the FBI had no interest in Khalifa, and that a clearance letter by Maxwell had been signed, but not sent. Khalifa was not officially cleared until December 19, 2001. He was not deported nor released from the ADMAX SHU until mid-January.
212. Khalifa was deported on January 13, 2002. It was the middle of the winter, but the MDC guards brought him to JFK airport wearing only pants and a t-shirt. Khalifa asked for a coat, and they refused.
213. Khalifa was seriously affected by his detention and abuse. He sought treatment for depression upon return to Egypt, and continues to suffer to this day. Among other symptoms, he has trouble concentrating, and has found his medical study difficult. These issues have negatively affected his career in medicine and his ability to enjoy life. Saeed Hammouda
214. Saeed Hammouda lawfully entered the United States on August 31, 1999 on a business visa. He subsequently changed his status to a student visa and began studying to receive an MBA in marketing. He married a United States citizen with whom he had a prior relationship in March 7, 2001, and she petitioned for him to change his status to a lawful permanent resident.
215. On October 7, 2001, Hammouda was temporarily staying at the Manhattan apartment of a friend, Nabil Abdullah, when five or six FBI and INS agents arrived at his door. Hammouda
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allowed the agents to search the apartment. The FBI treated his friend’s things as if they were Hammouda’s and seized several items that belonged to Hammouda’s friend including a computer, flight manuals, and an ice making machine.
216. The agents told Hammouda they were interested in him because he was not in the United States lawfully. The agents asked him if he was religious, what mosques he attended, and whether he prayed every Friday. Hammouda gave them his social security card and identification card. He was sick and preparing to take medicine, which they would not allow him to do. The INS agents asked him questions about his wife and his marriage. This lasted for several hours.
217. A week later, on October 14, 2001, FBI and INS agents returned to the apartment. One INS officer told Hammouda he was present in the country illegally and arrested him. Hammouda was transported to the INS Varick Street detention center and charged with violating his visa by working without authorization. When he was eventually brought before an immigration judge (“IJ”), an INS officer opposed his bond and the IJ denied bond. He was also brought for immigration hearings on November 14, 2001 and December 5, 2001. On February 15, 2002 he received a final removal order, which he did not appeal. The INS could have removed Hammouda within weeks, instead his deportation was delayed while he was detained in harsh conditions at MDC to facilitate the FBI’s investigation into whether he might have any ties to terrorism.
218. After processing at the Varick Street detention center, Hammouda was placed in a convoy of vehicles and transported to the MDC. He was processed on the ground floor of the MDC and his glasses were taken from him. During his transport and processing, Hammouda was verbally and physically abused and called derogatory names. He was pressed against the
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wall several times, and sometimes his face hit the wall. He was strip-searched three times, and called names such as “terrorist” and “Arabic asshole.” He was then transported to the ADMAX SHU, where he was detained for eight months.
219. In January 2002, Hammouda was interrogated for four or five hours by two FBI agents and an INS officer. He was interrogated several times, and was administered a polygraph test. These interrogations and the polygraph test caused distress and anxiety.
220. The conditions of Hammouda’s confinement were harsh. Like most or all of the other MDC Plaintiffs and class members, Hammouda was placed in the ADMAX SHU arbitrarily and without justification, subjected to a communications blackout, denied access to counsel and to his consulate, arbitrarily and abusively strip-searched, and subjected to inhumane conditions of confinement including sleep deprivation, constructive denial of recreational activities and hygienic items, and deprivation of adequate food and medical attention. Hammouda was and remains a devout Muslim, and the MDC Defendants deliberately and substantially interfered with his religious practice. Hammouda was not provided with timely notice of MDC’s complaint procedures.
221. Whenever Hammouda was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by deliberately overtightening his cuffs and twisting his fingers and wrists. They tried to conceal this abuse from the cameras. Despite the pain, Hammouda offered no resistance, fearing that resistance would only make matters worse.
222. Officers routinely used profanity and called Hammouda derogatory names. One officer threw hygiene supplies at the detainees during the materials’ distribution. Other officers made
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sexual comments about Hammouda’s wife. Hammouda complained to various MDC supervisors about this abuse.
223. In the winter months the SHU was very cold at night. Mr. Hammouda could not sleep because of the lights and the temperature. On some nights, Mr. Hammouda paced his small cell to become fatigued and induce sleep.
224. Hammouda’s conditions of confinement were without any penological justification, as no one at the FBI or the BOP had any reason to suspect Hammouda of connection to terrorism or posing a danger. The FBI never developed any evidence to connect Hammouda to terrorism, or to cause concern that he might be dangerous. The only reason Hammouda was ever suspected of a connection to terrorism was his identity as a Muslim from Egypt.
225. As early as October, Hammouda’s INS file indicated that he was not of interest. And on November 5, 2001 the New York Field office indicated their investigation was complete by submitting Hammouda’s name to SIOC so that FBI Headquarters could request a CIA name trace and officially clear him. Headquarters had apparently already received this clearance through another source, because on November 1, 2001, SIOC requested CIA name traces on over one hundred detainees, including Hammouda, for whom the FBI had found no link to the September 11 terrorist attacks or any other terrorist activity, organization, or plans. Headquarters indicated that the detainees would probably be released within seven days.
226. Agents at the New York field office sent electronic communications to SIOC repeatedly over the next month, reminding them that Hammouda, along with dozens of others, had been cleared through their investigation, yet remained detained as “of interest” pending Headquarters’ final decision. However, as of December 17, 2001, FBI Headquarters listed Hammouda as “of interest.” Hammouda was officially cleared by FBI Headquarters on January
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17, 2002, yet he was not removed from the ADMAX. Inexplicably, on May 3, 2002 SIOC sent an electronic communication to the New York field office again requesting information about whether the FBI had an interest in Hammouda. The New York field office responded on May 15, 2002 that now they did have an investigative interest in Hammouda.
227. Despite having been cleared of any connection to terrorism in January, Hammouda was detained in the ADMAX until he was deported on June 14, 2002.
228. Hammouda continues to suffer the emotional and psychological effects of his detention in the United States. He felt like a stranger to his own family when he was released from custody. For almost eight months after his release, he did not work and remained at home. Even today, he has problems in open areas and prefers to be in little or no light. He is fearful of any travel outside Egypt. Purna Raj Bajracharya
229. Bajracharya entered the United States in 1996 on a three-month B1 business visa. He overstayed that visa to remain in Queens, New York for five years. He worked at various odd jobs, including at a Queens Pizzeria and a flower Shop in Manhattan, and sent money home to his wife and sons in his native Nepal.
230. Bajracharya planned to return to his home, Katmandu, in fall or winter 2001. In anticipation of that return, he used his video-camera to record the New York streets he had grown to know, so that he could show them to his wife and children. Bajracharya came to the attention of the FBI on October 25, 2001, when a Queens County District Attorney’s Office employee observed an “arab male” videotaping outside a Queens’ office building that contained the Queens County District Attorney Office and a New York FBI office. Investigators from the Queens D.A. office approached Bajracharya, and asked him why he was taking pictures.
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Bajracharya, who speaks little English, tried to explain that he was a tourist. He was taken inside the building, searched, and interrogated. At some during the five hour long interview, FBI and INS agents arrived and took part.
231. Upon the agents’ request, Bajracharya brought the FBI and INS to his apartment in Woodside and provided them with his passport and various identification documents. He acknowledged that he had overstayed his visa and was in the United States unlawfully.
232. Bajracharya was then placed under arrest by the INS. FBI Agent Wynne, who was assigned to investigate Bajracharya further, indicated to the INS that he would follow up with a telephone call the next day regarding whether or not the FBI had interest in Bajracharya.
233. An INS form I-213 dated October 26, 2001 indicates that FBI interest in Bajracharya was “undetermined” and the case was assigned to FBI Agent Wynne. That day, however, the FBI special agent in charge of the New York Joint Terrorism Task Force told the INS that Bajracharya was “of active investigative interest to the FBI” based on the videotaping. Thus, the INS district director recommended that Bajracharya be detained in MDC. A second I-213 was issued, indicating that the FBI had “special interest” in Bajracharya. The following day, October 27, the Custody Review Unit at INS headquarters in DC approved Bajracharya’s transfer to MDC.
234. Bajracharya was transported to MDC on October 27, 2001. He recalls being pushed forcibly when he was brought out of the van and seeing a T-shirt on the wall with a picture of an American flag on it. He was taken to the ADMAX SHU and placed in a cell alone. He remained alone for the next two months.
235. Bajracharya was interviewed at MDC, this time with the assistance of an interpreter, by FBI Agent Wynne and other law enforcement personnel on October 30, 2001. Bajracharya
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provided the agents with information about his time in the United States, his employment history and his finances, and explained that he was videotaping the building in question as a tourist. Bajracharya was asked whether he was Muslim or knew any Muslims. A Buddhist, Bajracharya explained that he was not Muslim, knew no Muslims, and loved the United States but was planning to return to Nepal to be with his family. In his notes regarding the interview, Wynne did not did not express any doubt as to Bajracharya’s credibility, any suspicion of ties to terrorism, nor any interest in him in connection to the PENTTBOM investigation.
236. Two days later, after corroborating various aspects of Bajracharya’s statements, FBI Agent Wynne issued an FBI report clearing Bajracharya of any connection to terrorism and informed him that he could expect the matter to be resolved within a week or so. That weekend, Wynne received pleading phone calls from Bajracharya’s sons, who had learned of their father’s arrest from his roommate in Queens.
237. By November 5, 2001, the New York office of the FBI had completed its clearance investigation of Bajracharya and sent his name to SIOC, at FBI headquarters, to be sent out for a CIA name trace. Agents at the New York field office sent electronic communications to SIOC repeatedly over the next month, reminding them that Bajracharya, along with dozens of others, had been cleared through their investigation, yet remained detained as “of interest” pending Headquarters’ final decision. Other FBI documents, including a list of interest detainees maintained in FBI headquarters, indicate that the FBI had closed its investigation and concluded they had no interest in Bajracharya by mid-November 2001. Despite all these clearances, Bajracharya was held at MDC in the ADMAX SHU until he was deported on January 13, 2001.
238. Throughout Bajrachareya’s confinement, Agent Wynne spoke to counterterrorism officials in the United States Attorney’s Office and within the INS, seeking to understand why
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the detainee he had affirmatively cleared of any connection to terrorism was still in the ADMAX SHU at MDC. After becoming frustrated with his inability to achieve official clearance for Bajracharya, Wynne called The Legal Aid Society, and advised an attorney there, Olivia Cassin, that Bajracharya needed representation.
239. The conditions of Bajracharya’s confinement were harsh. Like most or all of the other MDC Plaintiffs and class members, Bajracharya was placed in the ADMAX SHU arbitrarily and without justification, subjected to a communications blackout, denied access to counsel and to his consulate, arbitrarily and abusively strip-searched, and subjected to inhumane conditions of confinement including sleep deprivation, constructive denial of recreational activities and hygienic items, and deprivation of adequate food and medical attention. Bajracharya was not provided with timely notice of MDC’s complaint procedures.
240. Bajracharya is a small man—approximately 5’3”, and, at the time of his arrest, about 130 pounds. Whenever Bajracharya was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination. Bajracharya offered no resistance, fearing that resistance would only make matters worse.
241. Bajracharya could not sleep due to the light in his cell. He was so traumatized by his experience at MDC that he began weeping constantly. He thought he was going crazy, and several times indicated to MDC personnel that he was feeling suicidal. He recalls screaming to guards that he was going to die. Indeed, Cassin asked an MDC doctor to transfer Bajracharya to general population, and the doctor responded that Bajracharya was crying too much, and would cause a riot. Guards on the ADMAX scolded Bajracharya for crying, and called him and the other detainees foul names.
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242. Bajracharya’s conditions of confinement were completely without penological justification, as the FBI never developed any evidence to connect Bajracharya to terrorism, and the FBI officer in charge of investigating Bajracharya affirmatively found that he posed no danger as early as November 1, 2001. No one at the FBI or the BOP had any reason to suspect Bajracharya of posing a danger. The only reason Bajracharya was ever suspected of a connection to terrorism was his “Arab” appearance.
243. Bajracharya was charged with a section 237(a)(1)(B) overstay. He attended an immigration hearing at MDC on November 1, 2001 and another on November 19, 2001, during which the immigration attorney assigned to his case sought and received a continuance, as FBI clearance to release Bajracharya had not yet been received from Washington DC. Bajracharya did not have counsel present at that hearing. Ms. Cassin was first able to meet with Bajracharya at MDC for his next immigration hearing on December 6, at which the government acknowledged that Bajracharya had been cleared by the FBI and agreed to voluntary departure. Based on the immigration judge’s instructions, Cassin bought Bajracharya an airplane ticket to Katmandu through a deportation officer, but that departure date was cancelled without explanation.
244. Bajracharya was deported to Nepal on January 13, 2002. Cassin and Wynne brought a suit to MDC and provided it to an assistant warden there so that Bajracharya would, at least, have clothing to fly home in. Instead, he was taken to a plane in an orange jumpsuit and shackles. Bajracharya’s treatment at the ADMAX SHU profoundly affected him, and continues to affect him. Since his release, he has felt introverted, is quicker to anger, and is less inclined to leave his home and visit with friends. He has trouble sleeping, and feels as though he has lost himself.
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Ibrahim Turkmen 245. Ibrahim Turkmen entered the United States through New York City on a tourist visa in
early October 2000 to visit an old friend from Turkey who lived on Long Island. 246. In late October 2000, Turkmen, at his friend’s suggestion, found work at a service
station in Bellport, Long Island. He worked there several days a week until mid-January 2001, when he took a job at another service station in the same town. In mid-April 2001, he began working part-time for a locally-based Turkish construction company.
247. From his arrival in the United States until he was taken into INS custody, Turkmen frequently called his wife and four daughters back in Turkey. While dearly missing them, he decided to remain in the United States to provide for their support. Each week, Turkmen sent most of his meager earnings home to his family.
248. Turkmen spoke almost no English when he came to the United States. While here, he learned barely enough English words to conduct his limited daily business. At the time that he was taken into custody, Turkmen understood very little spoken English, and he could not read English at all.
249. At about 2:30 p.m. on October 13, 2001, slightly more than a month after the September 11 terrorist attacks, two FBI agents visited Turkmen at the apartment where he was staying with several Turkish friends in West Babylon, New York. Without advising him of his right to counsel, they asked Turkmen whether he had any involvement in the September 11 terrorist attacks and whether he had any association with terrorists. They also inquired as to his immigration status, among other things.
250. Turkmen had great difficulty understanding the FBI agents’ questions given his limited knowledge of English and the lack of an interpreter. All the same, he did his best to answer
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truthfully. He denied any involvement with terrorists, terrorist organizations, or terrorist activity. The FBI agents, nonetheless, accused Turkmen of being an associate of Osama bin Laden, placed him under arrest, confiscated his personal items (passport, identification, credit cards, etc.) and money, and searched his home without his consent. Turkmen was fully interviewed on October 13, 2001 and no information was uncovered to connect him to the terrorism investigation.
251. Turkmen came to the attention of the FBI when his landlord called the FBI hotline to report that she rented an apartment in her home to several Middle Eastern men, and she “would feel awful if her tenants were involved in terrorism and she didn’t call.” The FBI knew that her only basis for suspecting these men was that they were Middle Eastern; indeed, she reported that they were good tenants, and paid their rent on time.
252. Turkmen was taken to an INS facility in Nassau County, fingerprinted, and further interrogated, this time by an INS official. Once again, he was not advised of his right to counsel. Due to his limited knowledge of English and the lack of an interpreter, Turkmen again had great difficulty understanding the questions. Still, he did his best to answer them truthfully. Turkmen again denied any involvement with terrorists, terrorist organizations, or terrorist activity, and requested a hearing before an immigration judge to determine whether he could remain in the United States. He was held at the Nassau County INS facility for five or six hours.
253. That evening, at approximately 11:30 p.m., Turkmen was brought to another INS facility in Manhattan, where INS officials asked him still more questions in English. Despite great difficulty understanding the questions, and without the aid of an interpreter, Turkmen again did his best to answer them truthfully. For the third time, he denied any involvement with terrorists, terrorist organizations, or terrorist activity.
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254. Turkmen’s interrogators then instructed him to sign various immigration papers which he could not read because they were in English. Afraid that he would only make matters worse for himself if he refused to comply, Turkmen reluctantly signed the papers.
255. Early the next morning, October 14, 2001, Turkmen was taken to the Passaic County Jail in Paterson, New Jersey, where he remained confined, except for a single trip to Immigration Court in Newark, New Jersey, until February 25, 2002, a period of nearly four and one-half months.
256. Shortly after arriving at the Passaic County Jail, Turkmen received a Notice to Appear from the INS, charging him with overstaying his visa and scheduling a hearing at Immigration Court in Newark, New Jersey on October 31, 2001. On the same date, he received a Notice of Custody Determination and requested a re-determination of the custody decision by an immigration judge.
257. On October 29, 2001, two FBI agents visited Turkmen at the Passaic County Jail. They asked him still more questions about his immigration status, his reasons for entering the United States, his work experience, his religious beliefs, and other personal matters. Another Turkish 9/11 detainee fluent in English translated the questions for Turkmen, who answered them all truthfully. For the fourth time, he denied any involvement with terrorists, terrorist organizations, or terrorist activities.
258. Two days later, on October 31, 2001, Turkmen was taken to Immigration Court in Newark, New Jersey, where he appeared pro se before an Immigration Judge. Once again, he was not advised of his right to counsel. While an interpreter was present, the interpreter was not of Turkish descent and was fluent in neither Turkish nor English. After conceding that he had overstayed his tourist visa, Turkmen accepted a voluntary departure order requiring him to leave
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the United States by November 30, 2001. He declined to request bond because the judge assured him that he would be allowed to return to Turkey within a matter of days. The INS never appealed the voluntary departure order issued to Turkmen.
259. When he returned to the Passaic County Jail later that day, Turkmen called a friend to ask him to purchase a plane ticket for Turkmen’s return to Turkey. Two days later, on November 2, 2001, Turkmen’s friend brought the ticket to the INS offices in Newark, New Jersey. Turkmen remained, nonetheless, in the Passaic County Jail for nearly four more months, until February 25, 2002. The INS prevented his compliance with the Immigration Judge’s voluntary departure order and thereby caused an automatic entry of an order of removal with a future bar on reentry for 10 years.
260. While confined in the Passaic County Jail, Turkmen was not allowed to call his wife and four daughters back home in Turkey. He learned through a friend, however, that his wife had been hospitalized for a month with an undisclosed ailment so serious that she lost most of her hair and teeth. Upon learning this, Turkmen was beside himself with worry. Unable even to call his seriously ailing wife, he suffered extreme emotional distress.
261. While confined in the Passaic County Jail, Turkmen was deliberately denied the ability to observe the mandatory practices of his religion, for example, by regularly interrupting his daily prayers and refusing to serve him Halal food.
262. On November 1, 2001, Mueller sent an electronic communication requesting CIA name traces on dozens of detainees, including Turkmen, for whom the FBI had found no link to the September 11 terrorist attacks or any other terrorist activity, organization, or plans. Mueller indicated that the detainees would probably be released within seven days. Turkmen was
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detained for months longer. A November 16, 2001 memo from the regional director of the INS indicated that the FBI’s interest in Turkmen was “unknown.”
263. On January 14, 2002, more than three months after he was taken into custody and more than two and one-half months after he received a voluntary departure order, the Assistant Special Agent in Charge of the New York FBI indicated to the INS that Turkmen had been cleared on any connection to terrorism. A few days later, on January 17, 2002, Turkmen was visited by an INS agent. The agent informed Turkmen that he had been “cleared” by the FBI but still needed to be “cleared” by the INS. When Turkmen asked how long the latter “clearance” might take, the agent replied that he did not know. On January 31, the INS acknowledged that Turkmen was not of interest to the FBI and thus removed him from the INS custody list, thereby clearing him to be deported.
264. On February 17, 2002, Turkmen was visited by another INS agent, who told Turkmen that he had received INS “clearance” and would be allowed to depart the United States within the next two weeks. Eight days later, on February 25, 2002, INS agents took Turkmen in handcuffs from the Passaic County Jail to Newark Airport, where they put him on a plane to Istanbul, Turkey, without a single penny or lira in his pocket. Although Turkmen requested the return of $52 confiscated from him at the time of his arrest—money that he needed to pay for, among other things, the eight-hour bus trip from Istanbul Airport to his home in the City of Konya—that request was denied.
265. As soon as Turkmen debarked from the plane at Istanbul Airport, he was met by a Turkish police officer, who escorted him to a nearby police station, where he was interrogated for about an hour concerning his four-and-one-half month detention in the United States. Once again, Turkmen denied any involvement with terrorists, terrorist organizations, or terrorist
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activity. After the interrogation concluded, he was allowed to leave for Konya, though he still had no money to buy the bus ticket. Only the kindness of a complete stranger who lent the necessary funds permitted Turkmen to return home.
266. Turkmen was again interrogated at length concerning his detention in the United States, this time by Konya’s Security Intelligence Division, following the filing of this lawsuit on April 17, 2002. At the close of the interrogation, the Division’s Superintendent told him to “be careful.” Approximately 10 days later, Turkmen’s father was contacted by the Head of Gendarmerie in Konya’s Karapinar District, Turkmen’s birthplace, to ascertain Turkmen’s current address, ostensibly to “give to the human rights organizations that are trying to reach Turkmen.” Several days later, the Head of Gendarmerie in Konya’s Cumra District asked Turkmen’s former employer for Turkmen’s personnel file. After reviewing the file, that gendarme took with him all the documents relating to Turkmen’s 16 years of public service.
267. The presumption of guilt thus follows Turkmen even after his deportation from the United States, despite the fact that he has never been involved in terrorist activity and the complete absence of any evidence of his involvement in such activity. Because of this presumption, Turkmen is deemed a “security risk” and is thus unable to return to his prior government position.
268. Turkmen continues to suffer the emotional and psychological effects of his four and one-half months detention in the United States. He regularly experiences nightmares about his detention, making it difficult for him to sleep. Akhil Sachdeva
269. Plaintiff Akhil Sachdeva is a native of India and a landed resident in Canada. In late September or early October 2001, Sachdeva returned to the United States from Canada to
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finalize his divorce from his wife and collect his personal belongings for his move back to Canada. Sometime in late November 2001, an FBI agent visited the gas station owned by Sachdeva’s ex-wife in Port Washington, New York, looking for a Muslim employee. Not finding that individual, the agent left a message for Sachdeva’s ex-wife to contact the agent. She, in turn, asked Sachdeva to do so.
270. Sachdeva came to the attention of the FBI when a New York City fireman called the FBI hotline and reported that he had overheard two gas station employees “of Arab descent” having a conversation in Arabic and English, and the English included some discussion of flight simulators and flying.
271. In early December 2001, Sachdeva called the FBI agent, who asked Sachdeva to come to the agent’s offices for an interview. Sachdeva agreed to do so. On December 9, 2001, Sachdeva met with two FBI agents at 26 Federal Plaza in Manhattan. They proceeded to question him at length about the September 11 terrorist attacks and his religious beliefs, among other things, though without advising him of his right to counsel or his right to remain silent. At the close of the interrogation, the agents examined Sachdeva’s personal identification before allowing him to leave.
272. Sachdeva continued to close out his affairs in the United States in anticipation of his move back to Canada. In the early morning of December 20, 2001, while at his uncle’s apartment, Sachdeva was arrested by INS agents. He was taken to the INS offices at 26 Federal Plaza, where he was interrogated for five hours about his ties to the September 11 terrorist attacks. At the close of the interrogation, INS agents confiscated all of Sachdeva’s personal identification. He was then taken to Passaic County Jail. A memorandum from the interview of Sachdeva on December 20, 2001, the day of his arrest, indicates that the FBI had no further
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interest in Sachdeva related to the PENTTBOM investigation. Because no one asserted an investigative interest in Sachdeva, the New York INS office indicated to INS headquarters that FBI interest in Sachdeva was “undetermined.” The FBI did not officially clear Sachdeva until January 30, 2002, over a month later.
273. On December 27, 2001, while confined in Passaic County Jail, Sachdeva received a Notice to Appear, charging him with illegal re-entry. (He had overstayed a prior voluntary departure order.) Sachdeva had a hearing on December 31, 2001, in Immigration Court in Newark, New Jersey. He was not given any extra clothing for the trip, despite the extreme cold. The immigration judge told Sachdeva that he would be deported to Canada or India “within 30 days.” The INS did not appeal that final deportation order. A February 14, 2002 INS document lists Sachdeva as “ready to remove.” Even though the INS could have effectuated Sachdeva’s removal from the United States within a matter of days, Sachdeva was detained for another three and one-half months, until April 17, 2002.
274. On April 17, 2002, INS agents took Sachdeva, in old clothes, from Passaic County Jail to Newark Airport, putting him on a plane to Canada, though without his personal identification or any money. Prior to his deportation, Sachdeva requested the return of these items. His requests were denied.
275. Sachdeva continues to suffer the effects of his detention in the United States long after his deportation. Upon his return to Canada, Canadian immigration officials suspended his landed immigrant status, taking away Sachdeva’s work papers. The presumption of guilt thus continued to attach to Sachdeva after his deportation from the United States, despite the fact that he has never been engaged in terrorist activity and the complete absence of any evidence that he has been engaged in such activity..
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FIRST CLAIM FOR RELIEF Fifth Amendment: Due Process – Conditions of Confinement 276. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 277. MDC Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 278. By adopting, promulgating, and implementing the policy and practice under which MDC Plaintiffs and class members were unreasonably detained and subjected to outrageous, excessive, cruel, inhumane, punitive and degrading conditions of confinement, Defendants, acting under color of law and their authority as federal officers, intentionally or recklessly deprived MDC Plaintiffs and class members of their liberty interests without due process of law in violation of the Fifth Amendment to the United States Constitution. 279. As a result of Defendants’ unlawful conduct, MDC Plaintiffs and class members have suffered physical and psychological injury, emotional distress, humiliation, embarrassment, and monetary damages.
SECOND CLAIM FOR RELIEF Fifth Amendment: Equal Protection – Conditions of Confinement 280. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 281. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 282. In subjecting Plaintiffs and class members to harsh treatment not accorded similarlysituated non-citizens, Defendants, acting under color of law and their authority as federal officers, singled out Plaintiffs and class members based on their race, religion, and/or ethnic or
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national origin, and intentionally violated their rights to equal protection of the law under the Fifth Amendment to the United States Constitution.
283. As a result of Defendants’ unlawful conduct, Plaintiffs and class members have suffered physical and psychological injury, emotional distress, humiliation, embarrassment, and monetary damages.
THIRD CLAIM FOR RELIEF First Amendment: Free Exercise of Religion 284. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 285. Plaintiffs Ibrahim Turkmen, Ahmer Iqbal Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, and Saeed Hammouda bring this claim on their own behalf and on behalf of the class against all Defendants. 286. Defendants adopted, promulgated, and implemented policies and practices intended to deny Plaintiffs and class members the ability to practice and observe their religion. These policies and practices have included, among other things, the visitation of verbal and physical abuse upon Plaintiffs and class members, and the deliberate denial of all means by which they could maintain their religious practices, including access to Halal food and daily prayer requirements. By such mistreatment, Defendants, acting under color of law and their authority as federal officers, have intentionally or recklessly violated Plaintiffs’ and class members’ right to free exercise of religion guaranteed to them under the First Amendment to the United States Constitution. 287. As a result of Defendants’ unlawful conduct, Plaintiffs and class members have suffered psychological injury, emotional distress, humiliation, embarrassment, and monetary damages.
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FOURTH CLAIM FOR RELIEF First Amendment: Communications Blackout and Interference with Counsel 288. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 289. MDC Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 290. By adopting, promulgating, and implementing the policy and practice under which MDC Plaintiffs and class members were subjected to a “communications blackout” and other measures while in detention that interfered with their access to family, lawyers and the courts, Defendants intentionally or recklessly violated MDC Plaintiffs’ rights to obtain access to legal counsel and to petition the courts for redress of their grievances, in violation of their rights under the First Amendment of the United States Constitution. 291. As a result of Defendants’ unlawful conduct, MDC Plaintiffs and class members have suffered psychological injury, emotional distress, humiliation, embarrassment, and monetary damages.
FIFTH CLAIM FOR RELIEF Fifth Amendment: Due Process – Blackout and Interference with Counsel 292. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 293. MDC Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 294. By adopting, promulgating, and implementing the policy and practice under which Plaintiffs and class members were subjected to a “communications blackout” and other measures while in INS detention that interfered with their access to family, lawyers and the courts, Defendants intentionally or recklessly violated MDC Plaintiffs’ rights to obtain access to legal
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counsel and to petition the courts for redress of their grievances, in violation of their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution.
295. MDC Plaintiffs and class members have no effective means of enforcing their Fifth Amendment rights other than by seeking declaratory and other relief from the Court.
296. As a result of Defendants’ unlawful conduct, MDC Plaintiffs and class members have suffered psychological injury, emotional distress, humiliation, embarrassment, and monetary damages.
SIXTH CLAIM FOR RELIEF Fourth and Fifth Amendments: Excessive, Unreasonable, and Deliberately Humiliating
and Punitive Strip-searches 297. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 298. The MDC Plaintiffs bring this claim on their own behalf and on behalf of the class against all MDC Defendants. 299. By subjecting MDC Plaintiffs and class members to excessive and unreasonable stripsearches with no rational relation to a legitimate penological purpose when Defendants had no reasonable suspicion or rational reason to justify a strip-search, and conducting the searches in a deliberately humiliating manner that was not reasonably related to any legitimate penological purpose, MDC Defendants intentionally or recklessly violated MDC Plaintiffs’ and class members’ rights to privacy and to be free from unreasonable searches, in violation of their rights under the Fourth Amendment to the United States Constitution 300. MDC Defendants were grossly negligent and/or deliberately indifferent in their supervision of MDC staff who subjected MDC Plaintiffs and class members to these excessive and punitive strip-searches and thereby violated MDC Plaintiffs’ and the plaintiff class’s rights under the Fourth Amendment to the United States Constitution.
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301. By creating and approving the policy and practice under which MDC Plaintiffs and class members were subjected to these punitive strip-searches MDC Defendants intentionally or recklessly violated MDC Plaintiffs’ and class members’ right to be free from punishment under the Due Process Clause of the Fifth Amendment to the United States Constitution
302. As a result of Defendants’ unlawful conduct, MDC Plaintiffs and class members have suffered psychological injury, emotional distress, humiliation, embarrassment, and monetary damages.
SEVENTH CLAIM FOR RELIEF (42 U.S.C. § 1985: Conspiracy to Violate Civil Rights) 303. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 304. Plaintiffs bring this claim on their own behalf and on behalf of the class against all Defendants. 305. Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk, Sherman, Lopresti and Cuciti, by agreeing to implement a policy and practice whereby Plaintiffs were harassed, physically and verbally abused, subjected to harsh and punitive conditions of confinement, subjected to routine and unreasonable strip-searches, burdened in their exercise of their religious beliefs, denied adequate recreation, nutrition, access to counsel and communication with the outside world because of their race, religion, ethnicity and national origin, conspired to deprive Plaintiffs of the equal protection of the law and of equal privileges and immunities of the laws of the United States, resulting in injury to Plaintiffs’ person and property, in violation of 42 U.S.C. § 1985(3). 306. As a result of Defendants’ unlawful conduct Plaintiffs suffered physical injury and emotional distress and are accordingly entitled to compensatory damages against all Defendants.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs and class members respectfully request that the Court enter a
class-wide judgment:
1. Certifying this suit as a class action;
2. Awarding compensatory and punitive damages to Plaintiffs and class members for the
constitutional violations they suffered in an amount that is fair, just, reasonable, and in
conformity with the evidence;
3. Awarding Plaintiffs attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and
4. Ordering such further relief as the Court considers just and proper.
Dated: New York, New York September 13, 2010
Respectfully submitted,
/s/Rachel Meeropol Rachel Meeropol Michael Winger Sunita Patel William Quigley* CENTER FOR CONSITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 Tel.: (212) 614-6432 Fax: (212) 614-6499
C. William Phillips Joanne Sum-Ping Pamela Sawhney COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, New York 10018-1405 Tel.: (212) 841-1000 Fax: (212) 841-1010
* Not admitted in New York; admitted in Louisiana.
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73 Spring St., Suite 402 New York, New York 10012

ROBERT GOLDMAN Attorney-at-Law

917-553-2380

December 7, 2004
Clerk of the Court U.S.D.C. E.D.N.Y. 225 Cadman Plaza E. Brooklyn, New York 11201
RE: Turkmen v. Ashcroft, et al. 02-CV-2307
D .ar Madam or Sir: T, ~ undersigned represents defendant William Beck. Enclosed for filing please find his answer to the complaint w. ich I have this date also served upon counsel for Plaintiffs.
Thank you for your courtesy.
Respectfully,

Robert Goldman
Cc: Nancy Chang, Esq. Center for Constitutional Rights

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UNITED STATES DISTRICT COURT E__A__S__T__E__R__N___D__I_S_T__R__I_C__T___O__F___N__E__W___Y__O___R__K_X
IBRAHIM TURKMAN; ASJF-UR-REHMAN SAFFI; SYED AMJAD ALI JAFFRI; YASSER EBRAHIM; HANY IBRAHIM; SHAKIR BALOCH; AKHIL SACHDEVA; and ASHRAF IBRAHIM, on behalf of themselves and all others similarly situated,
Plaintiffs,

(:1q) Civil Action No, 02 CV 2307

(C LP

-against-

ANSWER

JOHN ASHCROFT, Attorney General of the United States ROBERT MUELLER, Director of the Federal Bureau of Investigation JAMES W. ZIGLAR, Conunissioner of the Immigration and Naturalization Service DENNIS HASTY, fanner Warden, Metropolitan Detention Center MICHAEL ZENK, Warden, Metropolitan Detention Center SHER1v:lAN, fanner Associate Warden for Custody, Metropolitan Detention Center SALVATORE LOPRESTI, Captain, Metropolitan Detention Center STEVEN BARRERE, Lieutenant, Metropolitan Detention Center WILLIAM BECK, Lieutenant, Metropolitan Detention Center LINDSEY BLEDSOE, Lieutenant, Metropolitan Detention Center JOSEPH CUCITI, Lieutenant, Metropolitan Detention Center HOWARD GUSSAK, Lieutenant, Metropolitan Detention Center MARCIAL MUNDO, Lieutenant, Metropolitan Detention Center DANIEL ORTIZ, Lieutenant, Metropolitan Detention Center STUART PRAY, Lieutenant, Metropolitan Detention Center ELIZABETH TORRES, Lieutenant, Metropolitan Detention Center PHILLIP BARNES, Correctional Officer, Metropolitan Detention Center SIDNEY CHASE, Correctional Officer, Metropolitan Detention Center MICHAEL DEFRANCISCO, Correctional Officer, Metropolitan Detention Center RICHARD DIAZ, Correctional Officer, Metropolitan Detention Center KEVIN LOPEZ, Correctional Officer, Metropolitan Detention Center MARIO MACHADO, Correctional Officer, Metropolitan Detention Center MICHAEL MCCABE, Correctional Officer, Metropolitan Detention Center RAYMOND MICKENS, Correctional Officer, Metropolitan Detention Center JOHN OSTEEN, Correctional Officer, Metropolitan Detention Center BRIAN RODRIGUEZ, Correctional Officer, Metropolitan Detention Center SCOTT ROSEBERY, Correctional Officer, Metropolitan Detention Center CHRISTOPHER WITSCHEL, Correctional Officer, Metropolitan Detention Center RAYMOND COTTON, Counselor, Metropolitan Detention Center CLEMMENT SHACKS, Counselor, Metropolitan Detention Center CUFFEE, Counselor, Metropolitan Detention Center

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 3 of 36
"JOHN DOES," NOS 1-20, Corrections Officers, Metropolitan Detention Center and the UNITED STATES,
Defendants. _________________________________________________ X
Defendant, William Beck, (referred to herein as "Defendant Beck"), as and for the answer to the Plaintiffs' Third Amended Complaint, respectfully alleges the following:
1. Admits that some of the plaintiffs were detained at the Metropolitan Detention Center ("MDC"), in Brooklyn, New York, in the Administrative Maximum Special Housing Unit ("ADMAX SHU,") and except as so admitted, denies the remaining allegations contained in paragraph 1 of the Complaint. 2. Denies knowledge or information sufficient to fonn a belief as to the allegations contained in paragraph 2 of the Complaint. 3. Denies the allegations contained in paragraph 3 of the Complaint and refers all questions oflaw to the Court at the trial of this action. 4. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 4 of the Complaint.
s. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 5 ofthe Complaint. 6. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 6 of the Complaint. 7. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 7 of the Complaint. 8. Denies knowledge or information sufficient to form a belief as to the allegations
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contained in paragraph 8 of the Complaint. 9. Denies the allegations contained in paragraph 9 of the Complaint and refers all questions of law to the Court at the trial of this action. 10. Denies the allegations contained in paragraph 10 of the Complaint and refers all questions oflaw to the Court at the trial of this action.
JURISDICTION AND VENUE 11. Denies the allegations contained in paragraph 11 of the Complaint and refers all questions oflaw to the Court at the trial of this action. 12. Denies the allegations contained in paragraph 12 of the Complaint and refers all questions oflaw to the Court at the trial of this action. 13. Denies the allegations contained in paragraph 13 of the Complaint and refers all questions of law to the Court at the trial of this action. 14. Denies the allegations contained in paragraph 14 of the Complaint and refers all questions oflaw to the Court at the trial of this action.
JURY DEMAND 15. Denies the allegations contained in paragraph 15 of the Complaint and refers all questions oflaw to the Court at the trial of this action.
PARTIES THE MDC PLAINTIFFS 16. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 16 of the Complaint that plaintiff Asif-ur-Rehman Saffi is a native Pakistan and citizen of France where he currently resides, admits that Saffi was
3

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detained in the MDC, and except as so admitted, denies the remaining allegations in paragraph 16 of the Complaint. 17. Denies knowledge or infonnation sufficient to fonn a belief as to the allegations contained in paragraph 17 of the Complaint that plaintiffSyed Amjad Ali Jaffri is a native Pakistan and a landed immigrant of Canada, admits that Jaffri was detained in the MDC, and except as so admitted, denies the remaining allegations in paragraph 17 of the Complaint. 18. Denies knowledge or infonnation sufficient to fonn a belief as to the allegations contained in paragraph 18 of the Complaint that plaintiffs Yasser Ebrahim and Hany Ibrahim, brothers are natives of Egypt, and admits that Ebrahim and H. Ibrahim were detained in the MDC, and except as so admitted, denies the remaining allegations in paragraph 18 of the Complaint. 19. Denies knowledge or infonnation sufficient to fonn a belief as to the allegations contained in paragraph 19 of the Complaint that plaintiff Shakir Baloch is a native Pakistan and landed immigrant in Canada, admits that Baloch was detained in the MDC, and except as so admitted, denies the remaining allegations in paragraph 19 of the Complaint. 20. Denies knowledge or information sufficient to fonn a belief as to the allegations contained in paragraph 20 of the Complaint that plaintiff Ashraf Ibrahim is a native of Egypt, admits that A. Ibrahim was detained in the MDC, and except as so admitted, denies the remaining allegations in paragraph 20 of the Complaint.
THE PASSAIC PLAINTIFFS 21. Denies knowledge or infonnation sufficient to fonn a belief as to the allegations
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contained in paragraph 21 of the Complaint. 22. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 22 of the Complaint.
DEFENDANTS 23. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 23 of the Complaint. 24. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 24 of the Complaint. 25. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 25 of the Complaint.
THE MDC DEFENDANTS 26. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 26 of the Complaint. 27. Denies knowledge and infonnation sufficient to form a belief as to the allegations contained in paragraph 27 of the Complaint. 28. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 28 of the Complaint. 29. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 29 of the Complaint. 30. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 30 of the Complaint. 31. Admits Lieutenant William Beck is and was at the time set forth in the Complaint employed as a Lieutenant at the MDC and except as so admitted denies the remaining
5

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allegations in paragraph 31 of the Complaint. 32. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 32 of the Complaint. 33. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 33 of the Complaint. 34. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 34 of the Complaint. 35. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 35 of the Complaint. 36. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 36 of the Complaint. 37. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 37 of the Complaint. 38. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 38 of the Complaint. 39. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 39 of the Complaint. 40. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 40 of the Complaint. 41. Denies knowledge and infonnation sufficient to form a belief as to the allegations contained in paragraph 41 of the Complaint. 42. Denies knowledge and infonnation sufficient to form a belief as to the allegations contained in paragraph 42 of the Complaint.
6

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43. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 43 of the Complaint.
44. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 44 of the Complaint.
45. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 45 of the Complaint.
46. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 46 of the Complaint.
47. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 47 of the Complaint.
48. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 48 of the Complaint.
49. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 49 of the Complaint.
50. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 50 of the Complaint.
51. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 51 of the Complaint.
52. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 52 of the Complaint.
53. Denies knowledge and information sufficient to fonn a belief as to the allegations contained in paragraph 53 of the Complaint.
CLASS ACTION ALLEGATIONS 7

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 9 of 36
54. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 54 of the Complaint.
55. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 55 of the Complaint.
56. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 56 ofthe Complaint.
57. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 57 of the Complaint.
58. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 58 of the Complaint.
59. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 59 of the Complaint.
60. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 60 of the Complaint.
61. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 61 of the Complaint.
62. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 62 of the Complaint.
63. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 63 of the Complaint.
STATEMENTS OF FACT GENERAL ALLEGATIONS 64. Denies knowledge and information sufficient to form a belief as to the allegations
8

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 10 of 36
contained in paragraph 64 of the Complaint. 65. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations
contained in paragraph 65 of the Complaint. 66. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations
contained in paragraph 66 of the Complaint. 67. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations
contained in paragraph 67 of the Complaint. 68. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations
contained in paragraph 68 of the Complaint. 69. Denies knowledge and information sufficient to fonn a belief as to the allegations
contained in paragraph 69 of the Complaint. 70. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations
contained in paragraph 70 of the Complaint. 71. Denies knowledge and information sufficient to fonn a belief as to the allegations
contained in paragraph 71 of the Complaint. 72. Denies knowledge and information sufficient to fonn a belief as to the allegations
contained in paragraph 72 of the Complaint. 73. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 73 of the Complaint. 74. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 74 of the Complaint. 75. Denies knowledge and information sufficient to fonn a belief as to the allegations
contained in paragraph 75 of the Complaint. 9

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76. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 76 of the Complaint.
INSPECTOR GENERAL'S JUNE 2003 REPORT ON SEPTEMBER 11 DETAINEES 77. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 77 ofthe Complaint. 78. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 78 of the Complaint. 79. Denies knowledge and information sufficient to fonn a belief as to the allegations
contained in paragraph 79 of the Complaint. 80. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 80 of the Complaint. 81. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 81 of the Complaint. 82. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 82 of the Complaint. 83. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 83 of the Complaint. 84. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 84 of the Complaint. THE CHALLENGED MDC POLICIES AND CUSTOMS AND THE INSPECTOR
GENERAL'S DECEMBER 2003 SUPPLEMENTAL REPORT ON THE SEPTEMBER 11 DETAINEES 10

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 12 of 36
85. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 85 of the Complaint.
86. Denies the allegations contained in paragraph 86 of the Complaint. COMMUNICATIONS BLACKOUT AT MDC Policy to Hold Detainees Incommunicado
87. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 87 of the Complaint.
Policy to Deny Detainees Access to Counsel 88. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 88 of the Complaint. 89. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 89 of the Complaint. 90. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 90 of the Complaint. 91. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 91 of the Complaint. 92. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 92 of the Complaint. 93. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 93 of the Complaint. 94. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 94 of the Complaint. 95. Denies knowledge and information sufficient to form a belief as to the allegations
11

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contained in paragraph 95 of the Complaint. 96. Denies knowledge and information sufficient to form a belief as to the allegations
contained in paragraph 96 of the Complaint. Video and Audio Taping Attornev/Client Conversations Policy
97. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 97 of the Complaint.
98. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 98 of the Complaint.
99. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 99 of the Complaint.
Denial of Consular Rights Policy 100. Denies knowledge and information sufficient to fonn a belief as to the allegations contained in paragraph 100 of the Complaint. 101. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 101 of the Complaint. ABUSE AND INHUMANE CONDITIONS OF CONFINEMENT AT MDC
Physical Abuse 102. Denies the allegations contained in paragraph 102 of the Complaint. 103. Denies the allegations contained in paragraph 103 of the Complaint. 104. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 104 of the Complaint. 105. Denies the allegations contained in paragraph 105 of the Complaint. 106. Denies the allegations contained in paragraph 106 of the Complaint.
12

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Verbal Abuse 107. Denies the allegations contained in paragraph 107 of the Complaint insofar as "MDC Staff Members" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and infonnation sufficient to fonn a belief as to the remaining allegations contained in paragraph 107 of the Complaint. 108. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 108 of the Complaint. 109. Denies the allegations contained in paragraph 109 of the Complaint insofar as "MDC Supervisor Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and infonnation sufficient to fonn a belief as to the remaining allegations contained in paragraph 109 of the Complaint.
Physical Restraints 110. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 110 of the Complaint.
Arbitrary and Abusive Strip Searches 111. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 111 of the Complaint. 112. Denies the allegations contained in paragraph 112 of the Complaint insofar as "MDC Staff" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and information sufficient to form a belief as to the remaining allegations contained in paragraph 112 of the Complaint. 113. Denies the allegations contained in paragraph 113 of the Complaint. 114. Denies the allegations contained in paragraph 114 of the Complaint.
13

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115. Denies the allegations contained in paragraph 115 ofthe Complaint. 116. Denies the allegations contained in paragraph 116 of the Complaint insofar as "MDC Supervisor Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 116 of the Complaint.
Sleep Deprivation 117. Denies the allegations contained in paragraph 117 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 117 of the Complaint. 118. Denies the allegations contained in paragraph 118 of the Complaint insofar as "MDC Staff' refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 118 of the Complaint. 119. Denies the allegations contained in paragraph 119 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and information sufficient to form a belief as to the remaining allegations contained in paragraph 119 of the Complaint.
De Facto Denial of Recreation I Inadequate Clothing and Exposure to the Elements 120. Denies the allegations contained in paragraph 120 of the Complaint. 121. Denies the allegations contained in paragraph 121 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and information sufficient to form a belief as to the remaining allegations contained in paragraph 121 of the Complaint. 14

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 16 of 36
Lack of Hygiene Items and Provision of Inadequate and Unhealthy Food 122. Denies the allegations contained in paragraph 122 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and information sufficient to form a belief as to the remaining allegations contained in paragraph 122 of the Complaint. 123. Denies the allegations contained in paragraph 123 of the Complaint. 124. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 124 of the Complaint.
Inadequate Medical Attention 125. Denies the allegations contained in paragraph 125 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and information sufficient to fonn a belief as to the remaining allegations contained in paragraph 125 of the Complaint. 126. Denies the allegations contained in paragraph 126 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies knowledge and information sufficient to form a belief as to the remaining allegations contained in paragraph 126 of the Complaint. 127. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 127 of the Complaint.
Deliberate Interference with Religious Rights 128. Denies the allegations contained in paragraph 128 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 128 of the Complaint.
15

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Campaign of Intentional Infliction of Emotional Distress 129. Denies the allegations contained in paragraph 129 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 129 of the Complaint.
Failure to Provide Handbooks 130. Denies the allegations contained in paragraph 130 of the Complaint insofar as "MDC Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 130 of the Complaint.
Confiscated Items 131. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 131 of the Complaint. 132. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 132 of the Complaint.
Personal Participation of the Defendants 134. Denies the allegations contained in paragraph 134 of the Complaint insofar as "MDC Supervisor Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 134 of the Complaint. 135. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 135 of the Complaint. 136. Denies knowledge and information sufficient to form a belief as to the allegations contained in paragraph 136 of the Complaint.
MDC Supervisor Defendants 16

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 18 of 36
137. Denies the allegations contained in paragraph 137 of the Complaint insofar as "MDC Supervisor Defendants" refer to Defendant Beck and except as so denied, Defendant Beck denies the remaining allegations contained in paragraph 137 of the Complaint. 138. Denies the allegations contained in paragraph 138 of the Complaint. 139. Denies the allegations contained in paragraph 139 of the Complaint. 140. Denies the allegations contained in paragraph 140 of the Complaint. 141. Denies the allegations contained in paragraph 141 of the Complaint.
MDC Correctional Officer Defendants 142. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 142 of the Complaint. 143. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 143 of the Complaint. 144. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 144 of the Complaint. 145. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 145 of the Complaint. 146. Denies knowledge and infonnation sufficient to fonn a belief as to the allegations contained in paragraph 146 of the Complaint.
MDC Counselor Defendants 147. Denies knowledge and infonnation sufficient to form a belief as to the allegations contained in paragraph 147 of the Complaint. 148. Denies knowledge and infonnation sufficient to fonn a belief as to the
17

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 19 of 36

allegations contained in paragraph 148 of the Complaint.

Allegations Concerning the Plaintiffs

MDC PLAINTIFFS

149. Denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 149 of the Complaint.

Plaintiff Asif-ur-Rehman Saffi

150. Denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 150 of the Complaint.

151. Denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 151 ofthe Complaint.

152. Denies knowledge and infonnation sufficient to form a belief as to the

allegations contained in paragraph 152 of the Complaint. 153. Denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 153 of the Complaint.

154. Denies the allegations contained in paragraph 154 of the Complaint.

155. Denies the allegations contained in paragraph 155 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 155 of the Complaint.

156. Denies knowledge and information sufficient to form a belief as to the

allegations contained in paragraph 156 of the Complaint. 157. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 157 of the Complaint.

158. Denies the allegations contained in paragraph 158 of the Complaint insofar as

18

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"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the knowledge and information sufficient to form a belief as to the

remaining allegations contained in paragraph 158 of the Complaint.

159. Denies the allegations contained in paragraph 159 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 159 of the Complaint.

160. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 160 of the Complaint.

161. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 161 of the Complaint.

162. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 162 of the Complaint.

163. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 163 of the Complaint.

164. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 164 of the Complaint.

165. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 165 of the Complaint.

166. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 166 of the Complaint.

167. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 167 of the Complaint.

168. Denies knowledge and information sufficient to form a belief as to the

19

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 21 of 36

allegations

contained in paragraph 168 of the Complaint. Plaintiff Syed Amjad Ali Jaffri

169. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 169 of the Complaint.

170. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 170 of the Complaint.

171. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 171 of the Complaint.

172. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 172 ofthe Complaint.

173. Denies the allegations contained in paragraph 173 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 173 of the Complaint.

174. Denies the allegations contained in paragraph 174 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 174 of the Complaint.

175. Denies the allegations contained in paragraph 175 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 175 of the Complaint.

176. Denies the allegations contained in paragraph 176 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 176 of the Complaint.

177. Denies knowledge and information sufficient to form a belief as to the

20

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 22 of 36

allegations

contained in paragraph 177 of the Complaint.

178. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 178 of the Complaint.

179. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 179 of the Complaint.

180. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 180 of the Complaint.

Plaintiffs Yasser Ebrahim and Hany Ibrahim

181. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 181 of the Complaint.

182. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 182 of the Complaint.

183. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 183 of the Complaint.

184. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 184 of the Complaint.

185. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 185 of the Complaint.

186. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 186 of the Complaint.

187. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 187 of the Complaint.

188. Denies knowledge and information sufficient to form a belief as to the

21

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 23 of 36

allegations

contained in paragraph 188 of the Complaint.

189. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 189 of the Complaint.

190. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 190 of the Complaint.

191. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 191 ofthe Complaint.

192. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 192 of the Complaint.

193. Denies the allegations contained in paragraph 193 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 193 of the Complaint.

194. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 194 of the Complaint.

195. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 195 of the Complaint.

196. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 196 of the Complaint.

197. Denies the allegations contained in paragraph 197 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 197 of the Complaint.

198. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 198 of the Complaint. 22

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 24 of 36

199. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 199 of the Complaint.

200. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 200 of the Complaint.

201. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 201 of the Complaint.

Plaintiff Sbakir Balocb

202. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 202 of the Complaint.

203. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 203 of the Complaint.

204. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 204 of the Complaint.

205. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 205 of the Complaint.

206. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 206 of the Complaint.

207. Denies the allegations contained in paragraph 207 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 207 of the Complaint.

208. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 208 of the Complaint.

209. Denies knowledge and information sufficient to form a belief as to the 23

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 25 of 36

allegations

contained in paragraph 209 of the Complaint.

210. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 210 of the Complaint.

211. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 211 of the Complaint.

212. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 212 of the Complaint.

213. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 213 of the Complaint.

214. Denies the allegations contained in paragraph 214 of the Complaint.

215. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 215 of the Complaint.

216. Denies the allegations contained in paragraph 216 of the Complaint.

217. Denies the allegations contained in paragraph 217 of the Complaint.

218. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 218 of the Complaint.

219. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 219 of the Complaint.

220. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 220 of the Complaint.

221. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 221 of the Complaint.

222. Denies knowledge and infonnation sufficient to form a belief as to the

24

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 26 of 36

allegations

contained in paragraph 222 of the Complaint.

Plaintiff Ashraf Ali Ibrabim

223. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 223 of the Complaint.

224. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 224 of the Complaint.

225. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 225 of the Complaint.

226. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 226 of the Complaint.

227. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 227 of the Complaint.

228. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 228 of the Complaint.

229. Denies the allegations contained in paragraph 229 of the Complaint insofar as

"MDC Defendants" refer to Defendant Beck and except as so denied, Defendant

Beck denies the remaining allegations contained in paragraph 229 of the Complaint.

230. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 230 of the Complaint.

231. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 231 of the Complaint.

232. Denies the allegations contained in paragraph 232 ofthe Complaint.

25

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 27 of 36

233. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 233 of the Complaint.

234. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 234 of the Complaint.

235. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 235 of the Complaint.

236. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 236 of the Complaint.

237. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 270 of the Complaint.

238. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 238 of the Complaint.

239. Denies the allegations contained in paragraph 239 of the Complaint.

240. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 240 of the Complaint.

241. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 241 of the Complaint.

242. Denies the allegations contained in paragraph 242 of the Complaint.

243. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 243 of the Complaint.

244. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 244 of the Complaint.

245. Denies knowledge and information sufficient to form a belief as to the

26

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 28 of 36

allegations

contained in paragraph 245 of the Complaint.

246. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 246 of the Complaint.

247. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 247 of the Complaint.

248. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 248 of the Complaint.

249. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 249 of the Complaint.

250. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 250 of the Complaint.

PASSAIC PLAINTIFFS

251. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 251 of the Complaint.

Plaintiff Ibrahim Turkman

252. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 252 of the Complaint.

253. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 253 of the Complaint.

254. Denies knowledge and infonnation sufficient to form a belief as to the

allegations

contained in paragraph 254 of the Complaint.

255. Denies knowledge and information sufficient to form a be1iefas to the

allegations

contained in paragraph 255 of the Complaint.

27

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 29 of 36

256. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 256 of the Complaint.

257. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 257 of the Complaint.

258. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 258 ofthe Complaint.

259. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 259 of the Complaint.

260. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 260 of the Complaint.

261. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 261 of the Complaint.

262. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 262 ofthe Complaint.

263. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 263 of the Complaint.

264. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 264 of the Complaint.

265. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 265 of the Complaint.

266. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 266 of the Complaint.

267. Denies knowledge and information sufficient to form a belief as to the

28

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 30 of 36

allegations

contained in paragraph 267 of the Complaint.

268. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 268 of the Complaint.

269. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 269 of the Complaint.

270. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 270 of the Complaint.

271, Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 271 of the Complaint.

272. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 272 of the Complaint.

273. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 273 of the Complaint.

274. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 274 of the Complaint.

275. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 275 of the Complaint.

276, Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 276 ofthe Complaint.

Plaintiff Akhil Sachdeva

277. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 277 of the Complaint.

278. Denies knowledge and information sufficient to form a belief as to the

29

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 31 of 36

allegations

contained in paragraph 278 of the Complaint.

279. Denies knowledge and information sufficient to form a heliefas to the

allegations

contained in paragraph 279 of the Complaint.

280. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 280 of the Complaint.

281. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 281 of the Complaint.

282. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 282 of the Complaint.

283. Denies knowledge and information sufficient to form a belief as to the

allegations

contained in paragraph 283 of the Complaint.

284. Denies knowledge and information sufficient to fonn a belief as to the

allegations

contained in paragraph 284 of the Complaint.

285. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 285 of the Complaint.

286. Denies knowledge and infonnation sufficient to fonn a belief as to the

allegations

contained in paragraph 286 of the Complaint.

30

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 32 of 36
ANSWERS TO CLAIMS FOR RELIEF 287. Defendant incorporates by reference each and every answer contained in the paragraphs preceding the following paragraphs as if fully set forth therein: 287, 292, 297, 302,307,312,317,322,327,332,338,344,350,356,362,368,374,379,384,389,394, 399,404,414,418,422,426,431,435,441, and 445. 288. Defendant Denies the Allegations of paragraphs: 288, 289, 290, 291, 293, 294, 295, 296,298,299,300,301,303,304,305,306,308,309,310,311,313,314,315,316,318, 319,320,321,323,324,325,326,328,329,330,331,333,334,335,336,337,339,340, 341,342,343,345,346,347,348,349,351,352,353,354,355,357,358,359,360,361, 363,364,365,366,367,369,370,371,372,373,375,376,377,378,380,381,382,383, 385,386,387,388,390,391,392,393,395,396,397,398,400,401,402,403,405,406, 407,408,409,410,411,412,413,415,416,417,419,420,421,423,424,425,427,428, 429,430,432,433,434,436,437,438,439,440,442,443,444,446,447,448,449,450.
AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE Plaintiffs have failed to state a claim upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Plaintiffs' claims are barred by the applicable statute of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE This court lacks subject matter jurisdiction over all or some of the claims of this action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Plaintiff claims are barred by the doctrines of waiver, estoppel and laches. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 33 of 36
Plaintiffs lack standing to sue. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Plaintiffs may not maintain all or part of the claims of this action based on the doctrine of sovereign immunity.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE This Court lacks the subject matter jurisdiction under the Alien Tort Claims Act.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to a jury trial on all or some of the claims herein.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE Plaintiffs failed to comply with the jurisdictional prerequisites required to maintain this action.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE Defendant Beck's actions alleged in the Complaint are protected under the qualified immunity doctrine.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Defendant Beck's actions alleged in the Complaint are protected under the doctrine of absolute immunity.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Plaintiffs may not maintain this action due to their failure to exhaust their administrative remedies.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE At all times alleged in the Complaint, Defendant Beck was acting pursuant to established policies, regulations and procedures established by his employer.

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 34 of 36
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE All of Defendant Beck's actions alleged in the Complaint were reasonably related to the BOP'sIMDC's interest in maintaining jail security.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Insofar as the allegations against Defendant Beck, plaintiffs had no right to counsel during the times alleged in the Complaint.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs' claims against Defendant Beck are barred by the Liability Reform Act (28 USC, sec. 2679.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs' detention was objectively reasonable.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiffs' claims are barred since maintenance of safety or order in the prison context is a compelling.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE Plainti ff may not maintain this action since they failed to invoke the procedures for religious accommodations.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs are barred from recovery under the "unclean hands" doctrine.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs are barred from recovery since equity requires that they not benefit from their own wrong doing.

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 35 of 36

Dated: New York, New York December 6, 2004
TO: Nancy Chang Barbara J. Olshansky Rachel Meeropol Shayana Kadida1 Jennifer Green Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012

By: \1[ 11k Robert Go1dm Attorney for Defendant William Beck 73 Spring Street Suite 402 New York, New York 10012

Case 1:02-cv-02307-JG-SMG Document 162 Filed 12/09/2004 Page 36 of 36

 </s> Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 1 of 13

Rachel Meeropol (RM 3878) Matthew Strugar (MS 2053) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6432

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x TURKMEN, et a!.,

02 CV 2307 (JG) (SMG)

Plaintiffs, -v-

Notice of Motion For Voluntary Dismissal

ASHCROFT, et a!. Defendants.
------------------------------ x

PLEASE TAKE NOTICE that Plaintiff SYED AMJAD ALI JAFFRI, through his

undersigned counsel, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure,

respectfully moves this Court for voluntary dismissal of his claims against Defendants

STEVEN BARRERE, WILLIAM BECK, LINDSAY BLEDSOE, SIDNEY CHASE,

RAYMOND COTTON, JOSEPH CUCITI, JAMES CUFFEE, MICHAEL

DEFRANCISCO, HOWARD GUSSAK, DENNIS HASTY, KEVIN LOPEZ,

SALVATORE LOPRESTI, RAYMOND MICKENS, MICHAEL MCCABE, MARCIAL

MUNDO, JOHN OSTEEN, STUART PRAY, BRIAN RODRIGUEZ, SCOTT

ROSEBERRY, CLEMMET SHACKS, JAMES SHERMAN, ELIZABETH TORRES,

CHRISTOPHER WITSCHEL and MICHAEL ZENK without prejudice to Plaintiff

Jaffri's right to relief as a member of the class alleged in the complaint. Plaintiff Jaffri

moves for dismissal solely as to his own claims, without prejudice to the rights of any

other plaintiffs or putative class members, for the reasons set forth in the Declaration of

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 2 of 13

Rachel Meeropol, and the accompanying Memorandum in Support of Mr. Jaffri' s Motion

for Voluntary Dismissal, attached to this motion.

PLEASE TAKE FURTHER NOTICE that papers in opposition to this motion, if

any, must be served and filed within ten business days of service of this motion.

Dated: June 15,2006 New York, New York

Respectfully Submitted,

/s Rachel Meeropol RM 3878 Attorney for Plaintiffs Center for Constitutional Rights 666 Broadway, 7th Floor
New York, NY 10012 212-614-6432

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 3 of 13

Rachel Meeropol (RM 3878)
Matthew Strugar (MS 2053) CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7'h Floor
New York, New York 10012 (212) 614-6432

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x TURKMEN, et a!.,

02 CV 2307 (JG) (SMG)

Plaintiffs, -v-
ASHCROFT, et a!. Defendants.

Declaration of Rachel Meeropol in Support of Motion for Voluntary Dismissal
x

I, Rachel Meeropol, declare under penalty of pe\jury that the following is true and correct:
1. I am an attorney at law and I have appeared as counsel on behalf of Plaintiff SYED AMJAD ALI JAFFRL I submit this declaration in support of Plaintiff Jaffri's motion for voluntary dismissal of his claims against Defendants STEVEN BARRERE, WILLIAM BECK, LINDSAY BLEDSOE, SIDNEY CHASE, RAYMOND COTTON, JOSEPH CUCITI, JAMES CUFFEE, MICHAEL DEFRANCISCO, HOWARD GUSSAK, DENNIS HASTY, KEVIN LOPEZ, SALVATORE LOPRESTI, RAYMOND MICKENS, MICHAEL MCCABE, MARCIAL MUNDO, JOHN OSTEEN, STUART PRAY, BRIAN RODRIGUEZ, SCOTT ROSEBERRY, CLEMMET SHACKS, JAMES SHERMAN, ELIZABETH TORRES, CHRISTOPHER WITSCHEL and MICHAEL ZENK without prejudice to Mr. Jaffri's right to relief as a member of the class alleged in the complaint. I submit this declaration in support of dismissal of Mr. Jaffri's claims only.

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 4 of 13
2. When the Third Amended Complaint in this action was filed on September 13, 2004, M1'. Jaffri believed, and presently believes, that the allegations contained in the complaint are true.
3. Plaintiff Jaffri moves for voluntary dismissal under Rule 41(a)(2) because he is no longer willing to take the steps necessary to prosecute his individual claims, or seek class representative status.
4. On May 18,2006 the Honorable Magistrate Judge Steven M. Gold denied Plaintiff Jaffri's application to adjourn his deposition and independent medical examination, previously scheduled for June 12-14, 2006 in Toronto, Canada, or in the alternative to have his deposition held by telephone.
5. On May 29, 2006 Mr. Jaffri informed my office that he does not wish to proceed with the strenuous and emotionally taxing business of litigating his case, and that he would not travel to Toronto Canada, from his home in Pakistan, for his deposition and medical examination. On May 30, 2006, my office infOlwed counsel for the United States of Mr. Jaffri's decision.
6. On June 5, 2006, I informed all defense counsel of Mr. Jaffri's decision, and indicated Mr. Jaffri's plans to dismiss his case by notice against those Defendants who have not yet answered, including the Defendants United States, John Ashcroft, Robert Mueller, James Zigler, Philip Barnes, and Daniel Ortiz. Notations of Default have been entered against Defendants Barnes and Ortiz (See Docket Entries # 344, 349) and the Motion to Dismiss on behalf of the Defendants United States, Ashcroft, Mueller and Zigler was granted in part and denied in part by this Court on June 14,2006 (See Docket

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 5 of 13

Entry # 507). Plaintiff Jaffri's Notice of Dismissal against these Defendants was filed on June 15,2006.
7. On June 5, 2006 I also indicated Mr. laffri's intention to seek Voluntary Dismissal of his claims against those defendants who have filed answers in the case. Toward that end, I asked all defense counsel if they would stipulate to dismissal of Plaintiff laffri's case. I have received responses from most but not all defense counsel, indicating generally that they would stipulate to dismissal, but on terms varying somewhat from counsel to counsel.
8. Mr. laffri has never previously dismissed any action based upon or including these claims against any of these Defendants or any other individuals. He brings this motion in good faith, without intending to cause Defendants any harm or prejudice.

Dated: June 15,2006 New York, New York

Respectfully Submitted,
Rachel Meeropol RM 3878 Attorney for Plaintiffs Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6432

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 6 of 13

Rachel Meeropol (RM 3878) Matthew Strugar (MS 2053) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7'h Floor New York, New York 10012 (212) 614-6432

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x TURKMEN, et aI.,

02 CV 2307 (JG) (SMG)

Plaintiffs, -v-

Memorandum in Support of Motion For Voluntary Dismissal

ASHCROFT, et al.

Defendants.

x

Plaintiff SYED AMJAD ALI JAFFRI moves under Rule 41 (a)(2) of the Federal Rules of Civil Procedure for an order dismissing of his claims against Defendants STEVEN BARRERE, WILLIAM BECK, LINDSAY BLEDSOE, SIDNEY CHASE, RAYMOND COTTON, JOSEPH CUCIT!, JAMES CUFFEE, MICHAEL DEFRANCISCO, HOWARD GUSSAK, DENNIS HASTY, KEVIN LOPEZ, SALVATORE LOPRESTI, RAYMOND MICKENS, MICHAEL MCCABE, MARCIAL MUNDO, JOHN OSTEEN, STUART PRAY, BRIAN RODRIGUEZ, SCOTT ROSEBERRY, CLEMMET SHACKS, JAMES SHERMAN, ELIZABETH TORRES, CHRISTOPHER WITSCHEL and MICHAEL ZENK without prejudice to his right to relief as a member of the class alleged in the complaint.
A motion for voluntary dismissal under Rule 41(a)(2) is within the discretion of the District Court; but generally will be allowed unless the Defendant will suffer prejudice as a result. Hinfin Realty Corp. v. The Pittston Company, 206 F.R.D. 350, 355

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 7 of 13
(E.D.N.Y. 2002). In considering prejudice to the Defendant, the Court considers several factors, including: (1) the plaintiff's diligence in bringing the motion; (2) any "undue vexatiousness" on the plaintiff's pmt; (3) the extent to which the suit has progressed, including the defendant's efforts and expense in preparation for trial; (4) the duplicative expense of relitigation; and (5) the adequacy of the plaintiff's explanation for a need to dismiss. Hinfin, 206 F.R.D. at 355.
Each of these factors weighs in favor of Plaintiff Jaffri's motion. Mr. Jaffri was diligent in bringing this motion; counsel for Plaintiffs informed opposing counsel of Mr. Jaffri's decision to seek dismissal immediately after learning of the decision, and several weeks before the scheduled deposition. See Meeropol Dec!. at q[ 5 - 6. There is no evidence that Plaintiff Jaffri has acted in an unduly vexatious manner, or sought to harass defendants. Moreover, because Plaintiff Jaffri is only one of eight named Plaintiffs in the case, the remainder of whom continue the action, there is little expense or effort expended by Defendants that will not be of use in defending the case going forward. Furthermore, although this case has been pending for over four years, discovery was only initiated in the last two years. (See Docket Entry # 134.) Depositions of defendants and third party witness have yet to begin, and a trial date is far-off.
Defendants face no burden from the duplicative costs of future litigation, as Mr. Jaffri is barred from filing a second action challenging his detention and treatment over three years ago. Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999) (The statute of limitations for Bivens actions arising in New York is three years). Mr. Jaffri's requestthat dismissal be granted without prejudice to his ability to remain a putative class member - presents no additional burden to Defendants.

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 8 of 13

Finally, Mr. Jaffri's reasons for requesting dismissal arc simple. He filed this complaint to challenge prolonged physical and verbal abuse and arbitrary detention in punitive conditions of confinement. See Third Amended Complaint at 'lI'l164-133; 169180. Mr. Jaffri's detention had a substantial emotional and physical impact upon him, and he continues to suffer as a result. Id. Because of the continuing impact of Mr. Jaffri's treatment, he is unable to devote the energy required to litigate this case or serve as a class representative. Meeropol Dec!. at'llS. Mr. Jaffti's emotional condition should not bar him from recovering, with the rest of the class, on any successful class claims that may result from this litigation.
For the foregoing reasons, Plaintiff Jaffri respectfully requests that the Court grant his motion, and dismiss his claims against Defendants Barrere, Beck, Bledsoe, Chase, Cotton, Cuciti, Cuffee, DeFrancisco, Gussak, Hasty, Lopez, Lopresti, Mickens, McCabe, Mundo, Osteen, Pray, Rodriguez, Roseberry, Shacks, Sherman, Torres, Witschel and Zenk without prejudice to his right to relief as a member of the class alleged in the complaint.

Dated: June 15,2006 New York, New York

Respectfully Submitted,
/s Rachel Meeropol RM 3878 Attorney for Plaintiffs Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6432

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 9 of 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x TURKMEN, et aI.,

02 CV 2307 (JG) (SMG)

Plaintiffs, -v-

[Proposed] Order

ASHCROFT, et al.

Defendants.

X

Upon Consideration of the Motion for Voluntary Dismissal by Plaintiff Jaffri and for good cause shown, it if hereby ORDERED that Plaintiff Jaffri's claims against Defendants STEVEN BARRERE, WILLIAM BECK, LINDSAY BLEDSOE, SIDNEY CHASE, RAYMOND COTTON, JOSEPH CUCITI, JAMES CUFFEE, MICHAEL DEFRANCISCO, HOWARD GUSSAK, DENNIS HASTY, KEVIN LOPEZ, SALVATORE LOPRESTI, RAYMOND MICKENS, MICHAEL MCCABE, MARCIAL MUNDO, JOHN OSTEEN, STUART PRAY, BRIAN RODRIGUEZ, SCOTT ROSEBERRY, CLEMMET SHACKS, JAMES SHERMAN, ELIZABETH TORRES, CHRISTOPHER WITSCHEL and MICHAEL ZENK are dismissed without prejudice to Mr. Jaffri's right to relief as a member of the class alleged in the complaint.

United States District Court Judge

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 10 of 13

Certificate of Service

I, Rachel Meeropol, certify that on June 15, 2006 I caused the foregoing Notice of

Dismissal to be served on the counsel for defendants and pro se defendants listed below.

Counsel for Defendant Dennis Hasty

Via Electronic Mail:

Michael L. Martinez, Esq.

Counsel for Defendant United States

Crowell & Moring LLP

Stephen Handler

1001 Pennsylvania Avenue, NW

U.S. Dept. of Justice

Washington, DC 20004-2595

Civil Division

MMartinez@crowell.com

Ben Franklin Station

P.O. Box 888 Washington, DC 20044 Stephen.Handler@usdoj.gov

Counsel for Defendant Michael Zenk Allan N. Taffet, Esq. Duval & Stachenfeld LLP

300 East 42nd Street

Counsel for Defendant John Ashcroft

New York, NY 10017

Dennis Barghaan and Larry Gregg

ataffet@dsllp.com

Office of the United States Attorney,

E.D. Va.

Counsel for Defendant Steven Barrere

Civil Division

James G. Ryan

2100 Jamieson Avenue

Cullen and Dykman Bleakley Platt LLP

Alexandria, VA 22314

Garden City Center

Dennis.Barghaan@usdoj.gov

100 Quentin Roosevelt Blvd

Larry.Gregg2@usdoj.gov

Garden City, New York 11530-4850

jryan@cullenanddykman.com

Counsel for Defendant Robert

Mueller

Counsel for Defendants Sidney Chase,

Craig Lawrence

Joseph Cuciti, Michael DeFrancisco,

U.S. Attorneys Office, D.D.C.

Richard Diaz, Mario Machado, Brian

Civil Division

Rodriguez and Scott Rosebery,

555 4th StNW

Alan E. Wolin

Washington, DC 20001

Wolin & Wolin

Craig.Lawrence@usdoj.gov

420 Jericho Turnpike Suite 215

Jelicho, New York 11753

Counsel for Defendant James Ziglar

wolinlaw@aol.com

William Alden McDaniel, Jr.

Law Offices of William Alden

Counsel for Defendant Raymond

McDaniel, Jr. McDaniel, Bennett & Griffin

Cotton Nicholas G. Kaizer

118 West Mulberry Street,

Law Offices of Richard Ware Levitt

Baltimore, MD 21201-3606

148 East 78th Street

wam@wamcd.com

New York, New York 10021

nkaizer@richardlevitt.com

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 11 of 13

Counsel for Defendant Howard Gussak Kenneth C. Murphy Laura Nagel Simon & Partners LLP 30 Rockefeller Plaza, 42nd Floor New York NY 10112
kcmurphy@simonlawyers.com
lauranagel @simonlawyers.com
Counsel for Defendant Raymond Mickens Michael Rosenstock Law Offices of E. Michael Rosenstock, PC 55 Maple Avenue, Suite 206 Rockville Centre, NY 11570 emrosenstock@rosenstocklaw.com
Counsel for Defendant Marcial Mundo James F. Matthews Matthews & Matthews 191 New York Ave. Huntington, NY 11743 jmatthewslaw@aol.com
Counsel for Defendant Jon Osteen David A. Koenigsberg Menz Bonner & Komar LLP Two Grand Central Tower 140 East 45th Street, 20th Floor New York, NY 10017 dkoenigsberg@mbklawyers.com
Counsel for Defendant Clement Shacks Barry M. Lasky Lasky and Steinberg, P.C. 595 Stewart Avenue, Suite 410 Garden City, N.Y. blmpc@aol.com

Counsel for Defendant James Sherman Debra Roth Shaw Bransford Veilleux & Roth, PC 1100 Connecticut Avenue NW, Suite 900 Washington, D.C. 20036 droth@shawbransford.com
Counsel for Defendant Elizabeth Torres Linda Cronin Cronin & Byczek, LLP 1981 Marcus Avenue New Hyde Park, NY 11042 !cronin@cblawyers.net
Counsel for Defendant Christopher Witschel John B. Saville Lewis Johs Avallone Aviles & Kaufman LLP 425 Broad Hollow Road Suite 400 Melville, NY 11747 jbsaville@lewisjohs.com
Counsel for Defendant Lindsey Bledsoe Labe M. Richman Labe M. Richman, Attorney at Law 305 Broadway, Suite 105 New York, NY 10007 labe@laberichman.com

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 12 of 13

Counsel for Defendant Stuart Pray Tomas G. Teresky, Esq. 191 New York Avenue Hutingtno, NY 11743 Tgtesg@aol.com
Richard P. Caro, Esq. 111 Groveland Avenue Riverside, IL 60546 rpcjd@ameritech.net
Counsel for Defendant Kevin Lopez Raymond Cash Law Office of Raymond Cash, P.C. 11602 Queens Blvd. Forest Hills, NY 11375 Crcashl@aol.com
Counsel for Defendant .James Cuffee Mehrdad Kohanim, Esq. 595 Stewart Avenue Suite 410 Garden City, NY 11530 mkgcesg@aol.com
Salvatore Lopresti, pro se Sal Lopresti US Customs House 7th Floor 2nd and Chestnut Sts Philadelphia, Pa 19106 salopresti @bop.gov
William Beck, pro se 145 North Laurel Street Hazelton, PA 18201 whbeck@msn.com
Counsel for Intervenor Ehab Elmaghraby Alexander A. Reinert, Esq. Koob & Magoolaghan 19 Fulton Street Suite 408 New York, NY 10038 aar@kmlaw-ny.com

Haeyoung Yoon Community Development Project The Urban Justice Center 666 Broadway, 10th Floor New York, NY 10012 hyoon@urbanjustice.org
Counsel for Intervenor Sivan Kurzberg Robert Tolchin, Esq. Law Office of Robelt Tolchin 150 William Street, 19th Floor New York, NY 10038 rjt@tolchinlaw.com
Counsel for Defendants in Elmaghraby Brain D. Miller Assistant United States Attorney Eastern District of Virginia Civil Division 2100 Jamieson Ave. Alexandria, VA 22314 Brian.Miller@usdoj.gov
Joseph Kazmierczuk Kazmierczuk & McGrath 11102 Jamaica Avenue, Suite 2C Richmond Hill, NY 11418 Icmgkaz@aol.com
Mark E. Nagle Troutman Sanders LLP 401 9th Street, N.W. Suite 1000 Washington, D.C. 20004 (202) 274-2972 mark.nagle@troutmansanders.com
Cary M. Feldman Feldman Tucket Leifer Fidell LLP 2001 L Street, N.W., Second Floor Washington, D.C. 20036

Case 1:02-cv-02307-JG-SMG Document 515 Filed 07/07/2006 Page 13 of 13
caryf@feldesmantucket.com
Linda Mmino Flemming Zulack & Williamson LLP One Liberty Plaza New York, NY 10001 lmarino@fzw.com
William E. Lawler Vinson and Elkins The Willard Office Building 1445 Pennsylvania Ave, N.W. Washington D.C. 20004 wlawler@velaw.com
Bridgett McMillian Suite 1 149 West 131 Street New York, NY 10027 mseq8@aol.com
Ronald Hart Suite 101 305 Broadway New York, NY 10007 rhart50481@aol.com
Phillip Barnes, pro se 629-B Second Street Bridgewater, NJ 08807-3334
Daniel Ortiz, pro se 745 Clm'ence Ave Bronx NY 10465
Michael McCabe, pro se 4225 Centurian Circle Greenacres, Florida 33463
June 15,2006
/s Rachel Meeropol, Esq.

 </s> Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

2006 WL 1662663 Only the Westlaw citation is currently available.
FOR ONLINE PUBLICATION ONLY United States District Court, E.D. New York.
Ibrahim TURKMEN, Asif-Ur-Rehman Saffi, Syed Amjad Ali Jaffri, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, Akil Sachdeva, and Ashraf Ibrahim on behalf of themselves and all others similarly
situated, Plaintiffs, v.
John ASHCROFT, Attorney General of the United States, Robert Mueller, Director of the Federal Bureau of Investigation, James W. Ziglar, Commissioner of the Immigration and Naturalization Service, Dennis Hasty, former Warden of the Metropolitan Detention Center (MDC), Michael Zenk, MDC Warden, MDC Associate Warden for Custody Sherman; MDC Captain Salvatore Lopresti; MDC Lieutenants Steven Barrere, William Beck, Lindsay Bledsoe, Joseph Cuciti, Howard Gussak, Marcial Mundo, Daniel Ortiz, Stuart Pray, and Elizabeth Torres, and MDC Correctional Officers Phillip Barnes,
Sidney Chase, Michael Defrancisco, Richard Diaz, Kevin Lopez, Mario Machado, Michael McCabe, Raymond Mickens, John Osteen, Brian Rodriguez, Scott Rosebery, and Christopher Wttschel, MDC
Counselors Raymond Cotton, Cuffee, and Clemmet Shacks; John Does 1-20, Metropolitan Detention Center Corrections Officers, and the
United States, Defendants.
No. 02 CV 2307(JG). | June 14, 2006.
Attorneys and Law Firms
Barbara J. Olshansky, Nancy Chang, Rachel Meeropol, Shayana Kadidal, Matthew Strugar, Jennifer Green, New York, NY, for Plaintiffs.
Peter D. Keisler, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, Dimple Gupta, Counsel to Assistant Attorney General, Phyllis J. Pyles, Director, Torts Branch, David J. Kline, Principal Deputy Director, Office of Immigration Litigation, David V. Bernal, Assistant Director, Office of Immigration Litigation, Madeline Henley, Trial Attorney, Torts Branch, Ernesto H. Molina, Jr., Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice Civil Division, Washington, D.C., for the United States.
John F. Wood, Office of the Attorney General, Counselor to the Attorney General, for Defendant John Ashcroft.

R. Craig Lawrence, Assistant United States Attorney, United States Attorney’s Office for the District of Columbia, Civil Division, Washington, D.C., for Defendant Robert Mueller.
William Alden McDaniel, Jr., McDaniel, Bennett & Griffin, Baltimore, MD, for Defendant James Ziglar.
Michael L. Martinez, Shari Ross Lahlou, Crowell & Moring, Washington, D.C., for Defendant Dennis Hasty.
Allan N. Taffet, Duval & Stachenfeld, New York, NY, for Defendant Michael Zenk.
Opinion
MEMORANDUM AND ORDER
JOHN GLEESON, United States District Judge:
*1 This case raises important issues concerning the arrest, detention, and treatment of aliens of Middle Eastern origin in the immediate aftermath of the terrorist attacks of September 11, 2001. The plaintiffs were all illegal aliens at the time. In broad strokes, their claims in this case fall into two categories. First, they contend that the government used their status as illegal aliens as a cover, as an excuse to hold them in jail while it pursued its real interest-determining whether they were terrorists, or could help catch terrorists. Second, the plaintiffs claim the conditions of their confinement flagrantly violated our Constitution.
In general, the latter claims survive this motion to dismiss, largely for the reasons set forth in Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y.).
The claims in the first category, however, are dismissed. After the September 11 attacks, our government used all available law enforcement tools to ferret out the persons responsible for those atrocities and to prevent additional acts of terrorism. We should expect nothing less. One of those tools was the authority to arrest and detain illegal aliens. If the plaintiffs’ allegations are true-and I accept them as true on this motion to dismiss-then the government held them in a jail for months not because that amount of time was necessary to remove them to their countries of citizenship, but because it wanted to have them available here in the United States in the event criminal charges could be brought against them.
But the government was allowed to do that. An ulterior motive in this context does not render illegal conduct that was within the bounds of the government’s authority. An
1

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
officer who wants to search a suspect’s car for a handgun can pull him over (a Fourth Amendment “seizure”) for changing lanes without using his blinker (a traffic violation), even if the officer has no interest in enforcing the laws requiring drivers to signal a lane change. See United States v. Scopo, 19 F.3d 777 (2d Cir.1994). Similarly, the government may use its authority to detain illegal aliens pending deportation even if its real interest is building criminal cases against them.
For the reasons set forth below, the defendants’ motion to dismiss is granted in part and denied in part.
BACKGROUND
A. Overview of the Case The plaintiffs, eight male, non-U.S. citizens, were arrested on immigration violations following the September 11, 2001 attacks. They were held in immigration custody for periods ranging from three to almost seven months after receiving final orders of removal or grants of voluntary departure. All but one are Muslims of Middle Eastern origin (the exception, Akil Sachdeva, is a native of India and is Hindu). They bring this putative class action on behalf of themselves and the class of male non-citizens who are Arab or Muslim, or were perceived by the defendants to be Arab or Muslim, who were (1) similarly arrested by the Immigration and Naturalization Service (“INS”) or the Federal Bureau of Investigation (“FBI”) after September 11, 2001 and charged with immigration violations (“post-September 11 detainees”); (2) detained at the Metropolitan Detention Center (“MDC”) or Passaic County Jail; (3) treated as “of interest” to the government’s terrorism investigation into the September 11 events; and (4) subjected to a blanket no-bond policy pursuant to which they were held without bond until cleared by the FBI of any terrorist connections.
*2 The plaintiffs assert that post-September 11 detainees at the MDC were not served with timely notice of the charges against them; were classified “of high interest” to the government’s terrorist investigation (or as “Witness Security” or “Management Interest Group 155” detainees) without adequate procedures for making such a determination, and as a result were placed in highly restrictive custody; were subjected to a communications blackout and other actions that interfered with their access to counsel and to the courts; and were detained for far longer than necessary after receiving final orders of removal or grants of voluntary departure without being afforded a timely hearing to determine whether continued detention was warranted.
The plaintiffs assert that post-September 11 detainees at

the MDC and Passaic County Jail were subjected to excessively harsh conditions of confinement, including being subjected to physical and verbal abuse, confined in tiny cells for over 23 hours a day, subjected to arbitrary and abusive strip searches, handcuffed and shackled whenever taken out of their cells, deprived of sleep, provided with inadequate medical care, and constructively denied exercise and necessary hygiene items. The plaintiffs allege that MDC defendants deliberately interfered with detainees’ religious practices, and failed to return detainees’ personal items (including personal identification and money) confiscated upon their arrest or when their homes were searched.

The plaintiffs assert that post-September 11 detainees in the Passaic County Jail (the “Passaic Jail” or “Passaic Facility”) were held in overcrowded conditions and housed with potentially dangerous criminal pretrial detainees.

The plaintiffs assert that their race, religion, ethnicity, and national origin played a determinative role in the decisions to detain them, to hold them without bond in punitive conditions of confinement, and to keep them detained beyond the point at which removal or voluntary departure could have been effectuated.

The Third Amended Complaint (the “complaint” or “TAC”), filed on September 13, 2004, alleges 31 claims: 14 claims against all defendants for violations of post-September 11 detainees’ constitutional rights under the First, Fourth, Fifth and Sixth Amendments;1 three claims against all defendants for violations of international law, brought pursuant to the Alien Tort Statute, 28 U.S.C. § 1350; seven claims against MDC defendants for the use of excessive force and for conducting unreasonable strip searches in violation of plaintiffs’ Fourth and Fifth Amendment rights; and seven claims brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. Plaintiffs seek both monetary and equitable relief.2

1

Plaintiffs have withdrawn claims alleging violations of

the self-incrimination clause of the Fifth Amendment

and violations of the right to a speedy trial under the

Sixth Amendment. See Pl. Br. at 5 n. 4.

2

Plaintiffs have withdrawn their requests for declaratory

relief. The equitable relief sought is an injunction

requiring defendants to return confiscated personal

property.

The following individuals are named as defendants: (1) John Ashcroft, the former Attorney General of the United States; Robert Mueller, the Director of the FBI; and James
2

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

W. Ziglar, the former Commissioner of the INS (collectively, “the Washington-based defendants”); (2) Dennis Hasty and Michael Zenk (former wardens of the MDC) (collectively, “the Wardens”); and (3) MDC officials, or former MDC officials, of a rank below warden.3

3

The named MDC defendants are: MDC Associate

Warden for Custody James Sherman; MDC Captain

Salvatore Lopresti; MDC Lieutenants Steven Barrere,

William Beck, Lindsey Bledsoe, Joseph Cuciti, Howard

Gussak, Marcial Mundo, Daniel Ortiz, Stuart Pray, and

Elizabeth Torres; MDC Correctional Officers Phillip

Barnes, Sidney Chase, Michael DeFrancisco, Richard

Diaz, Kevin Lopez, Marion Machado, Michael

McCabe, Raymond Mickens, John Osteen, Brian

Rodriguez, Scott Rosebery, and Christopher Witschel;

and MDC Counselors Raymond Cotton, James Cuffee,

and Clemmet Shacks.

*3 By consolidated motion, the United States and defendants Ashcroft, Mueller, Ziglar, Hasty, and Zenk have moved to dismiss pursuant to Federal Rule of Civil Procedure 12. The United States seeks partial dismissal, and the individual defendants seek to dismiss all claims against them. James Sherman, the MDC Associate Warden for Custody, has separately moved to dismiss all claims brought against him, as has Unit Manager Clemmet Shacks.4

4

Because the motions of Sherman and Shacks do not

present materially different arguments from those of

Wardens Hasty and Zenk, they will not be discussed

separately herein. All claims against Sherman and

Shacks are treated in same manner as the claims against

Hasty and Zenk.

B. Procedural History The original complaint in this case was filed on April 17, 2002. The First Amended Complaint was filed on July 27, 2002. The government moved to dismiss on behalf of all named defendants on August 26, 2002, and oral argument on the motion took place on December 19, 2002. On June 2, 2003, the Office of the Inspector General of the United States Department of Justice released a 198-page report entitled “A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” (the “OIG Report”). In light of the OIG Report, the plaintiffs sought leave by letter dated June 5, 2003 to amend their complaint. Around that time, the government withdrew from representing the named defendants in their individual capacities, and substitute counsel filed notices of appearance.

On June 18, 2003, the plaintiffs filed the Second Amended Complaint, attaching the April 2003 OIG Report. Supplemental briefs in support of and opposing the motions to dismiss were filed. Then, in December 2003, the Office of the Inspector General filed another report-its 47-page “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York” (the “Supplemental OIG Report”). On September 7, 2004, plaintiffs requested leave to file a Third Amended Complaint in order to, among other things, (1) add an additional named plaintiff (Ashraf Ibrahim); (2) identify defendants previously listed as John Doe or John Roe and detail their alleged conduct; (3) add additional defendants; (4) amend various claims based on information contained in the Supplemental OIG report; and (5) assert several new claims, including a Bivens claims based upon unreasonable strip searches and claims under the Federal Tort Claims Act. I granted leave, and the Third Amended Complaint was filed on September 14, 2004, after which followed yet another round of briefing on the motions to dismiss.
At a hearing on October 21, 2004, I ordered that discovery could begin on claims involving the conditions of confinement and the use of excessive force. The Wardens moved to dismiss these claims as against them, arguing that they were entitled to qualified immunity. The motion was denied by order dated December 3, 2004, and a motion for reconsideration and vacatur of the December 3, 2004 order was denied on January 14, 2005. Familiarity with the December 3, 2004 order is assumed.
C. The Named Plaintiffs *4 The Third Amended Complaint, by itself and by incorporating the two OIG reports annexed thereto, alleges the following facts. Many of the allegations are in dispute, but of course, on a motion to dismiss pursuant to either Fed.R.Civ.P. 12(b)(1) or (6), the court must assume that all factual allegations in the complaint are true. See Shipping Fin. Serv. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (Rule 12(b)(1)); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995) (Rule 12(b)(6)).
1. The MDC Plaintiffs
a. Shakir Baloch Baloch is a Muslim and a native of Pakistan. He holds a medical degree from Bolan Medical College in Quetta, Pakistan. He immigrated to Canada in 1989 and became a Canadian citizen in 1994. Both his wife and his daughter reside in Canada. Several times over the past decade, Baloch has entered the United States in order to find work.
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
He most recently entered the country in April 2001.
On September 19, 2001, FBI, INS, Department of Labor, and NYPD officers who were conducting an investigation of Baloch’s apartment-mate went to Baloch’s apartment. There they interrogated Baloch for approximately four hours about the terrorist attacks on September 11, 2001. At no point was he advised of his right to counsel or given Miranda warnings. Baloch denied any involvement with terrorism, but disclosed that he had previously been removed from the United States and had used the alias Faisal Kurd in order to obtain false identification documents. FBI and INS agents searched his home and seized several items, including his laptop computer. Baloch was arrested and taken in handcuffs to an INS facility on Varick Street in Manhattan, where all of his personal belongings, including identification and money, were confiscated. Baloch was held for two nights at the Varick Street facility.
On September 21, 2001, Baloch was “processed for removal.” He was given a “Notice of Rights” and “Request for Disposition” form, which he refused to sign. TAC ¶ 204.
That night, he was taken to the MDC. Five MDC guards, including Lt. Barrere and correctional officers (“COs”) McCabe, Lopez, and Osteen, escorted Baloch to an empty cell. Baloch alleges that the five guards, working as a team, picked him up from under his arms and threw him from corner to corner in the cell, hitting and kicking him in the back as he fell to the ground. Some of the officers cursed at Baloch, calling him a “fucking Muslim terrorist,” and saying things like: “You did this to us. We’re going to kill you,” and “You know why you are in here. The government thinks that you are a terrorist.” TAC ¶ 205. Baloch was designated “as a possible terrorist” and placed in the ADMAX SHU.
On September 22, 2001, the INS reinstated a prior deportation order. Because of this prior order, Baloch was not provided with a hearing.
On September 28, 2001, Baloch was interviewed by FBI agent Noreen Gleason and INS agent Kevin Ryan about his immigration status, work history, and connections to terrorism. On October 11, 2001, he was again interviewed by these same agents. On October 14, 2001, Baloch was interviewed by agents from the FBI, INS, and NYPD. During this interview, Baloch signed a prepared statement that he purchased false identification documents and passports. On October 29, 2001, Baloch was interviewed by two FBI agents and an NYPD detective, who further questioned him about his use of false documents. During one of these interrogations, Baloch was told things like, “If you’re not cooperative, we’ll put you in jail for 10 years or deport you back to Pakistan instead of Canada, where they’ll put you in jail longer than 10 years.” TAC ¶

209.
*5 Shortly after arriving at the MDC, Baloch requested to speak with an attorney. He continued to make such requests, but it was not until November 7, 2001, about six weeks after his arrival at the MDC, that he was allowed to place a call to the Legal Aid Society. Baloch first met with an attorney on November 19, 2001. This meeting, like all of Baloch’s subsequent meetings with his attorneys, was recorded, including both video and audio. Baloch was aware of the camera, and was very reluctant to speak candidly because he was being recorded.
When officials from the Canadian consulate inquired about Baloch’s whereabouts, MDC officials denied that Baloch was being detained there. He first met with a consular official on December 13, 2001.
On December 21, 2001, after approximately three months of detention, Baloch filed a habeas corpus petition in the United Stated District Court for the Southern District of New York. On January 3, 2002, he was indicted for illegal re-entry into the United States. On February 7, 2002, Baloch was transferred from the ADMAX SHU to MDC’s general population unit. On April 2, 2002, he pleaded guilty and was sentenced to time served. Shortly thereafter, he was transferred to the Passaic Jail.
Baloch was subjected to physical and verbal abuse while in the ADMAX SHU. He alleges that MDC defendants would regularly drag him by his waist chain, causing his ankle shackles to dig in; shove him in the back while his chin was against the wall and slam him into walls while he was being transferred to and from his cell; and twist his hands, thumbs, and fingers, step on the chain connecting his ankle shackles, causing the shackles to tighten painfully, and lift his arms or elbows while his wrists were cuffed. Baloch further alleges that some MDC lieutenants participated in physically abusing him, while others witnessed the treatment but did nothing to stop it.
Baloch was subjected to constant verbal harassment by officers in the ADMAX SHU, who would regularly refer to him as a “fucking Muslim” and a “terrorist.” In particular, Baloch alleges that CO Wilson regularly spoke to him about getting revenge for terrorist attacks; CO Lopez regularly gave Baloch the finger and cursed him; and Lieutenant Barrere told him that “Your lawyers can’t help you out. You’ll stay here for another 20 years without seeing a judge.” At one point, when a guard had difficulty unlocking Baloch’s handcuffs, he brought over a large pair of shears and threatened to cut Baloch’s hands off to unlock the cuffs.
On April 16, 2002,5 more than six months after Baloch’s prior deportation order was reinstated, the INS took Baloch to Newark Airport and put him on a plane bound for Toronto without any personal identification or money.
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

None of the items confiscated from Baloch was returned to him. Since his deportation, Baloch has requested the return of these items, but that request has been denied.

5

The Third Amended Complaint states that Baloch was

deported on April 2, 2002, but it appears that the

correct date is April 16, 2002 (the date given in the

Second Amended Complaint).

Baloch experiences both physical and psychological effects of his detention in the United States. He is being treated for severe depression, and he has tested positive for tuberculosis. Among the items confiscated from him were social insurance and health cards. Without them, he has had trouble obtaining medical treatment in Canada. The effects of his detention have put a strain on his marriage, causing his recent separation from his wife. Because of Baloch’s depression, the Canadian Medical Board found him unfit to practice medicine for a time.

b. Yasser Ebrahim and Hany Ibrahim *6 Yasser and Hany,6 who are brothers, are Muslim and natives of Egypt. Hany entered the United States on a tourist visa in 1998; Yasser re-entered the United States on a tourist visa in January 2001. Yasser had previously lived in the United States, arriving on a tourist visa on four different occasions. On one such visit in 1996, he married a U.S. citizen, with whom he lived in Queens, New York until they separated in 1998. Shortly thereafter, he returned to Egypt and did not visit the United States again until January 2001.

6

Though they are brothers, Yasser and Hany spell their

surnames differently in English.

In 2001, the brothers lived with Egyptian and Moroccan friends in Brooklyn. Yasser began a website design business, and Hany worked occasionally at a delicatessen.
On September 30, 2001, twelve men, identifying themselves as FBI and INS agents and NYPD officers, visited the apartment where Yasser and Hany were staying and interrogated the two brothers and their friends about the September 11 attacks. Yasser, Hany, and their friends were each questioned separately about their possible terrorist activity and their immigration status. They each denied involvement in terrorist activity.
Following the interrogations, the FBI and INS agents told Yasser, Hany, and one Egyptian roommate that “we have to take you with us.” TAC ¶ 183. The three were arrested and handcuffed. Yasser’s and Hany’s requests to call an attorney were denied, and the agents searched their

apartment, seizing all of Yasser’s books, including some religious texts.
Yasser and Hany were taken to the INS facility on Varick Street, where they were held for approximately 24 hours. All their personal belongings, including personal identification and money ($27 belonging to Hany, and $250 belonging to Yasser), were confiscated. Throughout the 24-hour period, they were not permitted to use the bathroom. At night, they were forced to sleep on the floor.
On the following day, October 1, 2001, Yasser and Hany were transported by van in handcuffs, chains, and shackles to the MDC. On arrival, they were pulled from the van by several MDC guards. The guards slammed Hany face-first into a wall that had an American-flag t-shirt taped to it. Hany began to cry and was told to “shut up.” He was called a “motherfucker” and told to look at the flag. Yasser was also slammed face-first into the wall, which caused him pain so severe that he thought his nose was broken.
Once inside the MDC’s Receiving and Discharge area (“R & D area”), the brothers were fingerprinted, strip searched, and given orange jumpsuits to wear. Escorted by Lieutenant Barrere and COs Diaz and Chase to the ADMAX SHU, the brothers were forcefully pushed into walls and doors along the way. While escorting Hany, the officers twisted his wrists and tightened the handcuffs until his wrists bled. The officers repeatedly stepped on his leg chains while ordering him to walk, causing him to fall, and leaving his ankles bruised and bloodied. Yasser underwent similar abuse. During this trip to the ADMAX SHU, the brothers were called “fucking Muslims” and “terrorists.” Hany attempted to explain that he and his brother were being detained only on immigration violations, but one MDC CO said, “If you open your mouth, I will crush you under the elevator, just like at the World Trade Center.” TAC ¶ 195.
*7 The abuse of Yasser and Hany upon arrival at the MDC caused serious injury to their arms and noses, both of which remained black and swollen for several days. The injuries to their noses made breathing difficult and painful. Yasser and Hany received a physical examination on October 2, 2001, the day after their arrival. Nina Lorenzo, the physician assistant who performed the exams, did not ask about or treat their obvious injuries. The brothers were placed in separate cells and were not allowed to see or speak to one another for 35 days.
On October 17, Hany and Yasser were served with Notices to Appear. On November 5, 2001, they were moved into the same cell. On the next day, November 6, 2001, they were brought in handcuffs, chains, and shackles, to Immigration Judge Alan Vomacka. On the way to the hearing, CO Scott Rosebery whispered to Yasser, “The camera is your best friend. If not for the
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
camera, I would have smashed your faces, you mother fuckers.” TAC ¶ 186. Yasser attempted to tell the immigration judge what Rosebery had said to him but the judge interrupted him, stating, “I don’t care. This is not my job.” Id .
Yasser and Hany were heard together in a closed immigration hearing. Marianne Yang, a Legal Aid attorney, represented both men and requested that they be granted voluntary departure and bond. “The Immigration Judge, however, denied the request, after [an FBI or INS agent who was present but did not enter an appearance] handed him a note off the record, stating that he could not grant bond until he received ‘clearance.” ’ TAC ¶ 187. The hearing was adjourned until November 20, 2001, when the judge denied the request for bond on the ground that Yasser and Hany were “disappearance risks.” Id. Yasser and Hany accepted final deportation orders, having been informed that they would be removed within four to five days. No appeals were taken from these orders.
FBI memos dated December 7, 2001 state that clearance checks on Yasser and Hany were “negative,” and “note with respect to [Yasser] that links to terrorist groups appear negative.” TAC ¶ 190.
On January 17, 2002, Hany was transferred to MDC’s general population unit. The INS booked a flight to deport Hany on February 1, 2002 and issued an order to escort him to JFK, but this order was not carried out. Yasser remained in the ADMAX SHU for the duration of his detention.
Yasser and Hany were regularly subjected to physical abuse while in the ADMAX SHU, particularly when being transported between their cells and other locations. They allege, for example, that MDC defendants slammed them against walls, twisted their arms, made their handcuffs painfully tight, and stepped on and kicked their ankle shackles.
The brothers were also regularly subjected to verbal abuse. On one occasion, when Hany asked for pen and paper, defendant Barrere responded, “Are you going to write to Osama bin Laden?” TAC ¶ 73. When Yasser raised the issue of human rights to defendant Shacks, he allegedly responded: “Forget about human rights. Three thousand people died in the World Trade Center. You have no rights.” TAC ¶ 198.
*8 Hany was released and deported on May 29, 2002, six months and nine days after the immigration judge had ordered him removed. Yasser was released and deported on June 6, 2002, six months and 17 days after he had been ordered removed. When the men were deported, they were put on a plane to Cairo without any money or any of the personal belongings confiscated from them when they

were arrested.
Upon their respective arrivals in Cairo, Yasser and Hany were “summoned to Egyptian State Security Investigations, where each was detained and extensively interrogated for hours on his detention in the United States.” TAC ¶ 200.
Yasser’s and Hany’s detention in the United States continues to plague the two men both psychologically and physically. Hany in particular has struggled, suffering a “nervous breakdown” after returning to Egypt. It was not until March 2003 that either brother had recuperated sufficiently to be able to work.
c. Ashraf Ali Ibrahim Ashraf Ibrahim, a citizen of Egypt, entered the United States on a six-month visa on January 23, 1992 and remained in the United States for the next ten years. In late August 2001, Ashraf started a bottled-water distribution business in Philadelphia.
On September 23, 2001, FBI and INS agents came to Ashraf’s home and asked him to sign a document consenting to a search of the home, which Ashraf signed. The agents interrogated Ashraf for about two hours regarding his whereabouts on September 11, 2001 and whether he was involved in the attacks. Ashraf stated that he had no involvement with terrorism. Ashraf requested to make a phone call but the request was denied. The agents confiscated “all of the possessions” in his home, including money. TAC ¶ 224.
Later that morning, Ashraf was taken to the Varick Street facility where he was again interrogated for approximately seven hours. Ashraf made repeated requests to make a phone call but was not permitted to do so. Following this interrogation, Ashraf was handcuffed, put in waist and ankle chains, and driven by van to the MDC.
Upon arrival at the MDC, an officer got into the van, told Ashraf to “open [his] fucking mouth,” and pointed a flashlight into his mouth. Two MDC defendants then dragged Ashraf by his arms to the R & D area. The officers shoved Ashraf against the wall, stunning him and causing him great pain. The officers forcefully pressed Ashraf against the wall for several minutes. Lieutenant Gussak, who was in charge of the officers, observed the abuse but did nothing to stop it. Gussak told Ashraf that “if you make any move, you will hit the floor and you will hit it hard.” TAC ¶ 226.
While being taken for fingerprinting, the officers held Ashraf’s arms while forcing him to run at an unmanageable pace for a person in ankle restraints. In
6

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
addition, officers standing behind him would step on his ankle chains, causing him to fall forwards. The pain and bruising from this treatment persisted for about three weeks; the injuries were never treated.
*9 After Ashraf was fingerprinted, Lt. Gussak conducted a strip search, including ordering Ashraf to move his fingers through his pubic hair and lift his genitals, and then bend over and spread his buttocks for a visual examination. Ashraf was then taken by elevator to the ADMAX SHU on the ninth floor. In the elevator, officers slammed Ashraf into the wall. When he reached the ADMAX SHU, he was received by a new team of guards and again strip searched, even though he had been under continuous supervision and in hand and leg restraints since the first strip search took place.
For the first 25 days Ashraf was in the ADMAX SHU, he was subjected to a communications blackout, despite his repeated requests for permission to make phone calls and his scheduled hearings before an immigration judge. He continued to be prohibited from making legal calls even though at a hearing before Immigration Judge Vomacka, on October 3, 2001, the judge told MDC officers that Ashraf should be permitted to contact a lawyer. Ashraf was allowed to make calls after October 17, 2001, but he alleges that defendant Cotton would limit his ability to call his attorney by, among other means, purposely dialing wrong numbers, telling Ashraf the number he requested was busy and that he would have to try again “next week” or “next month,” and generally making legal calls available only between 8:00 and 9:00 a.m., before most attorneys began work.
For the first five months of Ashraf’s detention, he was never allowed to leave his cell without being strip searched, handcuffed, chained, and shackled. Ashraf alleges that defendant Beck routinely over-tightened his restraints. During transportation to and from his cell, Ashraf was pushed or slammed against the wall for “pat-down” searches. Whenever defendant Chase conducted pat-down searches, he would grab Ashraf’s genitals and squeeze them until it caused Ashraf acute pain.
Especially during the first five months, Ashraf was physically and verbally harassed by MDC defendants. Defendant McCabe was frequently violent towards Ashraf, pushing him into walls while escorting him to or from his cell. Defendants Beck and Barrere observed officers under their supervision “hurting, insulting, or harassing” Ashraf, but did nothing to stop the abuse. TAC ¶ 242. Further, Beck inappropriately insulted Ashraf on occasion, and Barrere “made a point of intimidating and scaring Ashraf.” Id.
Ashraf alleges several specific incidents of physical abuse. On September 24, 2004, Officers Diaz and Machado

slammed Ashraf’s back into the wall and held him there while his photograph was taken. On October 3, 2001, on the way to immigration court, Ashraf was slammed into the wall and subjected to a pat-down search. In the elevator, Officer Rosebery told him to “spread your fucking legs,” and then stepped on his ankle chain while two other officers held him up, causing him great pain. Ashraf informed Immigration Judge Vomacka that he had been treated violently in the elevator. On the way back from court, Rosebery again told him to spread his legs and again stepped on his ankle chain. Similar abuse took place while Ashraf was being taken to and from immigration hearings on October 11, 16, and 25, resulting in badly bruised ankles. On October 11, 2001, after Ashraf was strip searched and shackled in preparation for an immigration hearing, defendant Chase conducted a pat down search, intentionally squeezing Ashraf’s genitals. Finally, beginning in mid-October 2001, defendant Barnes began a practice of twisting Ashraf’s fingers while Ashraf was being held face to the wall. Barnes continued to twist Ashraf’s fingers at every opportunity.
*10 On October 11, 2001, Ashraf was brought for a bond hearing in immigration court. No immigration judge was present, and therefore no bond determination was made. On October 16, 2001, Ashraf had a hearing in immigration court.7

7

The complaint does not specify what occurred at this

hearing. Ashraf had no attorney at the time. He had yet

to be permitted to make a “legal” phone call. TAC ¶

243.

On October 22, 2001, Ashraf was interrogated by INS and FBI agents for about two hours. These agents told Ashraf that “if he could not provide any information about September 11 he would stay in jail forever.” TAC ¶ 245. An INS agent also allegedly told Ashraf that “his chance to get out of this jail is very slim.” Id.
On October 25, 2001, Al-Shawi, an attorney retained for Ashraf by a friend, came to represent him at an immigration hearing scheduled for that day. The officers at the front desk of the MDC told Al-Shawi that there was no one by the name of “Ashraf Ibrahim” at the MDC.
On November 6, 2001, a hearing was held with Al-Shawi present. Immigration Judge Vomacka denied Ashraf’s request for bond in order to collect his belongings (which had been acquired over ten years of living in New York), and issued a final order of removal. The judge told Ashraf that he would be deported shortly because there was a limit to the time he could be detained after the issuance of a final deportation order.
On March 28, 2002, four months and 22 days after he was
7

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
ordered removed, Ashraf was escorted in handcuffs to Kennedy Airport and deported to Egypt. Upon arrival, he was taken to the Egyptian State Security Investigation Office, where he was interrogated and detained overnight. The next morning, he was taken to a Cairo jail and detained there for another three days before he was released.
As a result of his detention, Ashraf experiences severe depression and anxiety. He saw a psychiatrist after returning to Egypt.
d. Syed Amjad Ali Jaffri Jaffri, a Muslim and native of Pakistan, immigrated to Canada. His wife and four children live in Lahore, Pakistan. Since May 1997, Jaffri has periodically visited family and friends in the United States, entering this country from either Canada or Pakistan on tourist visas. In September 2001, Jaffri was living and working illegally in the Bronx.
On September 27, 2001, approximately ten INS and FBI agents, accompanied by a United States Department of Labor official and several police officers, went to the apartment where Jaffri was staying. They searched Jaffri’s room and found several stun guns belonging to other occupants of the apartment. Jaffri was arrested and charged with criminal possession of a weapon. The charges were dismissed two days later because Jaffri did not own the stun guns.
On September 28, 2001, Jaffri was taken from the apartment to an INS facility in Manhattan, where FBI and INS agents interrogated him about his possible involvement in terrorist activity. At no point during this interrogation was Jaffri given Miranda warnings. An FBI agent asked Jaffri to sign a form consenting to the search of his room, which had already taken place, and Jaffri refused. The agent allegedly responded, “Now you will learn the hard way.” TAC ¶ 171. Jaffri requested that the Pakistani Consulate be notified, and requested a hearing before an immigration judge.
*11 On September 29, 2001, Jaffri was taken to the MDC, where he was strip searched, fingerprinted, and given an orange jumpsuit. All his personal possessions were confiscated and he was placed in a cold, solitary, windowless cell in the ADMAX SHU. Jaffri remained confined in that cell nearly every day for the next six months. Although there were other post-September 11 detainees held in adjoining cells, Jaffri was forbidden to talk to them and vice-versa. The MDC defendants threatened to cut off visits from Jaffri’s attorney if he broke the rule prohibiting communication with detainees in adjoining cells.

For the first two months of his detention, Jaffri was denied a bar of soap. He received only two squares of toilet paper per day and his meals were served without eating utensils. For months he was denied all reading material.
Jaffri was subjected to repeated physical and verbal abuse. Specifically, plaintiffs allege that when Jaffri was first brought to the ADMAX SHU, he was told by an MDC defendant, that “whether you [participated in the September 11 attacks] or not, if the FBI arrested you, that’s good enough for me. I’m going to do to you what you did.” TAC ¶ 176. Several MDC defendants then slammed Jaffri’s head into a wall, severely loosening his lower front teeth and causing him extreme pain. Id. As a result of this blow, Jaffri experienced pain in his mouth throughout his detention. He requested to see a dentist six times, but was seen only once in 2001 and once again in late March 2002. The March 2002 visit revealed advanced bone loss, advanced periodontal disease, and the need to have “many teeth” extracted. Id.
Whenever Jaffri was taken out of his cell, he was strip searched and placed in handcuffs, chains, and shackles. He was usually escorted by at least four MDC officers, who abused him en route by, for example, kicking his handcuffs and shackles into his lower body. TAC ¶ 174.
On October 1, 2001, Jaffri was served with a Notice to Appear. Jaffri requested a re-determination of the decision to place him in custody, and signed a request for a merits hearing before an immigration judge.
On December 20, 2001, during a closed immigration hearing held at the MDC, an immigration judge ordered Jaffri’s removal from the United States. No bond hearing was held prior to this hearing. Neither Jaffri nor the INS contested the removal order.
On April 1, 2002, three months and 12 days after the removal order, INS agents escorted Jaffri to LaGuardia Airport and put him on a plane to Canada. Neither his money nor his identification documents were returned to him.
e. Asif-Ur-Rehman Saffi Saffi is a Muslim native of Pakistan and a citizen of France. He currently resides on Reunion Island, in the Indian Ocean east of Madagascar. He had been working for Pakistan International Airlines for 19 years when he came to the United States on July 6, 2001 on a three-month tourist visa. He first entered the country in Los Angeles to visit with friends there, then he flew to New York City, also to visit friends.
*12 Saffi, who holds a Master’s Degree in Political
8

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

Science, is a “Microsoft Certified Professional,” and earned money while in New York doing computer repair and data entry for a small business.
On September 29, 2001, before his visa expired, Saffi flew to Toronto, but immigration officials there refused to allow him to enter the country, so he returned to New York the following day.8 Upon his arrival at LaGuardia Airport on September 30, 2001, he was arrested by FBI and INS agents. Saffi, who is fluent in English, was interrogated by an INS agent and taken to the INS facility on Varick Street.

8

The complaint does not state why Saffi was denied

entry into Canada.

At the Varick Street facility, Saffi was interrogated by two FBI agents for about two hours. The FBI agents accused him of taking part in the September 11 terrorist attacks. They allegedly told him, “You will be rotting in jail if you don’t give us names,” and “Muslims are terrorists and we know you are one of them.” TAC ¶ 34. They took two address books from Saffi and threatened that he would be in serious trouble if any person he associated with was “suspicious.” Id. At the request of an INS official, Saffi signed a written statement that he had been working in the United States without authorization. Saffi requested to contact the French consulate, but that request was never granted, even after he put the request in writing.
On the following day, October 1, 2001, Saffi was moved to the MDC with eight other detainees in two vans. He was transported there with chains around his waist and shackles around his legs. Lieutenant Pray and four or five MDC officers dragged Saffi into the R & D area, slamming his face against several walls along the way. He was strip searched and given an orange jumpsuit to wear. His personal items, including money, were confiscated.
Plaintiffs allege that several MDC defendants led Saffi, still in handcuffs, chains and shackles, to the ADMAX SHU. On the way there, the officers banged his head and slammed him against the walls, kicked him, and verbally abused him. When they arrived at the ADMAX SHU, Saffi was again strip searched and subjected to further physical abuse. MDC officers bent his thumbs back so far he could not use them for ten days, stepped on his bare feet, and pushed him into a wall so hard that he lost consciousness. When Saffi fainted, the officers kicked him in the face and ribs. Lieutenant Beck called Saffi a “ ‘terrorist,’ boasting that [he] could expect continued harsh treatment because of his involvement in the September 11th terrorist attacks.” TAC ¶ 154. Beck vowed to make Saffi’s detention as horrible as possible, and threatened to punish Saffi “if he even so much as

smiled.” Id. Beck also said that Saffi had killed 7,000 people,9 and threatened to beat him if he did not behave.

9

The 7,000 figure represents the number of people

thought to have been killed in the September 11, 2001

attacks at the time Saffi was brought to the MDC. TAC

¶ 154.

Saffi was placed in a ten foot by six foot windowless cell with another post-September 11 detainee. The cell was cold and uncomfortable. Saffi was confined to this cell all day, nearly every day, for the next five months.
*13 Initially, Saffi was denied all reading material. Though he was subsequently given a copy of the Bible, it was not until mid-December 2001 when he was given a copy of the Koran. Saffi was still unable to read for several more days because his eyeglasses had been confiscated upon his arrival. On December 18, 2001, Saffi was brought to an eye doctor and given new glasses.
While in detention, Saffi had difficulty practicing his religion. He was denied Halal food. Once, Saffi asked Lieutenant Torres for Halal food, and she responded that the MDC is a jail, not a hotel, and that Saffi should ask Allah for food.10 For the first month, MDC defendants constantly interrupted him during his morning prayers. They also refused to inform him of the time of day, making it impossible for him to know when to conduct his daily prayers. The MDC defendants also “swore at [Saffi], belittled and insulted his religion, and degraded him. They called him a ‘religious fanatic’ and a ‘terrorist.” ’ TAC ¶ 159.

10

Plaintiffs allege that Liutenant Torres was verbally

abusive to inmates, referring to them as “sons of

bitches, motherfuckers, and troublemakers.” TAC ¶

158.

On October 8, 2001, the District Director of the INS for the New York District issued a removal order for Saffi. On October 14, 2001, two FBI and two INS agents interrogated Saffi on various topics, including his family in France, his work for Pakistan International Airlines, his religious faith and his political views. During this interrogation, Saffi again denied any involvement in terrorist activity. A report by one of the FBI agents who interviewed Saffi “recommended that Saffi be allowed to return to France,” stating that “Saffi’s interview and the subsequent investigation ... revealed nothing to indicate that Saffi had any knowledge of the attack on the World Trade Center, or any other terrorist activity.” TAC ¶ 161.
On October 17, 2001, the removal order “appears to have been served to Saffi.” TAC ¶ 162. Saffi asked an INS
9

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
official whether he needed a lawyer and was told that he did not since the INS would soon put him on a plane back to France. Id.
On November 2, 2001, Kenneth Maxwell, FBI Special Agent in Charge, wrote to Daniel Molerio, INS Assistant Director for Investigations in New York, to inform him that the FBI did not have an investigative interest in Saffi relating to the events of September 11.
On December 18, 2001 an INS agent and a NYPD detective interrogated Saffi at the MDC, again questioning him about his family, religious and political views, and his work for Pakistan International Airlines. Saffi again denied any involvement with terrorists. At the end of this interrogation, the two officers assured Saffi that he would soon be released.
On March 5, 2002, four months and 18 days after the issuance of his removal order, INS agents took Saffi to LaGuardia Airport and put him on an airplane to France without the money or the employment and identification cards that had been confiscated from him.
Pakistan National Airlines has initiated proceedings to terminate Saffi’s employment, allegedly because, as a result of his detention in the United States, he has been deemed a security risk. Saffi suffers both emotional and psychological effects from his detention in the United States. He has great difficulty, for example, sleeping at night because he continues to dwell upon what happened to him at the MDC.
2. The Passaic Plaintiffs
a. Ibrahim Turkmen *14 Turkmen, a Muslim Imam, is a citizen of Turkey. He came to the United States on October 4, 2000, on a six-month tourist visa to visit a friend from Turkey, who lived on Long Island in New York. Shortly after his arrival, Turkmen found work at a service station in Bellport, New York. He worked there until January 2001, when he took a job at another service station in the same town. In April 2001, he left that job and began to work part-time for a local Turkish construction company.
Turkmen spoke virtually no English when he first arrived in the United States. During his stay, he learned only the words necessary for his limited daily interaction with English-speakers. At the time that he was taken into custody, Turkmen understood very little spoken English, and he could not read English at all.
On October 13, 2001, two FBI agents visited Turkmen at the apartment where he was staying with several Turkish friends in West Babylon, New York. They asked him

whether he had any involvement in the September 11 terrorist attacks and whether he had any association with terrorists. They also inquired as to his immigration status. Turkmen had difficulty understanding the questions posed to him by the FBI, and no interpreter was provided. Turkmen denied any involvement with terrorists or terrorist activity.
The FBI agents accused Turkmen of being an associate of Osama bin Laden, placed him under arrest, confiscated his personal items, including $52 in U.S. currency, his passport and identification and credit cards, and searched his home. The INS then took Turkmen to an INS facility in Nassau County. There, he was fingerprinted and interrogated by an INS official. At no point during this or any other subsequent interrogation by either the FBI or INS was he advised of his right to counsel or given Miranda warnings. Because no interpreter was provided, Turkmen struggled to understand the questions posed to him.
On the evening of the day he was arrested, Turkmen was taken to the Varick Street facility, where he was again questioned in English without the aid of an interpreter. Turkmen was instructed to sign an English-language document, which he did, though he did not understand what it said.11

11

Plaintiffs speculate that the documents signed by

Turkmen may have included a waiver of the right under

Article 36 of the Vienna Convention to speak with the

Turkish consulate.

The next morning, October 14, 2001, Turkmen was taken to the Passaic Jail. Shortly after arriving there, Turkmen received a Notice to Appear from the INS, charging him with overstaying his visa and scheduling a hearing at immigration court in Newark, New Jersey on October 31, 2001. Turkmen also received a Notice of Custody Determination, and he requested a re-determination of the custody decision.
On October 29, 2001, two FBI agents visited Turkmen in jail and questioned him on various topics, including his immigration status, his reasons for entering the United States, his work experience and his religious beliefs. Another Turkish detainee translated the questions for Turkmen. As he had done during the previous interrogations, Turkmen denied any involvement with terrorists or terrorist activity.
*15 On October 31, 2001, Turkmen appeared pro se before an immigration judge in Newark, New Jersey. An interpreter was provided during this proceeding but the interpreter apparently “was fluent in neither Turkish nor English.” TAC ¶ 264. Turkmen admitted that he had
10

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

overstayed his tourist visa and accepted a voluntary departure order requiring him to leave the United States by November 30, 2001. The judge assured him that he would be allowed to return to Turkey within a matter of days and, as a result, Turkmen declined to request bond. Id. The INS did not appeal the voluntary departure order.
On November 2, 2001, responding to a request from Turkmen, a friend brought a plane ticket for Turkmen’s return to Turkey to the INS offices in Newark. However, Turkmen was not permitted to return to Turkey until February 25, 2002. Until then, he was detained in the Passaic Jail.12

12

Plaintiffs contend that by “preventing” Turkmen from

complying with a voluntary departure order, an

automatic order of removal with a 10-year ban on

re-entry to the United States was entered. TAC ¶ 265.

While in jail, Turkmen was placed in the general prison population. He was housed under severely overcrowded conditions with individuals charged with or convicted of violent crimes. He was denied the ability to observe the mandatory practices of his religion: he could not obtain the prescribed Halal food and he could not conduct his daily prayers without interruption. Turkmen further alleges that he was “threatened by guards with menacing dogs.” TAC ¶ 268. He was never informed of his right under Article 36 of the Vienna Convention on Consular Relations to contact the Turkish consulate.
Turkmen remained in Passaic Jail for three months and twenty-five days after he received his voluntary departure order. On February 25, 2002, INS agents took Turkmen in handcuffs to the Newark Liberty International Airport and put him on a plane to Istanbul, without the $52 confiscated from him at the time of his arrest. He arrived in Istanbul without any means to pay for the eight-hour bus ride to Konya, where his family resides.
When he arrived in Turkey, Turkmen was met at the airport by a Turkish police officer and escorted to a nearby police station. There, he was interrogated for approximately an hour about his detention in the United States. Turkmen denied any involvement in terrorist activity. He was then permitted to leave for Konya.
Once settled in Konya, sometime in late April 2002, following the filing of this lawsuit, Turkmen was interrogated by Konya’s Security Intelligence Division about his detention in the United States. At the end of the questioning, Turkmen was instructed by the Division’s Superintendent to “be careful.” TAC ¶ 274. After the interrogation, Turkmen’s father was contacted by the Head of the Gendarmerie in a district of Konya and asked for information regarding Turkmen’s current address. The

official explained that he sought the information because human rights organizations were trying to reach Turkmen. Several days later, the same official obtained Turkmen’s personnel file from Turkmen’s former employer.
*16 Turkmen suffers emotionally and psychologically due to his detention in the United States. He has nightmares regularly about his detention.
b. Akil Sachdeva Sachdeva is a native of India and is Hindu. He holds a bachelor of arts degree in commerce from the University of Delhi. Since 1995, he has entered the United States for extended periods of time. In December 1998, Sachdeva immigrated to Canada. In 1998, while working as a travel agent in Canada, Sachdeva married a United States legal permanent resident who owned a gas station on Long Island. For the next several years, Sachdeva lived with his wife in the United States and worked at her gas station. During this period, he applied to the INS for resident status in the United States. In early 2001, however, Sachdeva and his wife divorced. He then briefly returned to Canada until sometime in September or October of 2001, when he returned to finalize his divorce.
Sometime in late November 2001, an FBI agent visited the gas station owned by Sachdeva’s ex-wife in Port Washington, New York, looking for a Muslim employee. Failing to locate the employee, the agent left a note requesting that Sachdeva’s ex-wife contact him. She passed on the request to Sachdeva, who called the agent in early December 2001. The FBI agent asked Sachdeva to come to the agent’s offices for an interview, and Sachdeva complied on December 9, 2001. At the interview, two FBI agents questioned Sachdeva about the September 11 attacks and his religious beliefs. Following the interview, the agents examined Sachdeva’s personal identification and then permitted him to leave.
On December 20, 2001, INS agents arrested Sachdeva at his uncle’s apartment and took him to INS’s offices in Manhattan, where he was interrogated for five hours about the September 11 terrorist attacks. After the interrogation, INS agents confiscated all of Sachdeva’s personal identification and took him to Passaic Jail, where he was confined until he was deported on April 17, 2002.
On December 27, 2001, Sachdeva received a Notice to Appear, charging him with illegal re-entry (he had overstayed a prior voluntary departure order). On December 31, 2001, Sachdeva was taken before an immigration judge in Newark, who ordered Sachdeva deported to Canada or India within 30 days. The INS did not appeal this order.
Plaintiffs allege that the treatment of Sachdeva during his
11

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
detention and the conditions of his confinement were similar to that of Turkmen, who was also detained at the Passaic Jail. Like Turkmen, Sachdeva was in daily contact with individuals charged with or convicted of violent crimes. Only around a quarter of the detainees with whom Sachdeva was confined were immigration detainees. The rest were pre-trial detainees, many with criminal histories. In mid-February 2002, a “well-built” felon punched Sachdeva in the face several times for not handing over a newspaper quickly enough. The assault loosened teeth and caused permanent dental damage.
*17 On four occasions, Sachdeva requested, in writing, that the Canadian consulate be contacted. Each time his request was denied. Sachdeva also made frequent efforts to contact the consulate by telephone. Because the consulate did not accept collect calls, however, guards had to place the calls for Sachdeva, and they would claim that the line was busy or there was no answer. Sachdeva was unable to contact the consulate until mid-March 2002.
On April 17, 2002, three months and seventeen days after he had been ordered deported, Sachdeva was taken by INS agents to Newark Airport and put on a plane to Canada. Despite his requests, the items confiscated from him upon his arrest were not returned to him before he returned to Canada. However, sometime after he arrived, his Canadian identification card was returned to him.
When Sachdeva arrived in Canada, Canadian immigration officials suspended his landed immigrant status and took away his work papers.
D. The Plaintiffs’ Claims
1. Delayed Service of Notices to Appear The plaintiffs allege that the INS consistently delayed issuing and serving its charging document, called a “Notice to Appear” (“NTA”), on post-September 11 detainees far beyond the 48-hour period specified by regulation. By doing so, the INS impaired the ability of detainees to know the charges on which they were being held, obtain legal counsel, and seek release on bond. Yasser Ebrahim and Hany Ibrahim were served with NTAs 17 days after their arrest. Other named plaintiffs also did not receive NTAs in a timely manner: Sachdeva (seven days); Jaffri (four days); and Ashraf Ibrahim (an unreasonable delay).
2. Blanket No Bond Policy The plaintiffs allege that the defendants, among other federal officials, instituted a blanket “no bond” policy for all post-September 11 detainees, regardless of whether an

individual detainee posed a flight risk or danger. INS District Directors were ordered to make an initial determination of “no bond” for all post-September 11 detainees. When detainees requested bond re-determination hearings, INS Trial Attorneys were ordered to seek continuances and to oppose bond even where there was no evidence to support the denial of the bond. See OIG Report at 76, 78.

3. Classification as “of High Interest” and Assignment to the ADMAX SHU Post-September 11 detainees were classified as “of high interest” to the government’s terrorism investigation, but there was no specific criteria or uniform system for making such a classification. The FBI requested that the INS place “of high interest” detainees in the ADMAX SHU, a special housing unit at the MDC created specifically to house post-September 11 detainees in highly restrictive conditions (“Administrative Maximum” refers to the most restrictive type of detention permitted under BOP procedures).13 These restrictive conditions included: enforcing a four-man hold restraint policy; using video cameras to record detainee movement and placing cameras in each cell; prohibiting detainees from moving around the unit; limiting telephone access; and providing for only non-contact visits with attorneys or family members, with a clear partition between the parties.

13

See 28 C.F.R. § 541.22 (“Administrative detention is

the status of confinement of an inmate in a special

housing unit in a cell by self or with other inmates

which serves to remove the inmate from the general

population.”). Prior to September 11, the MDC had a

special housing unit, but it did not have one designated

as Administrative Maximum, which provides more

restrictive confinement than normal SHUs. See April

2003 OIG Report at 118-119.

*18 Once assigned to the ADMAX SHU, the detainees were further classified as “Witness Security” and/or “Management Interest Group 155” detainees, again without uniform criteria for making such determinations.14

14

The BOP initially classified all post-September 11

detainees as “Witness Security” or “WITSEC”

inmates-inmates who are cooperating with a

government investigation. Because the cooperation of a

typical Witness Security inmate places him in danger,

information about such inmates is carefully guarded. A

Memorandum dated October 1, 2001 directed that

post-September 11 detainees be designated under a new

classification called “Management Interest Group 155,”

in part to address the lack of information the BOP was

providing attorneys and family members. However,

12

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
because the memorandum also directed that post-September 11 detainees continue to be confined in the most restrictive conditions possible until cleared by the FBI, the BOP continued to use WITSEC as the primary designation for the detainees and added Management Interest Group 155 only as a secondary designation, and the information restrictions associated with the WITSEC designation continued to apply. See April 2003 OIG Report at 116-117.

Post-September 11 detainees housed in the ADMAX SHU were not provided with the periodic individual reviews required by BOP regulations.15 Instead, MDC officials were told by BOP headquarters that until the FBI had cleared a particular detainee, that detainee’s report was to be automatically annotated with the phrase “continued high security.”

15

See 28 C.F.R. § 541.22(c) (requiring formal reviews

and hearings for each inmate in administrative

detention to determine whether their continued

administrative detention is warranted).

4. Conditions of Confinement at the MDC
a. Physical Abuse Plaintiffs allege that post-September 11 detainees at the MDC were subjected to frequent physical abuse by many of the MDC defendants-all of the correctional officer defendants and several of their supervisors-and that other supervisory defendants encouraged or were indifferent to the abuse. Physical abuse was more frequent before the MDC began videotaping detainee escorts in early October 2001, but it continued after that date.
In the reports on its investigations, the OIG detailed allegations of abuse by MDC officers, which it divided into six categories: (1) slamming detainees against walls; (2) bending or twisting arms, hands, wrists, and fingers; (3) lifting restrained detainees off the ground by their arms, and pulling detainees’ arms and handcuffs; (4) stepping on detainees’ leg restraint chains; (5) using restraints improperly (for example, making restraints too tight, or leaving detainees in restraints while in their cells); and (6) handling detainees in an otherwise rough or inappropriate manner .16 OIG Report at 6. The OIG’s investigation substantiated many allegations of abuse at the MDC, some of which were recorded by videotape (including videotape showing MDC officers slamming a detainee “into two walls while being escorted from the recreation deck to a segregation cell,” and pressing detainees heads against the wall). Id. at 8-28.

16

The OIG concluded that “some MDC staff members

slammed and bounced detainees into the walls at the

MDC and inappropriately pressed detainees’ heads

against the walls. We also found that some officers

inappropriately twisted and bent detainees’ arms,

hands, wrists, and fingers, and caused them

unnecessary physical pain; inappropriately carried or

lifted detainees; and raised or pulled detainees’ arms in

painful ways. In addition, we believe some officers

improperly used handcuffs, occasionally stepped on

compliant detainees’ leg restraint chains, and were

needlessly forceful and rough with the detainees-all

conduct that violates BOP Policy.” Supplemental OIG

Report at 28.

b. Verbal Abuse Many of the MDC defendants subjected post-September 11 detainees at the MDC to frequent verbal abuse, including referring to them as “terrorists” and other offensive names, threatening them with violence, cursing at them, insulting their religion, and making humiliating sexual comments during strip searches. The OIG’s investigation substantiated many allegations of verbal abuse. Id. at 28-30. All of the MDC correctional officer and supervisory defendants engaged in verbal abuse, and the supervisory defendants encouraged or were deliberately indifferent when their subordinates verbally abused the detainees.
c. Strip Searches Post-September 11 detainees at the MDC were strip searched every time they were removed from or returned to their cells, including before and after non-contact attorney visits (to and from which they were escorted in shackles and under continuous four-man guard), when receiving medical care, using the recreation area, attending a court hearing, or being transferred to another cell. Post-September 11 detainees were strip searched upon arrival to the MDC at the R & D area and again after they had been escorted, shackled and under continuous guard, to the ninth floor ADMAX SHU. Supp. OIG Rep. at 3. “Some of the same officers who were present for a detainee’s strip search in R & D were present for the detainee’s strip search on the ADMAX SHU.” Id. at 34. The OIG found that it “[did] not appear that the MDC issued written policies regarding when detainees were to be strip searched.” Id. The OIG further found that “even if such searches were consistent with policy, they were applied inconsistently to the detainees and appeared to be unnecessary.” Id.
*19 The plaintiffs allege that the strip searches were both unnecessary and conducted to punish and humiliate the detainees. The OIG Report substantiates allegations that
13

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
female officers were present during the searches, that strip searches were videotaped in their entirety (which runs counter to BOP policy to assure as much privacy as practicable to a detainee, see BOP P.S. 5521.05), that MDC officers laughed while the searches were being conducted, and that “on occasion staff members inappropriately used strip searches to intimidate and punish detainees.” Supp. OIG Report at 33-35. For example, the OIG states that
in one videotape four officers escorted one detainee into a recreation cell and ordered him to strip while they berated him for talking too much with other detainees and for encouraging them to go on a hunger strike. We could see no correctional purpose or justification for strip searching this detainee, who had just been taken from his cell, pat searched, and then escorted into the recreation cell by four officers.
Id. at 34-35. The plaintiffs allege that MDC defendants routinely made inappropriate sexual comments and laughed at the plaintiffs’ anatomy.

d. Sleep Deprivation The plaintiffs allege that the MDC defendants sought to deprive post-September 11 detainees at the MDC of sleep by keeping lights on in the cells 24 hours a day (until February 2002), banging on their cell doors, and engaging in other conduct designed to keep them from sleeping. The OIG reported allegations by detainees that MDC officers “loudly banged on their cell doors in an attempt to wake them up, interrupt their prayers, or generally harass them.” Supp. OIG Report at 35. Detainees alleged that officers “went beyond what was required for the count17 by kicking the door hard with their boots, knocking on the door at night much more frequently than required, and making negative comments when knocking on the door.” Id.

17

A “count” is conducted at midnight, 3:00 a.m. and 5:00

a.m., and officers are required to see detainees’ skin,

see BOP P.S. 5500.09.

For example, one detainee claimed that officers kicked the doors non-stop in order to keep the detainees from sleeping. He stated for the first two or three weeks he was at the MDC, one of the officers walked by about every 15 minutes throughout the night, kicked the

doors to wake up the detainees, and yelled things such as, “Motherfuckers,” “Assholes,” and “Welcome to America.” Id. at 36. One detainee’s attorney reported that officers would constantly wake his client by watching the in-cell camera, and then kicking the cell door as soon as they thought he had fallen asleep. Id.
e. Constructive Denial of Exercise The plaintiffs allege that post-September 11 detainees at the MDC were given the “opportunity” to go to the recreation area several times a week, but were deprived of adequate clothing and thus were constructively denied exercise during the fall and winter. The ADMAX SHU recreation area was exposed to the elements, and could be freezing cold. MDC plaintiffs were periodically offered transport to the area, but it was often at 5 or 6 in the morning, and the detainees were not offered any extra clothing besides their cotton prison garb. In addition, detainees who accepted such offers were often physically abused along the way, and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment.
f. Denial of Hygiene Items and Adequate Food *20 For the first several months of their detention, MDC plaintiffs were not allowed to keep personal hygiene items in their cells, including toilet paper, towels, soap, toothbrushes, or cups to drink water, making it difficult to maintain proper health and hygiene. MDC plaintiffs were also provided with meals that were meager and barely edible.
g. Inadequate Medical Attention MDC plaintiffs allege they were not provided with adequate medical care. For example, Yasser Ebrahim and Hany Ibrahim were physically abused (including being slammed face-first into a wall) upon their arrival at the MDC. The following day, Nina Lorenzo, a physician assistant, conducted their physical examinations, but did not ask about, comment upon, or treat their obvious injuries.
Although Hany Ibrahim tested positive for tuberculosis, and was suffering from a painful and persistent cough, MDC staff refused to treat him for his condition.
Yasser Ebrahim complained of painful kidney stones to Lorenzo, who told him she was not authorized to do anything to treat the condition. The pain from the kidney stones was severe. Lorenzo told Ebrahim to drink 12 cups of water a day, but he was only given one cup with meals three times a day (and was not allowed to keep a cup in
14

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
his cell). Lorenzo subsequently arranged for Ebrahim to be allowed to keep a cup in his cell in order to drink water more frequently, but guards took the cup away when he was transferred to a new cell.
Baloch had repeated problems with ear infections prior to his detention. When he complained of an earache, Lorenzo refused to treat it, and his ear remained infected until after his release from detention.
Baloch wrote a letter to the warden requesting a transfer because his cellmate had tuberculosis. No action was taken in response. Baloch remained in the cell with the tubercular cellmate for approximately four weeks, and tests have since shown that he was exposed to tuberculosis.
h. Deliberate Interference with Religious Rights Plaintiffs allege that as a matter of policy, MDC defendants interfered with their ability to observe their Muslim faith. This interference included: (1) refusing to provide plaintiffs with a copy of the Koran for weeks or even months; (2) refusing to provide food that would conform to a Halal diet; (3) refusing to tell plaintiffs the time of day so that they could conform to daily prayer requirements or deliberately providing them with the incorrect time; and (4) constantly interrupting their prayers by banging on cell doors, screaming derogatory anti-Muslim comments, and telling plaintiffs to “shut the fuck up” while they were trying to pray.
5. Communications Blackout at the MDC
a. Holding Detainees Incommunicado Most post-September 11 detainees were held incommunicado during the first weeks of their detention. Family members, friends, and attorneys had great difficulty finding out whether someone had been arrested and detained, and if so, where they were being held. In addition, the classification of post-September 11 detainees as “Witness Security” or “Management Interest Group 155” inmates led MDC staff falsely to tell lawyers and family members that the individual detainee for whom they were looking was not at the MDC. The INS also designated post-September 11 detainees as “special interest cases,” which had the effect of closing their immigration hearings to both the general public and to family members.

months following their arrest while their lawyers and families made unsuccessful attempts to learn their status and whereabouts. Although various advocacy organizations sought to provide free legal services to post-September 11 detainees, the MDC refused to disclose detainees’ names, the facilities in which they were held, or other information about the individual detainees’ cases. MDC officials denied requests to visit post-September 11 detainees in need of legal assistance. In addition, while INS detainees typically receive a list of organizations that might provide free legal services, the lists given to the post-September 11 detainees contained inaccurate and outdated information.
After the initial “incommunicado” period, post-September 11 detainees were permitted to make one telephone call per week to their attorneys, and one social call per month. In practice, detainees were frequently denied these limited calls, because calls that resulted in busy signals or calls answered by voicemail “counted” as a legal call. In addition, MDC defendants (in particular Raymond Cotton) deliberately obstructed detainees’ efforts to telephone lawyers. The officers would bring a phone around to each cell, often before law offices were open, and each inmate who requested a phone call was required to place a call request from outside of their cell. The officers would regularly pretend to dial a number or deliberately dial a wrong number and then claim the line was dead or busy. They would then refuse to dial again, saying that the detainee had exhausted his quota for calls. MDC officers also were deliberately vague in ascertaining whether detainees wanted to make calls. In many instances, the unit counselor would ask “are you okay?” Several detainees told the OIG investigators that they did not realize that an affirmative response to this casual question meant that they opted to forgo their legal calls for the week.
The MDC also instituted a policy of videotaping detainees’ visits with their attorneys, including the recording of sound.18 As a result, post-September 11 detainees, including Baloch, Yasser Ebrahim, Hany Ibrahim, and Jaffri, were reluctant to speak candidly to their attorneys.

18

Audio taping of inmates’ meetings with attorneys is

prohibited by federal regulation. See 28 C.F.R. §

543.13(e). The OIG “concluded that audio taping

attorney visits violated the law and interfered with the

detainees’ effective access to legal counsel.” Supp. OIG

Report at 33.

b. Interference with Access to Counsel *21 Post-September 11 detainees had great difficulty obtaining legal representation. Some were held for

6. Denial of Consular Rights Many post-September 11 detainees were not advised of their right to seek assistance from their consulates (under
15

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
Article 36 of the Vienna Convention, non-citizen detainees must be advised of this right). Other detainees were coerced into waiving the right by signing forms they did not understand. When post-September 11 detainees did request to contact their consulates, those requests were repeatedly denied.
7. Failure to Provide Handbooks Post-September 11 detainees confined in the ADMAX SHU were not timely provided with the MDC handbooks that explain the procedures for filing complaints about mistreatment (or they were not provided with them at all).
E. The Defendants’ Personal Involvement *22 Plaintiffs allege that former Attorney General Ashcroft was a “principal architect” of the challenged policies and practices, and that FBI Director Mueller and former INS Commissioner Ziglar were instrumental in the adoption, promulgation and implementation of the challenged practices. TAC ¶ ¶ 23-25. Plaintiffs allege that these three Washington-based Defendants “authorized, condoned, and/or ratified” the harsh conditions under which post-September 11 detainees were held at the MDC and the Passaic Jail. Id.
Plaintiffs allege that the MDC Wardens, along with Associate Warden Sherman and other supervisory MDC defendants, “created the unconstitutional and unlawful policies and customs relating to the manner in which the post-9/11 detainees were detained at the MDC that are at issue in this suit.” TAC ¶ 136. Moreover, plaintiffs allege that these defendants exhibited gross negligence and deliberate indifference in their supervision of subordinates who had direct contact with post-September 11 detainees.
F. The Third Amended Complaint For ease of reference, in the Third Amended Complaint the plaintiffs assert the following claims, on their own behalf and on behalf of the putative class (unless otherwise indicated). The paragraph number reflects the claim number indicated in the complaint.
1. Detaining plaintiffs for months longer than necessary to secure removal or voluntary departure from the United States without (a) charging them with a crime or (b) affording them a hearing before a neutral judicial officer to determine whether there was probable cause to justify their continued detention, constituted an unreasonable seizure under the Fourth Amendment. Plaintiffs assert this claim against all defendants.
2. Detaining plaintiffs longer than necessary to secure

removal or voluntary departure from the United States without any legitimate immigration law enforcement purpose, and without evidence that they posed a danger or flight risk, violated plaintiffs’ due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
3. The policy of “unreasonably detain[ing]” plaintiffs and subjecting them to inhumane conditions of confinement violated their due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
5.19 Detaining plaintiffs longer than necessary to secure removal from the United States and subjecting them to harsher treatment than that accorded to similarly-situated non-citizens because of plaintiffs’ race, religion, and national origin violated plaintiffs’ right to equal protection under the Fifth Amendment. Plaintiffs assert this claim against all defendants.

19

Plaintiffs have withdrawn Claim 4, asserting violations

of the self-incrimination clause of the Fifth

Amendment. See Pl. Br. at 5 n. 4.

7.20 The policies and practices of deliberately interfering with plaintiffs’ religious practices, including (1) subjecting them to verbal and physical abuse; and (2) denying them the means for maintaining a religious practice, including the means to observe Halal food or daily prayer requirements, violated plaintiffs’ free exercise rights under the First Amendment. Plaintiffs assert this claim against all defendants.

20

Plaintiffs have withdrawn Claim 6, asserting a violation

of the right to a speedy trial under the Sixth

Amendment. See Pl. Br. at 5 n. 4.

*23 8. The policy of taking plaintiffs’ property and not returning it at the time of their removal or voluntary departure from the United States violated their right to due process under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
9-10. The arbitrary detention and cruel, inhuman, and degrading treatment of plaintiffs violated international law. Plaintiffs assert claims for this violation under the Alien Tort Statute, 28 U.S.C. § 1350, against all defendants.
11. The failure to notify plaintiffs of their right to communicate with consular officials violated plaintiffs’ rights under the Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77, Art. 36. Further, the failure to notify consular posts without
16

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

delay when plaintiffs requested to speak with officials from their respective consulates also violated the Vienna Convention. Plaintiffs assert this claim against all defendants.
12-16: The intentional beatings of Baloch, Ebrahim, Hany Ibrahim, Jaffri, and Saffi violated their rights under the Fourth and Fifth Amendments. These plaintiffs assert claims on their own behalf against various MDC defendants, including Hasty, Zenk, and Sherman.21

21

Specifically, plaintiffs assert this claim against the

“MDC Correctional Officer Defendants” and “MDC

Supervisor Defendants”. It was not clear from the

complaint whether plaintiffs intended also to include

the Wardens in their excessive force claims (because

the Wardens are included in the group plaintiffs

designate “MDC Policy and Implementation

Defendants” but not in the group called “MDC

Supervisor Defendants”). For the reasons stated on the

record at a hearing dated January 14, 2005, I find that

the Wardens are included as defendants on these

claims. I note, however, that Zenk was not appointed

Warden of the MDC until April 22, 2002. By that time,

Baloch, Jaffri, and Saffi had been removed from the

United States. Accordingly, claims 12 (Saffi), 13

(Jaffri), and 16 (Baloch) are dismissed as to Zenk.

17. Delaying the issuance of Notices to Appear violated plaintiffs’ right to due process under the Fifth Amendment. Plaintiffs assert this claim against all defendants.22

22

This claim is brought by five plaintiffs (Ebrahim, A.

Ibrahim, H. Ibrahim, Jaffri, and Sachdeva) on their

behalf and on behalf the putative class.

18. Denying bond without regard to whether the detainee posed a flight risk or danger (the blanket “no-bond” policy) violated plaintiffs’ right to due process. Plaintiffs assert this claim against all defendants.
19. Subjecting plaintiffs to the blanket no-bond policy because of their ethnic or religious identity violated their equal protection rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
20. The policy of classifying plaintiffs as “of high interest,” “Witness Security,” or “Management Interest Group 155” detainees without any defined criteria or individualized assessment of dangerousness or risk of flight (which led to “unnecessary and unreasonable restrictions on their liberty”), violated their procedural due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.23

23

This claim is brought by six plaintiffs (Baloch,

Ebrahim, A. Ibrahim, H. Ibrahim, Jaffri, and Sachdeva)

on their behalf and on behalf of the putative class.

21. The policy of subjecting plaintiffs to a “communications blackout,” as well as other measures that interfered with their access to lawyers and to the courts, violated their right to free speech under the First Amendment. Plaintiffs assert this claim against all defendants.
22. The policy of subjecting plaintiffs to a “communications blackout,” as well as other measures that interfered with their access to lawyers and to the courts, violated their due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
23. Subjecting plaintiffs to excessive and unreasonable strip searches unrelated to a legitimate penological purpose violated plaintiffs’ rights to privacy and due process under the Fifth Amendment, and violated the Fourth Amendment’s prohibition against unreasonable searches. Plaintiffs assert these claims against MDC defendants, including Hasty, Zenk, and Sherman.
*24 24. Detaining the named MDC plaintiffs for months longer than necessary to secure their removal or voluntary departure constituted false imprisonment, for which plaintiffs seek monetary damages from the United States pursuant to the FTCA.24

24

This claim is brought by the six MDC plaintiffs

(Baloch, Ebrahim, A. Ibrahim, H. Ibrahim, Jaffri, and

Saffi).

25. Delaying the “clearance investigations” of the named plaintiffs constituted negligence, for which plaintiffs seek monetary damages pursuant to the FTCA.
26. Denying adequate medical services to the named MDC plaintiffs constituted negligence, for which plaintiffs seek monetary damages pursuant to the FTCA.
27. The physical abuse of the named MDC plaintiffs and the manner in which that abuse was carried out constituted assault and battery, for which plaintiffs seek monetary damages pursuant to the FTCA.
28. Subjecting the named MDC plaintiffs to bright lights and loud noises for the purpose of interrupting their sleep constituted battery, for which plaintiffs seek monetary damages pursuant to the FTCA.
29. The treatment of the named plaintiffs, including (1)
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

accusing them of being terrorists and mass murderers; (2) subjecting them to gratuitous and humiliating insults to their ethnicity, religion, and physical anatomy; (3) threatening them with prolonged and permanent detention, torture, and death; (4) subjecting them to inhumane conditions of confinement; and (5) interfering with their religious practices, constituted the intentional infliction of emotional distress, for which plaintiffs seek monetary damages pursuant to the FTCA.
30. Refusing to return plaintiffs’ property constituted conversion, for which plaintiffs seek monetary damages pursuant to the FTCA.
31. The intentional beating of Ashraf Ibrahim violated his rights under the Fourth and Fifth Amendments. Ibrahim asserts this claim against various MDC defendants, including Hasty and Sherman.25

25

To the extent plaintiffs seek to assert this claim against

Zenk, it is dismissed. Zenk did not become Warden

until after Ashraf Ibrahim was deported.

DISCUSSION
A. The Motion to Dismiss Standard In considering a motion to dismiss under Rule 12(b)(1) or (6), a federal court is required to accept as true the factual assertions in the complaint and to draw all reasonable inferences in favor of the plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990) (Fed.R.Civ.P. 12(b)(6)); Shipping Fin. Serv. Corp. v. Drakos, 140 F .3d 129, 131 (2d Cir.1998) (Rule 12(b)(1)). The motion may not be granted unless “it appears beyond doubt ... that the plaintiff can prove no set of facts which would entitle him to relief,” Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997) (internal quotation marks omitted), because the question on a motion to dismiss is not “whether the plaintiff will ultimately prevail but, [rather,] whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds). However, in order to survive a motion to dismiss, the complaint must allege facts which, if “assumed to be true, confer a judicially cognizable right of action .” York v. Ass’n of the Bar of New York, 286 F.3d 122, 125 (2d Cir.2002).
B. Constitutional Claims
1. Subject Matter Jurisdiction *25 I begin by addressing the defendants’ several

arguments that the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), deprives the court of jurisdiction over certain of the plaintiffs’ constitutional claims.

a. Section 1252(b)(9) The defendants argue that 8 U.S.C. § 1252(b)(9) precludes review of claims 17-19 and 21-22 because those claims are subject to judicial review only by a petition for review of a final order of removal in the appropriate court of appeals.26

26

Specifically, 8 U.S.C. § 1252(a)(1) says that “judicial

review of a final order of removal ... is governed only

by chapter 158 of Title 28,” known as the Hobbs Act,

which vests exclusive jurisdiction for judicial review of

certain final orders of a federal agency in the courts of

appeals. 28 U.S.C. § 2342. Upon such review, the court

of appeals may “enjoin, set aside, suspend (in whole or

in part) or determine the validity of” the administrative

order. Id.

Section 1252(b)(9) provides:
With respect to review of an order of removal under subsection (a)(1) of this section, the following requirements apply:
...
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
Congress’s purpose in enacting this provision was “to consolidate judicial review into one proceeding,” INS v. St. Cyr, 533 U.S. 289, 313 (2001), not to eliminate it altogether. See Arar v. Ashcroft, 2006 WL 346439, *18-19 (E.D.N.Y.); see also Reno v. American-Arab Anti-Discrimination Comm. (“AADC” ), 525 U.S. 471, 483 (1999) (describing § 1252(b)(9) as a “zipper clause”). Accordingly, the Supreme Court has held that § 1252(b)(9) “applies only ‘with respect to review of an order of
18

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

removal under subsection (a)(1)” ‘and therefore, “by its own terms, does not bar ... jurisdiction over [actions] not subject to judicial review under § 1252(a)(1)....” St. Cyr, 533 U.S. at 313.
Not surprisingly, the plaintiffs argue that “the challenges presented here could not have been reviewed on a petition for review” because the plaintiffs contest only their detention, not their removal. Pl. Br. at 8. With respect to claims 18 and 19, challenging the plaintiffs’ having been denied bond, this is simply not true. The regulations governing the jurisdiction of the Board of Immigration Appeals specifically provide that the Board may review appeals from “[d]eterminations relating to bond, parole, or detention of an alien,” 8 C.F.R. § 1003.1(b)(7); see also 8 C.F .R. § 1236.1(d). Had the plaintiffs invoked the Board’s jurisdiction, they could have sought review of the Board’s decision when their orders of removal became final. Of the two plaintiffs who allege they applied for bond, both admit that the Immigration Judge denied their requests because he was not convinced that they would appear at future hearings. TAC ¶ 188. The denial of bond, serving to assure the plaintiffs’ presence for later removal proceedings, appears on its face to “aris[e] from ... action taken ... to remove” the plaintiffs. 8 U.S.C. § 1252(b)(9). Claims 18 and 19 are accordingly dismissed.27

27

Plaintiff Turkmen is wrong in asserting that because he

was granted voluntary departure he was not subject to a

final order of removal and therefore could not have

filed a petition for review in the court of appeals after

exhausting his administrative remedies. The Second

Circuit routinely entertains petitions for review filed by

aliens who have been granted voluntary departure. See,

e.g., Paul v. Gonzalez, 444 F.3d 148 (2d Cir.2006)

(granting petition for review brought by alien who was

allowed voluntary departure).

*26 Claims 21-22 allege that the “communications blackout” violated the plaintiffs’ rights (1) to due process under the Fifth Amendment and (2) to obtain access to legal counsel and to petition the courts for redress of their grievances under the First Amendment. An alien has a right to counsel “in proceedings before an Immigration Judge ... at no expense to the government.” 8 C.F.R. 1003.16(b); In re Madrigal-Calvo, 21 I. & N. Dec. 323 (1996) ( “The right to counsel in immigration proceedings derives from the Due Process clause, the [INA], and the regulations promulgated under the [INA], and entitles an alien to obtain counsel at his own expense.”). And claims by an alien that the right to counsel has been denied may properly be presented to the BIA and then to the court of appeals on a petition for review. See Michel v. INS, 206 F.3d 253, 258 (2d Cir.2000) (reviewing alien’s claim that he was denied the right to counsel in immigration proceedings). Therefore, to the extent the plaintiffs challenge the communications blackout as having

prejudiced them in immigration proceedings, their claims could have been brought in a petition for review.
Whether the communications blackout was “action taken ... to remove an alien from the United States” presents a separate issue. In ordinary usage, an action taken “to” do something means an action taken “for the purpose of” doing the thing. See Webster’s Third New International Dictionary Unabridged (2002). It does not appear, however, even from the defendants’ briefs on this motion, that one of the purposes of the communications blackout was “to remove” the plaintiffs; rather, the purposes were to investigate the terrorist attacks of September 11, to prevent further attacks, and to preserve institutional security. See, e.g., Def. Br. at 70 (“the possibilities that one terrorist might tell another which of their members were compromised by the investigation, and which were not, or might convey the substantive and geographic focus of the investigation were dangers that the Government had an obligation to prevent”). I conclude that the defendants did not subject the plaintiffs to the communications blackout for the purpose of removing them, and therefore claims 21-22 are not barred by § 1252(b)(9).28

28

It might be argued on this reasoning that the plaintiffs’

bond claims should not be dismissed, because the real

purpose (according to the complaint) for denying bond

was to hold the plaintiffs until they were cleared of

terrorist connections. The decision whether to grant the

plaintiffs bond, however, was justified by a judicial

officer for a facially legitimate reason: to secure their

presence at later hearings and ultimately for removal. It

would circumvent the intention of a zipper clause like §

1252(b)(9) altogether to hold that it does not apply

when an alien doubts whether the Immigration Judge

was being candid in stating that bond was denied to

ensure the alien’s presence for removal. In short, I do

not think the Congress intended for courts, outside the

context of a petition for review, to look behind the

Immigration Judge’s decision denying bond.

Claim 17, which challenges the Attorney General’s delay in serving the plaintiffs with Notices to Appear after having detained them, survives on similar terms. Before an alien detainee has been served with a Notice to Appear, there has been no “action taken” or “proceeding brought”; the alien has simply been detained but not charged with a violation of any kind. Moreover, before a formal charge is made, the act of detaining an alien, standing alone, has no objectively identifiable purpose-perhaps the authorities are still pondering what charges, if any, will be made-and it therefore cannot be said that the purpose of the detention is “to remove an alien.” It is only upon the filing of a charge that the purpose of the detention is declared, both to the alien and to the adjudicator. The plaintiffs’ challenge to the period of time the Attorney General constitutionally may refrain from charging an alien after
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
detaining him thus challenges a failure to act or bring proceedings, which I conclude is outside the sweep of § 1252(b)(9).
b. Section 1252(g) *27 The defendants next argue that § 1252(g) deprives the court of jurisdiction over claims 1, 2, 5, and 17. Section 1252(g) provides:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
As the Supreme Court held in AADC, this provision “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders,” ’ and does not cover “all claims arising from deportation proceedings.” 525 U.S. at 482. In Zadvydas v. Davis, addressing a set of constitutional challenges to the lengthy detention of aliens who had been ordered removed, the Court held that § 1252(g) did not apply. 533 U.S. 678, 687-88 (2001) (“Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here.”).29 That holding covers claims 1-2, which allege, quite similarly to the claims in Zadvydas, that the length of the plaintiffs’ post-removal detention violated due process, as well as claim 5, which alleges that the plaintiffs were singled out for longer detention on the basis of their race, religion, and national origin. Although the Court in Zadvydas based its jurisdiction on “the primary federal habeas corpus statute, 28 U.S.C. § 2241,” 533 U.S. at 687, there is no indication it concluded that § 1252(g) was inapplicable to such claims in an attempt to construe that provision narrowly to avoid a constitutional question under the Suspension Clause. U.S. Const., art. 1 § 9. Rather, the limitation seems to me based on the notion that detaining an alien in between the discrete actions specified in § 1252(g)-namely, between adjudicating the alien’s case and actually removing him-is beyond the scope of § 1252(g); such detention is instead one of the “many other decisions or actions that may be part of the deportation process” acknowledged by the

Court AADC. 525 U.S. at 482.30

29

As Justice Kennedy noted in dissent, the Government

conceded the issue of jurisdiction in Zadvydas, 533

U.S. at 724. The Court could not have simply assumed

jurisdiction for the purpose of deciding the merits, see

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

101-102 (1998) (“For a court to pronounce upon the

meaning or the constitutionality of a state or federal law

when it has no jurisdiction to do so is, by very

definition, for a court to act ultra vires.”), and therefore

its conclusion that no provision of the IIRIRA deprived

it of jurisdiction was essential to its decision and

constitutes a precedent binding upon this court.

30

The Government has not argued that the plaintiffs’

length-of-detention claims (1-2, and 5) are barred by

the seemingly broader § 1252(b)(9). I assume this is

due to the limitation read into that provision in St. Cyr

described above, that it “does not bar ... jurisdiction

over [actions] not subject to judicial review under §

1252(a)(1)....” 533 U.S. at 313, and I am satisfied that

had jurisdiction over such claims relating to the length

of post-removal detention been available on a petition

for review, the defendants would have pressed the

argument here.

As for claim 17, according to the defendants, “the statute makes clear that decisions on when to commence immigration proceedings ... are matters of prosecutorial discretion” and are therefore unreviewable. Def. Br. 22 (emphasis added). That argument mischaracterizes claim 17. As explained above, the plaintiffs do not challenge the Attorney General’s authority to decide when to “commence proceedings” against them. They challenge his authority to detain them longer than 48 hours without commencing proceedings against them. The latter is a far cry from “prosecutorial discretion.” Section 1252(g) covers (among other things of course) the Attorney General’s decision whether to commence proceedings or not, as in AADC. 525 U.S. at 484-85. It has nothing to do with how long the Attorney General may detain an alien while deciding whether to commence proceedings, and thus it does not apply to claim 17.

c. Section 1252(a)(2)(B)(ii) *28 The Supreme Court’s brief jurisdictional explanation in Zadvydas also disposes of the defendants’ argument that § 1252(a)(2)(B)(ii) divests the court of jurisdiction over claims 1-2, and 18-20. That section provides:
Notwithstanding any other provision of law ... no court shall have jurisdiction to review-
...
20

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
As in Zadvydas, the plaintiffs here “do not seek review of the Attorney General’s exercise of discretion; rather, they challenge the extent of the Attorney General’s authority.... And the extent of that authority is not a matter of discretion.” 533 U.S. at 688; see also Demore v. Kim, 538 U.S. 510, 516-17 (2003) (“Respondent does not challenge a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release. Rather, respondent challenges the statutory framework that permits his detention without bail.”).
In sum, the IIRIRA requires dismissal only of the plaintiffs’ claims that they were denied bond in violation of the Constitution. That no statute deprives the Court of jurisdiction, however, does not alone indicate that the plaintiffs’ remaining constitutional claims are redressable through an implied right of action. I turn now to that issue.
2. Bivens Liability In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that a private cause of action under the Constitution was available to recover damages against federal officers for violations of Fourth Amendment rights. This cause of action was later extended to allow recovery for other constitutional violations. See, e.g., Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment); cf. Bush v. Lucas, 462 U.S. 367, 377-80 (1983) (refusing to allow a Bivens suit on the ground that Congress had created adequate alternative remedies, but generally recognizing the existence of such a cause of action for violations of the First Amendment). Courts generally treat a Bivens claim as analogous to the cause of action created by 42 U.S.C. § 1983, which permits recovery where federal rights are violated by state officials. See Wilson v. Layne, 526 U.S. 603, 609 (1999) ( “Although this case involves suits under both § 1983 and Bivens, the qualified immunity analysis is identical under either cause of action.”); Butz v. Economou, 438 U.S. 478, 498-99 (1978) (treating a Bivens claim as directly analogous to a § 1983 claim). As in § 1983 actions, there is no respondeat superior liability in a Bivens action. See Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 691-95 (1978); Ellis v. Blum, 643 F.2d 68, 85 (2d Cir.1981). Accordingly, in order to state a Bivens claim against a federal officer, the plaintiff must allege that the defendant

had personal involvement in the alleged constitutional violation. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001) (“Proof of an individual defendant’s personal involvement in the alleged wrong is, of course, a prerequisite to his liability on a claim for damages under § 1983.”).
*29 The Supreme Court has carved out two exceptions to the availability of Bivens damages. A Bivens remedy is unavailable (1) “when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective,” Carlson, 446 U.S. at 18-19; and (2) where there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Id.; see, e.g., United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding that the unique disciplinary structure of the military constituted “special factors counselling hesitation” such that no Bivens remedy “is available for injuries that arise out of or are in the course of activity incident to service”) (internal quotation marks omitted); Bush, 462 U.S. at 388-89 (refusing to extend a Bivens claim to a federal employee in light of the comprehensive scheme Congress had established over the field of federal employment).
The defendants take up the second exception here, arguing that the “INA’s comprehensive regulatory scheme constitutes a ‘special factor” ’ counselling against “creation of a damages remedy” with respect to claims 1-2, 5, 7, 17, and 20-22. Def. Br. 25. Relying principally upon Bush v. Lucas, 462 U.S. 367 (1982), and Schweiker v. Chilicky, 487 U.S. 412 (1988), in which the Supreme Court refused to permit a Bivens remedy in the face of “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations,” Bush, 462 U.S. at 388, the defendants argue that the INA “serves as a comprehensive regulatory scheme concerning the degree to which the United States, as a sovereign nation, allows aliens within its borders,” Def. Br. at 26. Accordingly, the defendants argue, “Congress’s failure to provide aliens a private cause of action for monetary damages cannot be seen as inadvertent.” Id.
I do not find these arguments persuasive. The constitutional rights the plaintiffs assert-the rights to due process of law, to equal protection of the laws, and to be free from unreasonable searches and seizures-apply not only to citizens but also to aliens present in our country. By leaving the plaintiffs’ conditions-of-confinement claims out of their “special factors” arguments, the defendants implicitly acknowledge that Congress should not lightly be presumed to contemplate that constitutional violations by executive branch officials should be left without a remedy. Although, as the defendants say, the INA provides a comprehensive regulatory scheme for managing the flow of immigrants in and out of the
21

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
country, it is by no means a comprehensive remedial scheme for constitutional violations that occur incident to the administration of that regulatory scheme. As the Supreme Court explained in Schweiker, “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.” 487 U.S. at 423. Yet the defendants point to no evidence that the Congress gave thought to what remedies should be available when immigration officials, for example, unconstitutionally detain an alien after he has been ordered removed. Indeed, under the defendants’ theory, the plaintiffs would not be entitled to compensation even if they were detained for twenty years before a Notice to Appear was filed, then for twenty years more after they were ordered removed, all with no telephone calls or access to a lawyer. That, of course, does not sound right. And if it is not right, then the defendants’ argument that the particular claims asserted here should not be entertained must be grounded in their belief that the constitutional violations alleged are not serious enough, or that the official conduct involved was reasonable under the circumstances. That is a merits argument, not a threshold one.
*30 Nor am I persuaded that the events of September 11, 2001 provide any cause to relax enforcement of the rights guaranteed by our Constitution. See Elmaghraby v. Ashcroft, 2005 WL 2375202 at *14 (E.D.N.Y.). Rather, as I explained in Elmaghraby, the extraordinary factual context that gave rise to the plaintiffs’ detention is best considered in the analysis of whether the defendants are entitled to qualified immunity. Id.
3. Qualified Immunity The defendants seek dismissal of all of plaintiffs’ Bivens claims on qualified immunity grounds. Under that doctrine, government officials performing discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In Wilson v. Layne, the Supreme Court declared that “[a] court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.” ’ 526 U.S. at 609, quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999). Only if a determination is made that the constitutional right plaintiff alleges to have been violated exists does a court turn to the question of whether the defense of qualified immunity applies. Wilson, 526 U.S. at 609; Patel v. Searles, 305 F.3d 130, 135 (2d Cir.2002); Wilkinson v. Russell, 182 F.3d 89, 103 (2d Cir.1999).

“In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.1996). In determining whether a right was clearly established, courts consider the following: (1) whether the law was defined with reasonable clarity; (2) whether Supreme Court or Second Circuit precedent recognizes the right; and (3) whether a reasonable defendant would have understood from the existing law that his conduct was unlawful. Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir.1998). With respect to the second prong of the qualified immunity analysis, an officer may still be entitled to qualified immunity even where his actions were unlawful, provided that the constitutionality of his conduct was debatable. See Danahy v. Buscaglia, 134 F.3d 1185, 1190 (2d Cir.1998) (immunity applies whenever “officers of reasonable competence could disagree on the legality of defendant’s actions”) (internal quotation marks omitted); Lennon v. Miller, 66 F.3d 416, 423 (2d Cir.1995) (“[I]t is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials ... should not be held personally liable”) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
4. The Plaintiffs’ Conditions of Confinement Claims (Claims 3 and 23) *31 Plaintiffs allege that the conditions of their confinement violated their rights to due process under the Fifth Amendment and to be free from unreasonable searches and seizures under the Fourth Amendment.
a. The Due Process Standard Defendants and plaintiffs disagree regarding the proper legal standard applicable to claims by alien detainees that the conditions of their detention violated due process. Plaintiffs argue that these claims are governed by the standard set forth in Youngberg v. Romeo, 457 U.S. 307, 323 (1982). There, the Supreme Court held that official liability for conditions inflicted upon a retarded man involuntarily committed to a state institution was appropriate upon a showing of a “substantial departure from accepted professional judgment, practice, or standards.” Id. The defendants contend that claims of unconstitutional conditions of confinement made by INS detainees should be evaluated under the stricter standard applicable to pretrial detainees. Neither plaintiffs nor defendants cite a Second Circuit case addressing the applicable standard for evaluating such claims made by INS detainees, and I have found none.
22

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
I consider plaintiffs’ claims of unconstitutional confinement under the standard applicable to such claims asserted by pretrial detainees. In doing so, I rely on the Supreme Court’s language in Youngberg regarding the significance of the purpose of detention in determining how challenges to the conditions of that confinement should be evaluated. See Youngberg, 457 U.S. at 320 n. 27. In Youngberg, a retarded man had been involuntarily committed by his mother because she could no longer adequately care for him. The “purpose of [his] commitment was to provide reasonable care and safety.” Id. The Court found that the standard of treatment to which he was entitled was determined, at least in part, by the purpose of his confinement. See id. at 321-22 (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”).
The purpose of confinement relied upon in Youngberg does not exist in the context of detention for immigration violations. The Attorney General is required to detain all aliens ordered removed until they actually depart, up to a period of 90 days (the “removal period”). 8 U.S.C. § 1231(a)(2); see also, Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (citing the government’s asserted regulatory goals of INS detention as “ensuring the appearance of aliens at future immigration proceedings” and “preventing danger to the community.”). The statute that permits an alien to be detained subsequent to the statutory removal period, as these plaintiffs were, indicates that the underlying purposes of detaining aliens ordered removed is to ensure the safety of the community and compliance with the removal order. See 8 U.S.C. § 1231(a)(6) (“An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period”); 8 C.F.R. § 241.4 (listing alien’s history of flight and potential threat to the community among the factors to consider in determining whether further detention is warranted). Nothing in the factors to be considered in determining whether further detention is warranted suggests that the purpose of the detention is to provide care and safety to the detainee, which was the purpose of the detention in Youngberg.
*32 This justification is similarly absent in the context of pretrial detention. Pursuant to 18 U.S.C. § 3142(e), a person charged with a criminal offense may be detained before trial if it is determined that detention is necessary to assure his appearance as required or the safety of the community. Based upon the analogous reasons underlying pre-trial and INS detention, I conclude that the same standard should govern challenges to both forms of

detention. See Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir.2000).
Pretrial detainees’ challenges to the conditions of their confinement are governed by the Due Process Clause of the Fifth Amendment, rather than the Eighth Amendment’s prohibition against cruel and usual punishment, which applies in the context of convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). Due process requires that detainees who have not been convicted of a crime not be punished. Id. at 537. The central question in determining whether conditions of confinement “amount to punishment” is whether the conditions were “imposed for the purpose of punishment”:
Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment. Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
Id. at 538-39 (internal citations and quotations marks omitted). It may also be possible to infer, from statements and conduct of the defendants, that the conditions were imposed for the purpose of punishment. See, e.g., Mahase v. City of New York, No. 96 CV 6105, 2000 WL 263742 at *6 (E.D.N.Y. Jan. 5, 2000) (hostility and accusation that plaintiff was “playing the big shot” by requesting more sanitary facilities were allegations sufficient to permit inference of intent to punish).
b. Whether Plaintiffs Have Stated a Claim
1. MDC Plaintiffs The plaintiffs who were detained at the MDC allege that
23

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

they were: (1) repeatedly strip searched; (2) repeatedly placed in handcuffs, chains, and shackles; (3) deprived of hygienic implements, such as soap and toilet paper; (4) deprived of nutritious food; (5) subjected to extremely cold temperatures; (6) confined in cells that were illuminated 24 hours per day; and (7) subjected to both verbal and physical abuse.32

32

Each individual plaintiff does not allege that he was

subjected to each of these conditions or restrictions.

However, as explained further below, on these facts, I

conclude that any one of these allegations, taken by

itself, may have been imposed for the purpose of

punishment and may be sufficient to state a claim for

punishment without due process of law. See Bell, 441

U.S. at 535-38.

Defendants contend that the conditions of confinement alleged by plaintiffs were not imposed for the purposes of punishment or for interfering with the plaintiffs’ religious practices and therefore did not violate due process. They argue that plaintiffs’ conditions of confinement, specifically handcuffing, shackling, and strip searches, were reasonably related to the defendants’ interests in maintaining jail security. Def. Br. at 55. In addressing plaintiffs’ various challenges to the conditions of their cells, defendants argue that these allegations are too generalized to state a claim.
*33 Whether a due process violation exists “must be considered in light of the particular circumstances of each case and the particular facility in question.” Lareau v. Manson, 651 F.2d 96, 103 (2d Cir.1981) (prison violated due process rights of pretrial detainees by confining them in overcrowded conditions). “[T]he duration of confinement should be taken into account in judging the constitutionality of certain conditions.” Id. (finding that double-bunked cells and overloaded dayrooms violate the Fourteenth Amendment when they are imposed for more than a 15-day period). Accordingly, in reviewing plaintiffs’ claims, I am mindful of the fact that plaintiffs were not accused of any crime and were detained for significant periods of time, up to almost seven months.
Plaintiffs’ allegations permit the inference that the conditions imposed upon them constituted punishment. First, and most significantly, the allegations of verbal and physical abuse alone permit the inference of an intent to punish. Indeed, assuming plaintiffs’ allegations to be true, several MDC defendants expressly communicated their intent to punish plaintiffs. Second, these conditions, such as the strip searches and restraints, seem excessive and arbitrary in light of the fact that plaintiffs were not accused of committing any violent crimes. See Bell, 441 U.S. at 539 n. 20 (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the

institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.”); Roundtree v.. City of New York, 778 F.Supp. 614, 623 (E.D.N.Y.1991) (“[I]it is not difficult to conclude that denial of access to a lavatory or to a telephone after arrest, as well as providing food poorly suited for human consumption, might well be arbitrary or purposeless and a restriction or condition not reasonably related to a legitimate governmental goal such that, accordingly, an intent to punish may be inferred.”) (internal quotation marks and citations omitted).
Based on the allegations in the complaint, I cannot conclude that plaintiffs could prove no set of facts that would entitle them to relief. To the contrary, given the allegations of verbal and physical abuse, and the restraints and conditions imposed upon these detainees, it is not difficult to conclude that various conditions of their confinement were imposed for the purpose of punishment and violated their due process rights. See Wright v. McMann, 387 F.2d 519, 526 (2d Cir.1967) (Eighth Amendment violation occurred where a prisoner was denuded and exposed to bitter cold in solitary confinement cell for substantial period of time and was deprived of soap and toilet paper); Mahase, 2000 WL 263742 at *6 (allegations of unsanitary facilities in central booking, denial of toilet paper after having informed guards of menstrual bleeding, insufficient food, denial of contact with family or attorney, and punitive intent sufficient to defeat motion to dismiss); Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir.1996) (plaintiff stated Eighth Amendment violation where his cell was constantly illuminated and he had no way of telling day from night); see also Shain v. Ellison, 273 F.3d 56, 63 (2d Cir.2001) (policy subjecting persons charged with misdemeanors to a strip search without individualized reasonable suspicion unconstitutional); cf. Bowman v. City of Middleton, 91 F.Supp.2d 644, 665 (S.D.N.Y.2000) (no due process violation where there was no evidence of punitive intent, and order that arrestee be cuffed and shackled when outside his cell was based on specific determination that arrestee was a threat in light of note he had sent to county jail superintendent).
2. Passaic Plaintiffs *34 The plaintiffs who were detained at Passaic Jail (Turkmen and Sachdeva) allege that they were (1) housed in the general prison population with individuals who were charged with or convicted of violent crimes (2) under severely overcrowded conditions and (3) threatened by guards with menacing dogs. The plaintiffs have pointed to no binding authority that assigning pretrial or immigration detainees to the general population of a jail
24

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

violates the Due Process Clause (indeed, this claim is somewhat ironic in light of the MDC plaintiffs’ claims that it violated due process for them to be housed separately). That allegation does not state a due process violation. With respect to overcrowding, the Second Circuit held in Lareau that despite the Supreme Court’s admonition that “there is no ‘one man, one cell’ principle lurking in the Due Process Clause,” Bell, 441 U.S. at 542, housing pretrial detainees in overcrowded conditions can still amount to punishment and thus violate the Constitution. “The question is one of degree and must be considered in light of the particular circumstances of each case and the particular facility in question.” Lareau, 651 F.2d at 103. Similarly, whether the alleged threats involving “menacing dogs” were so outrageous as to shock the conscience depends on all the circumstances. For example, if a guard threatened to do serious harm to a detainee using a dog, or actually used a dog to place a detainee in fear of being mauled, that could well violate due process. On the other hand, if a guard merely performed his normal duties accompanied by a mean-looking dog in order to deter prisoners from challenging her authority, that would not violate due process. The plaintiffs’ allegations do not specify precisely how the “menacing dogs” were used.33 There is no requirement that they do so. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002). At this stage of the case, it suffices to say that defendants have not established that there is no set of facts supporting those allegations on which plaintiffs would be entitled to relief. In short, these fact-bound due process issues cannot properly be decided on a motion to dismiss.

33

Paragraph 268 of the TAC alleges that Turkmen was

“threatened by guards with menacing dogs”; paragraph

282 alleges that Sachdeva “was also threatened by

menacing dogs.”

c. Qualified Immunity With respect to defendants’ claim that they are entitled to qualified immunity, it is clearly established that conditions of confinement may not be imposed for the purpose of punishment. Bell, 441 U.S. at 538; Curry v. Kerik, 163 F.Supp.2d 232, 236 (S.D.N.Y.2001) (“A practice or policy constitutes punishment when there is a showing of expressed intent to punish on the part of detention facility officials, when there is no legitimate non-punitive government purpose to which the restriction or condition may rationally be connected, or when the restriction is excessive in light of that alternative purpose.”). If the plaintiffs’ allegations are proven, then clearly established law was violated, and no reasonable officer could conclude otherwise. Accordingly, because the defendants’ claims of qualified immunity are

inextricably bound up in the disputed facts relating to the conditions of confinement, I cannot conclude at this stage that defendants are entitled as a matter of law to qualified immunity on these claims. See Shain, 273 F.3d at 66.
d. Personal Involvement *35 The moving defendants argue that plaintiffs’ claims of unconstitutional conditions of confinement must be dismissed because plaintiffs fail to allege their personal involvement.
It is true that in order to establish a Bivens claim, plaintiffs must allege facts showing that the defendant was personally involved in the alleged constitutional violation. Ford v. Moore, 237 F.3d 156, 161 (2d Cir.2001). “Direct participation, however, is not necessary.” Morris v. Eversley, 205 F.Supp.2d 234, 241 (S.D.N.Y.2002). Plaintiffs can state a claim for personal involvement by alleging that the defendants at issue: (1) participated directly in the alleged violation; (2) after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) created a policy or custom, or allowed the continuance of such a policy or custom, under which unconstitutional practices occurred; (4) were grossly negligent in supervising subordinates who committed the unlawful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)).
Although ordinarily the bare assertion that high-level executive officials were responsible for an unconstitutional policy, without more, is insufficient to state a Bivens claim, see Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir.1989), for the reasons I stated in Elmaghraby v. Ashcroft, I conclude that the MDC plaintiffs have alleged, principally through incorporation of the OIG Report, “sufficient facts to warrant discovery as to the defendants’ involvement, if any, in [the] polic [ies] that subjected plaintiffs to lengthy detention in highly restrictive conditions while being deprived of any process for challenging that detention.” 2005 WL 2375202 at *20 & n. 20 (“The April 2003 OIG report ... suggests the involvement of Ashcroft, the FBI Defendants, and the BOP Defendants in creating or implementing a policy under which plaintiffs were confined in restrictive conditions until cleared by the FBI from involvement in terrorist activities.”). See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (supervisory liability under Bivens may be shown by “creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue,” or by the “failure to act on information indicating that unconstitutional acts were
25

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

occurring.”). See also TAC ¶ 76 (quoting Ashcroft as saying “Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you”; and “Let the terrorists among us be warned. If you overstay your visa even by one day, we will arrest you. If you violated a local law we will ... work to make sure that you are put in jail and ... kept in custody as long as possible.”). The plaintiffs have argued that the Washington-based defendants created a policy “that the time served by those rounded-up would be ‘hard-time’ and that their Muslim faith would not be respected while in custody.” Plaintiffs’ Br. in Opp. to Mtn. to Dismiss Sec. Amend. Cmplt. 44. Alternatively, the plaintiffs have argued that “[t]he widespread and patterned nature of the pleaded violations are themselves evidence of constructive notice” to high-ranking officials. Id. at 46. It is too early to tell whether the plaintiffs will be able to prove such allegations, but it is also too early to fairly conclude that they should not be permitted the opportunity to do so.
*36 In sharp contrast to the MDC plaintiffs, however, the Passaic plaintiffs make no allegation that they were singled out for harsh treatment as post-September 11 detainees; indeed, they specifically allege that they were lumped in with the general population. The other inmates at Passaic were thus subject to the same overcrowded conditions and, from all the complaint reveals, the same menacing dogs. The plaintiffs’ theory of personal involvement, then-that the Washington-based defendants were the “principal architect[s],” Pl. Br. at 18, of the investigation into the September 11 attacks, including directing the harsh conditions under which detainees were to be held-does not extend to the Passaic jail, where, according to the complaint, post-September 11 detainees were treated like the rest of the inmates. Whatever injury the plaintiffs suffered at Passaic from dogs or overcrowding,34 they have not alleged that such injury was in any way because of a policy initiated in response to the September 11 attacks. Accordingly, the Passaic plaintiffs having failed to sue any official who actually worked at the Passaic Jail, claim 3 is dismissed as to plaintiffs Turkmen and Sachdeva.

34

Claim 7, on the other hand, can fairly be construed to

allege that the Passaic plaintiffs were singled out for

mistreatment-intentional interference with their Muslim

faith-as a result of their status as post-September 11

detainees.

6. Interference With Religious Practices (Claim 7) The plaintiffs allege the defendants deliberately interfered with their religious practices in violation of the Free Exercise Clause. Specifically, plaintiffs allege they were (1) denied copies of the Koran; (2) denied Halal food; (3)

refused information regarding the date or time of day so that they were unable to say the appropriate prayers; and (4) constantly interrupted during daily prayers. The defendants appear to concede that these allegations state a claim for violation of clearly established law under the Free Exercise Clause, see, e.g., Benjamin v. Coughlin, 905 F.2d 571, 574-75 (2d Cir.1990), but argue that the “context of those allegations makes clear that the alleged perpetrators were prison guards and staff members,” not the moving defendants. For the reasons just explained above, however, it cannot be said, without first permitting some discovery into the matter, that the plaintiffs can prove no set of facts that will entitle them to relief against the moving defendants on this claim. The plaintiffs have alleged that high-level officials had knowledge or reasonably should have known that the religious rights of Muslim detainees were being intentionally violated, and that those officials were complicit in such treatment. If proved, then the plaintiffs are entitled to recover on claim 7. See Richardson, 347 F.3d at 435. The defendants motion to dismiss claim 7 is therefore denied.
7. Procedural Due Process in Assignment to the ADMAX SHU (Claim 20) Claim 20 alleges that the defendants violated the plaintiffs’ rights to procedural due process by assigning them to the ADMAX SHU “without ... process of any sort” and without affording them any means to challenge their continued detention there. TAC ¶ 391. The Second Circuit clearly established in Tellier v. Fields, 280 F.3d 69, 80-81 (2d Cir.2000), that assignment to the SHU at the MDC affected a protectable liberty interest created by BOP regulations, see 28 C.F.R. § 514.22. Taking as true the plaintiffs’ allegation that they received no process at all before being assigned to the SHU (and kept there), they have stated a claim. Further, as I explained in Elmaghraby, the context of the September 11 investigation does not, as the defendants argue, “extinguish any rights otherwise conferred by [28 C.F.R.] § 541.22.” 2005 WL 2375202 at *18. The argument that “constitutional and statutory rights must be suspended during times of crisis ... is supported neither by statute nor the Constitution.” Id., citing Hamdi v. Rumsfeld, 542 U.S. 507, 532 (“It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”). I conclude that the plaintiffs have sufficiently alleged the defendants’ personal involvement in this claim, and therefore the motion to dismiss claim 20 is denied. See id. at *20 & n. 20.
8. The Length of Detention Claims *37 Plaintiffs allege that their detention for “months
26

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
longer than necessary to secure their removal from the United States,” without either a probable cause hearing or “any legitimate immigration law purpose,” violated their Fourth Amendment right to be free from unreasonable seizures and their Fifth Amendment right not to be deprived of their liberty without due process of law. TAC ¶¶ 289, 294. These claims are essentially predicated upon plaintiffs’ allegation that they were ready to be removed immediately and that the Attorney General had a duty of reasonable dispatch to remove them as early as practicable.
As noted earlier, once an alien is ordered removed, the government is required to detain him until removal is effected, at least for the first 90 days. 8 U.S.C. § 1231(a)(2). If the government fails to secure removal during that time, then the alien may be further detained:
An alien ordered removed [1] who is inadmissible ... [or][2] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period....
Zadvydas, 533 U.S. at 682 (citing 8 U.S.C. § 1231(a)(6) (alterations in original)). Pursuant to INS regulations, the INS District Director or Director of the Detention and Removal Field Office conducts a review of the alien’s record (“custody review”) prior to the expiration of the 90-day removal period to determine whether post-removal-period detention is warranted. 8 C.F.R. §§ 241.4(c)(1), (h), (k)(1)(i). Factors considered in making this determination include the detainee’s criminal conduct, mental fitness, ties to the United States, prior immigration violations and history, and the likelihood that the alien is a significant flight risk or a potential danger to the community. 8 C.F.R. § 241.4(f). In the event that the alien is further detained, the regulations require additional periodic custody reviews. 8 C.F.R. §§ 241.4(k)(1)(ii), (2). Notice of the review is provided to the alien so that he may submit information in support of his release. 8 C.F.R. § 241.4(h)(2).
The Fifth Amendment prohibits the government from “depriv[ing]” any person of “liberty ... without due process of law.” Plaintiffs argue that their detention violated “substantive due process,” which “prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept

of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987) (internal quotation marks and citations omitted). This prohibition applies to citizens and non-citizens, “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693 (citing Plyler v. Doe, 457 U.S. 202, 210 (1982)).
*38 In Zadvydas, two aliens who had been ordered removed claimed that the length of their post-removal-period detention violated their due process rights. The government had been unable to remove the aliens, both of whom had been convicted of crimes while in the United States, because no country was willing to accept them. In response to the plaintiffs’ claims, the government argued that 8 U.S .C. § 1231(a)(6) authorizes indefinite post-removal-period detention. After concluding that such a reading would render the statute unconstitutional in some applications under the Due Process Clause, the Supreme Court held that “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” Zadvydas, 533 U.S. at 699.
The Court in Zadvydas acknowledged the potentially difficult task lower courts face in determining whether a removal is reasonably foreseeable, particularly when they must give appropriate “decisionmaking leeway” to the executive branch based on its particular expertise in this area and the administrative difficulties associated with immigration law enforcement. Id. at 700. In order to limit the number of cases in which courts would have to make these “difficult judgments,” the Court recognized a presumptively reasonable period of detention. As the Second Circuit has since explained:
The Court stated that detention is presumptively reasonable for six months following a final removal order, and that, after the first six months, detention violates [the statute] if (1) an alien demonstrates that there is no significant likelihood of removal in the reasonably foreseeable future and (2) the government is unable to rebut this showing.
Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir.2003) (citing Zadvydas, 533 U.S. at 701). Accordingly, detention beyond the six-month period is not per se unreasonable. Further detention is permissible “until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
Applying Zadvydas, the Second Circuit held in Wang that the “reasonable foreseeability” test not only defines when
27

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
immigration detention is a statutory violation but also “articulates the outer bounds of the Government’s ability to detain aliens (other than those serving criminal sentences) without jeopardizing their due process rights.” Wang, 320 F.3d at 146. Thus, detention of an alien when removal is no longer “reasonably foreseeable” violates both 8 C.F.R. § 241.4(i)(7) and the Due Process Clause. Wang, 320 F.3d at 146.
Plaintiffs argue that the analysis set forth in Zadvydas should be limited to the facts of that case, where removal is delayed because no country can be found to accept the aliens ordered removed. Nothing in Zadvydas suggests that it should be so narrowly construed. Indeed, there is language indicating that the Court intended Zadvydas to be applied in all cases involving aliens covered by the statute. For example, in setting forth the standard, the Court expressly relied on the fact that the statute had broad applicability, covering both convicted criminals and ordinary visa violators, such as plaintiffs in this case. Zadvydas, 533 U.S. at 697. The dissent acknowledged the decision’s application to all categories of aliens covered by the statute when it attacked the decision on the ground that it would produce skewed results, making it easier for the government to detain ordinary visa violators than convicted criminals. Id. at 716 (Kennedy, J., dissenting) (“aliens who violate mere tourist visa requirements can in the typical case be held pending deportation on grounds that a minor offender is more likely to be removed”). I am mindful that “Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority’s ruling .” United States v. Travers, 514 F.2d 1171, 1174 (2d Cir.1974). Justice Kennedy’s complaint in Zadvydas, however, was not that aliens like the plaintiffs here could be lawfully detained for at least six months, but that violent aliens might not be detained for even longer periods. In any event, the Second Circuit has rejected the plaintiffs’ reading of Zadvydas, applying its reasonable foreseeability test where there was no allegation that the government was likely to have difficulty securing another nation’s acceptance of the alien. See Wang, 320 F.3d at 146.
*39 Under Zadvydas, aliens’ due process rights are “not jeopardized by [their] continued detention as long as [their] removal remains reasonably foreseeable.” Id. Four out of the seven plaintiffs in this case, Turkmen, Saffi, Jaffri, and Sachdeva, were removed within six months of their final removal or voluntary departure orders, and therefore their detention was presumptively reasonable under Zadvydas.35 While three plaintiffs in this case, Yasser, Hany and Baloch, were detained beyond the six-month period, the complaint does not allege that during the period of their detention there was no significant likelihood of removal in the reasonably foreseeable future.36 See Zadvydas, 533 U.S. at 701; see, e.g., Wang, 320 F.3d at 146 (holding that petitioner’s due process rights were not violated because his removal was

reasonably foreseeable).

35

Turkmen was detained for three months and 25 days

from the date he accepted a voluntary departure order.

Saffi was detained for four months and 18 days after he

was ordered removed. Jaffri was detained three months

and 12 days after he was ordered removed. Sachdeva

was detained for three months and 17 days after he was

ordered removed.

36

Yasser was detained for six months and 16 days after

he was ordered removed. Hany was detained six

months and nine days after he was ordered removed.

Baloch was detained for six months and 27 days after

he was ordered removed.

What the complaint does allege is that the plaintiffs were detained “longer than necessary” to effectuate their removal and that the government intentionally delayed their removal for reasons unrelated to any legitimate immigration purpose. However, such allegations do not state a due process claim, and plaintiffs have failed to cite any case law indicating otherwise. The recognition of such a claim would flood the courts with habeas petitions brought by aliens seeking to be removed as soon as they deemed it practicable (possibly only a matter of weeks after a removal order has issued, according to plaintiffs). Such claims would significantly encroach on the executive branch in a realm where it has particular expertise, since it would require courts to decide what is necessary to effectuate an alien’s removal and whether the government’s efforts to secure removal have been sufficient. Such extraordinary judicial oversight would be entirely at odds with the Court’s reasoning in Zadvydas, which demonstrated significant deference to the executive in recognizing the presumptively reasonable six-month period. See Zadvydas, 533 U.S. at 700-01.
Further, the plaintiffs’ claims assume that all that is required for the Attorney General to secure removal is a deportation order and an airplane. This assumption ignores legitimate foreign policy considerations and significant administrative burdens involved in enforcing immigration law in general, and, specifically, those concerns immediately following a terrorist attack perpetrated on the United States by noncitizens, some of whom had violated the terms of their visas at the time of the attack. See, e.g., 8 U.S.C. § 1231(b)(2)(C)(4) (Attorney General may disregard the alien’s designation of the country to which he would like to be removed if he decides that removing the alien to that country is prejudicial to the United States); see also Susan Sachs, Threats and Responses: Security, N.Y. Times, Sept. 9, 2002, at A16 (“[s]ome of the 19 hijackers in last year’s terror attacks had violated the terms of or overstayed
28

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

visas”).
*40 With respect to plaintiffs’ allegations that they were detained in the absence of individualized determinations in a procedurally fair process that they posed a risk of flight or a danger to the community, these allegations also do not establish a due process violation. In Wang, a habeas petitioner argued that his continued post-removal period detention without a bail hearing violated his substantive due process rights. Wang, 320 F.3d at 146. The Second Circuit squarely rejected this argument and, relying on Zadvydas, held that Wang’s due process rights were not in jeopardy as long as his removal remained reasonably foreseeable.37 Id. (“Wang asks us to hold that his continued detention without a bail hearing violates his substantive due process rights. But, pursuant to Zadvydas, Wang’s due process rights are not jeopardized by his continued detention as long as his removal remains reasonably foreseeable.”).

37

There is no allegation that the INS failed to provide

plaintiffs with custody reviews pursuant to the

procedures set forth in 8 C.F.R. § 241.4. Nothing in

Zadvydas or Wang suggests that aliens subject to

removal orders require any individualized

determination beyond the administrative custody

review proceedings, where the alien bears the burden of

proving that he is not dangerous or a risk of flight. See

Zadvydas, 533 U.S. at 692 (citing 8 C.F .R. §

241.4(d)(1)).

In any event, even if plaintiffs’ allegations stated a due process violation, the defendants would be entitled to qualified immunity. It can hardly be said, in light of the authorities discussed above, that the plaintiffs had a clearly established due process right to immediate or prompt removal at the time they were held in detention.
In addition to claiming that the length of their detention violated their due process rights, plaintiffs claim that the reason for their detention violated their Fourth Amendment right to be free from unreasonable seizures. I note at the outset that there is significant authority rejecting plaintiffs’ assertion that the Fourth Amendment applies to post-arrest detention. See, e.g., Riley v. Dorton, 115 F.3d 1159, 1162-64 (4th Cir.1997) (en banc) (rejecting “continuing seizure” theory under the Fourth Amendment); Valencia v. Wiggins, 981 F.2d 1440, 1444 (5th Cir.1993) (“As the Fourth Amendment protects against unreasonable ‘seizures,’ it seems primarily directed at the initial act of restraining an individual’s liberty”) (emphasis in original). Plaintiffs themselves concede that the Supreme Court has “left open” the question whether the Fourth Amendment applies to post-arrest detention, and they cite no Second Circuit precedent resolving this issue in their favor. Therefore, at the very least, the Fourth Amendment’s application in this

context is not clearly established, and, thus, defendants are entitled to qualified immunity.
Even assuming, however, that the Fourth Amendment applies to post-arrest detention, I conclude that plaintiffs fail to state a Fourth Amendment claim. Plaintiffs allege that they were held for criminal investigation without probable cause. This claim is entirely dependent upon plaintiffs’ contention that their detention was not otherwise authorized. Although plaintiffs concede that they were lawfully arrested for violating the terms of their admission to the United States, they argue that at some point (apparently a short time after they were ordered removed), the government could have effectuated their removal. And after that, plaintiffs argue, their continued detention no longer served any legitimate immigration law purpose. Since the “real” reason for their continued detention was to investigate suspicions that they were involved in terrorist activity, plaintiffs claim that the Fourth Amendment was violated because there was no probable cause.
*41 As explained above, plaintiffs’ entire detention was authorized by the post-removal period detention statute. That the government may have been motivated by a desire to keep terrorism suspects in jail pending further investigation does not alter the legality of the detention. It is well-established that the government’s “[s]ubjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional.” Whren v. United States, 517 U.S. 806, 813 (1996) (internal quotation marks omitted). Accordingly, even accepting as true plaintiffs’ allegations regarding defendants’ motives, the detention of plaintiffs was authorized pursuant to the post-removal detention statute and thus did not violate the Fourth Amendment.
9. Equal Protection Claim (Claim 5) Plaintiffs assert that defendants violated their equal protection rights by selecting them based on their race, religion and/or national origin for (1) detention beyond the period necessary to secure their and removal and (2) harsh treatment. With respect to harsh treatment, the motion to dismiss is denied for the reasons stated in Elmaghraby v. Ashcroft, 2005 WL 2375202 at *29 (“[P]laintiffs allege that they were confined under significantly harsher conditions than other pretrial detainees because of their race and religion, and not because of any evidence that they were involved in terrorist activity. I cannot conclude as a matter of law that there is no set of facts consistent with plaintiffs’ allegations that could entitle them to relief.”). I am not persuaded that the government’s plenary authority in the immigration context provides any basis for affording the defendants extraordinary deference regarding the plaintiffs’ conditions of confinement, and I therefore see no reason to distinguish this aspect of the plaintiffs’ equal
29

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
protection claim from the similar claim of the Elmaghraby plaintiffs.
With respect to the length of the plaintiffs’ detention, however, as I have explained above, the government was authorized under the immigration laws to detain the plaintiffs for as long as it did. In light of that conclusion, the plaintiffs’ remaining equal protection claim is that they were selected from among other visa violators for especially (but not illegally) lengthy detention based upon impermissible motivations. That is closely akin to a selective enforcement claim, which, in the immigration context, is generally not cognizable. In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court explained as follows:
What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat-or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals-and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.
*42 525 U.S. 471, 490-91 (1999). In establishing that “general rule” the Court did not “rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.” Id. at 491. Although “outrageous” is not a self-defining term, a few things the Court did not consider to be outrageous are apparent: “deeming nationals of a particular country a special threat ... [and] antagoniz[ing] a particular foreign country by focusing [enforcement efforts] on that country’s nationals.” Id.
There is thus nothing outrageous about the plaintiffs’ claim of national-origin discrimination in this context; the executive is free to single out “nationals of a particular country” and “focus[ ]” enforcement efforts on them. Id. This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious. Yet the Supreme Court has repeatedly held that the political branches, “[i]n the exercise of [their] broad power over naturalization and

immigration ... regularly make[ ] rules that would be unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); compare, e.g., Fiallo v. Bell, 430 U.S. 787 (1977) (upholding law denying illegitimate child fathered by American citizen the immigration privilege afforded to a legitimate child), with Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down housing ordinance limiting occupancy of a dwelling to a single family and defining a single family to preclude grandmother from having grandson live with her). Indeed, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952). “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 589.
Similarly, I do not believe the plaintiffs’ claims of selective enforcement on the basis of their race and religion provide any cause to depart from the general rule laid out in AADC. In the investigation into the September 11 attacks, the government learned that the attacks had been carried out at the direction of Osama bin Laden, leader of al Queda, a fundamentalist Islamist group; some of the hijackers were in violation of the terms of their visas at the time of the attacks. In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion. Investigating these aliens’ backgrounds prolonged their detention, delaying the date when they would be removed.
*43 As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise. See AADC, 525 U.S. at 490-91; Matthews, 426 U.S. at 81-82 (“The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.”); see also Zadvydas, 533 U.S. at 696 (stating that “terrorism” might warrant “special arguments” for “heightened deference to the judgments of the political branches with respect to matters of national security”). I note, however, that the extraordinary circumstances of September 11 are by no means a prerequisite to the deference owed the political branches in this area. See Fiallo, 430 U.S. at 796 (rejecting attempt to cabin “prior immigration cases as involving foreign policy matters and congressional choices to exclude or expel groups of aliens that were ... perceived to pose a grave threat to the
30

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
national security”). Such national emergencies are not cause to relax the rights guaranteed in our Constitution. Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions; “nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [courts] to equate [their] political judgment with that of” the executive or the Congress. Harisiades, 342 U.S. at 590.
In any event, if an equal protection violation did occur, it certainly was not clearly established in light of the above precedent, and therefore the defendants are entitled to qualified immunity. To the extent claim 5 is based on the length of the plaintiffs’ detention, it is dismissed.

10. Confiscation of Personal Property Claim (Claim 8) Plaintiffs allege that defendants adopted, promulgated, and implemented a policy of depriving them of property without due process of law. TAC ¶¶ 322-26. Specifically, plaintiffs allege that personal items, including personal identification and cash, were confiscated when they were taken into custody and that many of these items have not been returned to them. Relying on Hudson v. Palmer, 468 U.S. 517 (1984), defendants argue that this claim is not actionable under Bivens because the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), provides an adequate postdeprivation remedy.38 In Hudson, the Supreme Court held “that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” 468 U.S. at 533. As the Second Circuit has explained:

38

The FTCA gives federal district courts “exclusive

jurisdiction of civil actions on claims against the United

States, for money damages ... for injury or loss of

property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee

of the government....” Under the FTCA, the United

States is vicariously liable for the acts of its employees

“in the same manner and to the same extent as a

private” employer under state law. 28 U.S.C. § 2674.

The Second Circuit has construed those provisions to

authorize recovery for conversion of property and for

negligent damage to property. Johnson v. Smithsonian

Inst., 189 F.3d 180, 189 (2d Cir.1999).

*44 When reviewing alleged procedural due process violations, the Supreme Court has distinguished

between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees. In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy. When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process. Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996) (citing Palmer, 468 U.S. at 531-33; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). Accordingly, an adequate postdeprivation remedy is only a defense to a due process claim where the deprivation is “random and unauthorized.” Alexandre v. Cortes, 140 F.3d 406, 411 (2d Cir.1998) (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir.1990)).39 The rationale for distinguishing between random (and unauthorized) deprivations and those resulting from established policy is that, in the former instance, the government “cannot predict when the loss will occur.... [Therefore] it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Palmer, 468 U.S. at 532 (internal quotation marks and citations omitted).

39

Although the Supreme Court cases articulating and

applying this doctrine address violations of Fourteenth

Amendment due process, federal courts have also

applied it in the context of a Fifth Amendment due

process claim. See, e.g., Rodriguez-Mora v. Baker, 792

F.2d 1524, 1526 (11th Cir.1986); Del Raine v.

Williford, 32 F.3d 1024, 1046 (7th Cir.1994) (citing

Orebaugh v.. Caspari, 910 F.2d 526 (8th Cir.1990)).

Plaintiffs allege that they were deprived of their property pursuant to an established policy or practice, and thus their claims are not within the scope of Hudson v. Palmer. In support of that claim, they allege that defendants refused the requests of Saffi, Jaffri, Baloch, and Sachdeva that their identification documents be returned prior to their removal. As of the filing of the TAC, only Sachdeva’s had been returned, despite the others’ repeated requests. The plaintiffs argue that the defendants had a motive to create such a policy, in that “[d]eprivations of identity documents might facilitate the continuing investigation, and limit Plaintiffs’ mobility in their home countries.” Pl. Br. 77. These allegations of a pattern are sufficient to withstand the defendants’ motion. If, after the plaintiffs are given the opportunity to take discovery, they can adduce evidence to support their allegations, then the existence of a postdeprivation remedy will not constitute a defense to their claim.40
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

40

Defendants argue that plaintiffs have not alleged the

uniform confiscation of property that might be

indicative of a controlling policy or practice. I disagree.

While it is true that the specific factual allegations of a

policy or practice involve only four of the seven named

plaintiffs, they sufficiently allege an established

government procedure. Moreover, the defendants seek

a blanket dismissal of this claim, not just a dismissal as

to the plaintiffs who do not specifically allege the

deprivation. Accordingly, I do not address this claim

with respect to each individual plaintiff.

Despite the defendants’ assertion of qualified immunity from liability on this claim, they do not (and could not) argue that it was not clearly established that the alleged conduct constituted a constitutional violation. Rather, in essence, they argue that the purpose of the doctrine of qualified immunity would be undermined by allowing such unsupported claims to stand. But support for such allegations is not the issue on a motion to dismiss. And deficiency on that score will be addressed after discovery, as will defendants’ claim that it was objectively reasonable for them to believe their acts did not violate plaintiffs’ rights. The facts are not sufficiently developed at this time for me to conclude as a matter of law that there is no set of facts on which plaintiffs will be entitled to relief.

11. Delay in Serving Charging Documents Claim (Claim 17) *45 Ebrahim, Ibrahim, Sachdeva, and Jaffri claim that defendants delayed the issuance and service of Notices to Appear, impairing the plaintiffs’ ability to know the charges on which they were being held, to obtain legal counsel, and to seek release on bond, thereby violating their Fifth Amendment due process rights.41 A Notice to Appear informs an alien of the nature of the proceedings and the charges against him. 8 U.S.C. § 1229. At the time an alien is served with the document, he must also receive a current list of legal counsel who are available to represent aliens on a pro bono basis. Id. Plaintiffs allege that plaintiffs Ebrahim and Ibrahim were not served with Notices to Appear until sixteen days after their respective arrests; plaintiff Sachdeva was not served until seven days after his arrest; and plaintiff Jaffri was not served until five days after his arrest.42 Defendants argue that plaintiffs have failed to state a claim and, in any event, that defendants’ alleged conduct did not violate clearly established law, and therefore they are entitled to qualified immunity.

41

While this claim is not asserted by all named plaintiffs,

it is brought on behalf of the class.

42

Although it may be that other members of the putative

class were detained longer before being served with a

Notice to Appear, no class has been certified.

Therefore, in order for plaintiffs’ complaint to survive

this motion to dismiss, the allegations of the named

plaintiffs must state a claim for relief.

I conclude that the plaintiffs have failed to state a claim. They have cited no statutory or other legal authority prescribing when, after an alien has been arrested without a warrant, he must be served with a Notice to Appear. The regulations provide that “a determination will be made within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time ... whether a notice to appear ... will be issued.” 8 C.F.R. § 287.3(d) (emphasis added). I have little trouble concluding that the events of September 11, 2001 qualify as extraordinary circumstances and, in light of those events, the several days it took plaintiffs to be served with Notices to Appear was a reasonable period of time.
Although plaintiffs are correct in their assertion that the defendants’ compliance with 8 C.F.R. § 287.3(d) does not necessarily render their conduct consistent with the Constitution, they fail to cite any controlling authority in support of their claim that a delay of as little as five days in serving an INS charging document constitutes a substantive due process violation. Urging me to look to the criminal context, plaintiffs rely on County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), which addresses the length of permissible delay between a warrantless arrest and an appearance before a judicial officer for a probable cause determination. The Supreme Court held that, absent a showing by the government of “the existence of a bona fide emergency or other extraordinary circumstance,” id. at 57, a probable cause determination must be provided within 48 hours, and sooner if the determination was delayed unreasonably, such as for the purpose of gathering additional evidence to support the arrest. Id. at 56. Plaintiffs argue that County of Riverside supports their argument that they have stated a claim for both Fourth and Fifth Amendment violations, though their claim as pleaded is only for a violation of their due process rights. I disagree.
*46 First, I am not persuaded that the same rule that applies in the context of a warrantless arrest should apply here, and plaintiffs cite no authority suggesting that it does. As stated earlier in addressing plaintiffs’ length of detention claims, the protections of the Due Process Clause extend to aliens. Zadvydas, 533 U.S. at 693 (citing Plyler v. Doe, 457 U.S. at 210). There is no doubt that at some point after arrest, an alien’s due process rights would be violated if he were detained without being
32

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

served a Notice to Appear. But I do not believe that this case requires me to draw that line, merely to find that it was not crossed on these facts. Moreover, even assuming that County of Riverside controlled here, the exception it carved out for extraordinary circumstances would be applicable.43 See OIG Report at 31-34 (delays in serving Notices to Appear caused directly or indirectly by the September 11 attacks). In any event, the application of County of Riverside’ s 48-hour rule to this context is certainly not clearly established, and therefore defendants are entitled to qualified immunity.

43

Plaintiffs argue that the County of Riverside exception

should not apply here because the defendants delayed

serving Notices to Appear in order to investigate

plaintiffs for ties to terrorist organizations. Assuming

arguendo that the delays in service of the Notices to

Appear were for this purpose, I would still find that

plaintiffs had failed to state a claim for relief.

In addition to claiming a substantive due process violation in connection with the service of the notices to appear, plaintiffs bring a procedural due process claim. Determining whether such a violation has occurred requires a balancing of the governmental and private interests involved. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). In making this determination, the Supreme Court has stated that three factors are to be considered:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335. Although on some sets of facts-e.g., a length of detention prior to receiving notice greater than 16 days, the absence of extraordinary circumstances putting a strain on administrative resources-the risk of an erroneous deprivation may be high, and a detained alien’s interest in having notice of the charges against him may outweigh any government interest, those facts are not alleged here. In any event, plaintiffs, failing to cite any controlling legal precedent, do not show that it was clearly established that under these or similar circumstances, an alien’s procedural due process rights are violated if they are not served with a Notice to Appear within 16 days of their arrest and detention. Qualified immunity is thus

available to the defendants as a matter of law on this claim as well.
12. “Communications Blackout” Claims (Claims 21 and 22) Plaintiffs assert two claims relating to the alleged “communications blackout”: first, that it violated their right to freedom of speech, and second, that it violated their right of access to the courts and to legal counsel.
a. Freedom of Speech *47 Claim 21 alleges that the communications blackout violated the plaintiffs’ first amendment right to freedom of speech. Although the applicable legal standard for such claims brought by pretrial and immigration detainees is not quite clear, the Second Circuit has used, as a fallback position in the context of pretrial detainees, the standard articulated in Turner v. Safley, 482 U.S. 78 (1987), which ordinarily applies to claims of convicted prisoners. See Benjamin v. Fraser, 264 F.3d 175, 187 n. 10 (2d Cir.2001) (declining to articulate precise standard for pretrial detainees because “the policies and practices at issue here would not survive scrutiny under Turner, if in fact that standard is applicable.”). Under Turner, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89. Here, of course, penological must be taken to mean “relating to prison management” rather than “relating to punishment”; as discussed above, the government was not permitted to adopt the communications blackout for the purpose of punishing the plaintiffs. See Bell v. Wolfish, 441 U.S. at 538-39. But with that caveat, the Turner standard proves useful nonetheless in balancing the government’s legitimate interests against the plaintiffs’ asserted rights:
First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.... A second factor ... is whether there are alternative means of exercising the right that remain open to prison inmates.... A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.... Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
Turner, 482 U.S. at 89-91 (internal citations and quotation marks omitted).
The defendants argue that “concern over communications between possible terrorists and potential escape and attack plans” after September 11, 2001 justified the communications blackout as reasonable. The plaintiffs counter, however, that they have alleged (and it must be taken as true at this stage) that the defendants never had any basis to believe the plaintiffs had any connection to terrorists. Whatever the basis for suspecting the plaintiffs of terrorism may have been, it cannot be said at this stage that the defendants’ justifications require dismissal. For example, the plaintiffs allege that they were taped (video and audio) while speaking with their attorneys, and that as a result they could not speak candidly; that family members and lawyers who came to visit them at the MDC were falsely told they were not there; and that guards purposely dialed incorrect phone numbers when they tried to call their lawyers and their families. These allegations, if proved, may well constitute a violation of clearly established rights. And for the reasons I have explained above, in light of the OIG report, it is too early to tell whether the plaintiffs will be able to prove the personal involvement of the moving defendants. The motion to dismiss claim 21 is denied.
b. Access to the Courts *48 The plaintiffs in claim 22 allege that the communications blackout violated their right of access to the courts. As the defendants point out, however, the plaintiffs have not identified a particular affirmative claim for legal redress that the communications blackout is presently keeping them from asserting or any claim “that cannot now be tried (or tried with all material evidence).” Christopher v. Harbury, 536 U.S. 403, 413-14 (2002). The plaintiffs argue they need not identify any such claim because they assert a “direct” violation of the right of access to the courts, and that an underlying claim that was prejudiced must be asserted only where a “derivative” violation of the right of access has been alleged.
Although this direct/derivative distinction has some basis in Second Circuit case law, see Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir.2001) (holding that no additional prejudice need be alleged other than violation of the Sixth Amendment by a criminal defendant bringing access claim), in my view it does not survive Christopher v. Harbury, in which the Supreme Court explained:
Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate

and distinct right to seek judicial

relief for some wrong. However

unsettled the basis of the

constitutional right of access to

courts, our cases rest on the

recognition that the right is

ancillary to the underlying claim,

without which a plaintiff cannot

have suffered injury by being shut

out of court. We indicated as much

in our most recent case on denial of

access, Lewis v. Casey, [518 U.S.

343, 353 (1996) ], where we noted

that even in forward-looking

prisoner class actions to remove

roadblocks to future litigation, the

named plaintiff must identify a

“nonfrivolous,”

“arguable”

underlying claim, ... and we have

been given no reason to treat

backward-looking access claims

any differently in this respect. It

follows that the underlying cause of

action, whether anticipated or lost,

is an element that must be

described in the complaint, just as

much as allegations must describe

the official acts frustrating the

litigation. It follows, too, that when

the access claim (like this one)

looks backward, the complaint

must identify a remedy that may be

awarded as recompense but not

otherwise available in some suit

that may yet be brought. There is,

after all, no point in spending time

and money to establish the facts

constituting denial of access when

a plaintiff would end up just as well

off after litigating a simpler case

without the denial-of-access

element.

536 U.S. at 414-15 (internal citations and quotation marks omitted). This reasoning leaves little doubt that the plaintiffs are required to show some underlying claim or right that was prejudiced as a result of their having been denied access to the courts. The Second Circuit’s decision (though perhaps not its terminology) in Benjamin v. Fraser, is entirely consistent with this view; Benjamin points out another type of access case, brought by one who claims not that the violation has precluded the prosecution of a case, but the defense of one. Indeed, the court explained:
*49 [H]ere we are concerned with the Sixth Amendment right of a pretrial detainee, in a case brought against him by the state, to utilize counsel in
34

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
his defense. It is not clear to us what “actual injury” would even mean as applied to a pretrial detainee’s right to counsel. Lewis describes “actual injury” as a showing that a “non-frivolous legal claim had been frustrated or was being impeded” due to the action of prison officials.... The reason pretrial detainees need access to the courts and counsel is not to present claims to the courts, but to defend against the charges brought against them.
Benjamin, 264 F.3d at 186.
Thus, the rule of Christopher v. Harbury does not mean the plaintiffs are out of luck. As I noted above, immigration detainees have a right to counsel rooted in the Due Process Clause and the INA. See Michel v. INS, 206 F.3d 253, 258 (2d Cir.2000) (“Under the Due Process Clause and the Immigration and Nationality Act, an alien is entitled to representation of his own choice at his own expense.”) Reading the complaint liberally, it can be construed as alleging that the communications blackout prejudiced the plaintiffs in defending the immigration proceedings against them by limiting their access to counsel, a right they enjoyed independently under the Constitution and laws of the United States. The motion to dismiss claim 22 is denied.
C. International Law Claims (Claims 9-11) Plaintiffs seek damages personally against defendants for violations of customary international law. Specifically, they assert claims for violations of international law prohibitions against “arbitrary detention” and “cruel, inhuman or degrading treatment” pursuant to the Alien Tort Claims Act (“ATCA”), 28 U.S .C. § 1350, and violations of the consular notification requirement under the Vienna Convention on Consular Relations, April 24, 1963, T .I.A.S. No. 6820, 21 U.S.T. 77, Art. 36.
Defendants argue that these claims fall within the scope of the Liability Reform Act, 28 U.S.C. § 2679. The Liability Reform Act provides that for civil actions based on the wrongful conduct of federal employees acting within the scope of their employment, the only remedy is an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, against the government itself. 28 U.S.C. § 2679(b)(1). There are two exceptions to this exclusive remedy provision. It does not apply to actions against an employee of the government “which is brought for a violation of the Constitution of the United States, or ... for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” Id. at § 2679(b)(2)(A), (B). If an action does not fall within these two exceptions, the government employee defendants enjoy absolute immunity because the lawsuit may proceed only against the United States pursuant to the requirements of the FTCA. See United States v. Smith,

499 U.S. 160, 163 (1991) (“The Liability Reform Act establishes ... absolute immunity for Government employees....”). In order to institute an action under the FTCA, a claimant is required to exhaust his administrative remedies. 28 U.S.C. § 2675; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (1994).
*50 Plaintiffs’ claims do not fall within the scope of either exception to the exclusive remedy provision. These claims are plainly not brought for violations of the United States Constitution. Although it is less clear, I also conclude that these claims do not allege violations of statutory law. Plaintiffs argue that their international law claims fall within this exception because they are asserted pursuant to the ATCA. The ATCA provides that “th[e] district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States....” 28 U.S.C. § 1350. This statute is analogous to 42 U.S.C. § 1983, which creates a cause of action against state actors for violations of federal rights committed under the color of state law. Section 1983 and the ATCA do “not create substantive rights, but simply provide[ ] the procedural mechanism[s] through which a plaintiff may bring ... suit for violation[s] of ... federal right[s]” and the law of nations or a treaty of the United States. Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756 (2d Cir.1998) (discussing 42 U.S.C. § 1983), cert. denied, 526 U.S. 1145 (1999). Accordingly, “one cannot go into court and claim ‘a violation of § 1983” ’ or the ATCA. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979) (discussing § 1983 actions). Therefore, the exception provided for statutory violations is inapplicable here. See Smith, 499 U.S. at 174 (holding that there could be no violation of the Gonzalez Act because it imposed no duties or obligations, and therefore, it did not fall within any express exception under the Liability Reform Act).
Because plaintiffs’ international law claims are subject to the exclusive remedy provision of the Liability Reform Act, the United States is substituted for the individual government defendants, and therefore the international claims must proceed under the FTCA if at all. The plaintiffs’ international law claims, however, are not “cognizable” under 28 U.S.C. § 1346(b): “[T]o be actionable under the [FTCA], a claim must allege ... that the United States would be liable to the claimant ... in accordance with the law of the place where the act or omission occurred,” and “the ‘law of the place’ means the law of the State-the source of substantive liability under the FTCA.” F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994) (internal quotation marks omitted). Because claims 9, 10, and 11 arise instead under international law, they must be dismissed for lack of jurisdiction, as the United States has not waived its sovereign immunity with respect to these claims.
35

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
D. FTCA Claims The defendants argue that several of the plaintiffs’ FTCA claims against the United States should be dismissed.
1. False Imprisonment (Claim 24) Claim 24 alleges that by “detaining the Plaintiffs ... months longer than necessary to secure their removal or voluntary departure from the United States without probable cause to suspect them of any crime, the MDC defendants ... intentionally, without consent or privilege, completely confined [the] Plaintiffs so as to constitute false imprisonment.” TAC ¶ 415. Under New York law, in order to make out a claim of false imprisonment, a plaintiff must show that the detention was “not otherwise privileged.” Broughton v. State, 37 N.Y.2d 451, 456 (1975). For the reasons explained above in dismissing the plaintiffs’ constitutional length-of-detention claims, the plaintiffs detention was privileged under the post-removal-period detention statute, 8 U.S.C. § 1231(a)(6). Each plaintiff was properly found removable from the United States, and the BOP officials who detained the plaintiffs were acting pursuant to facially valid INS commitment papers. Murray v. Goord, 1 N.Y.3d 29, 32 (2003) (“[P]rison officials are conclusively bound by the contents of commitment papers accompanying a prisoner.”). Accordingly, claim 24 is dismissed.
2. Negligent Delay in Clearing Plaintiffs (Claim 25) *51 Claim 25 alleges that “[i]n allowing the clearance investigations to linger for months ... due to failure to timely act and follow up on leads, misplaced files, poor communication, [and] disorganization ... Defendants ... breached their duty of swift dispatch toward Plaintiffs .... [so as to] constitute negligence under the laws of [New York and New Jersey].” TAC ¶ 419. As I have explained above, however, the government had no such duty of dispatch in removing the plaintiffs within the six-month presumptively reasonable period established by Zadvydas. Under 8 U.S.C. § 1231(a)(2) & (6), the Attorney General had the authority to detain the plaintiffs as ordinary visa violators pending their removal. See Zadvydas, 533 U.S. at 691 (explaining that § 1231(a)(6), by reference to § 1227(a)(1)(C), “does not apply narrowly to a small segment of particularly dangerous individuals ... [like] suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations.”). I cannot ignore this objectively sufficient basis for the plaintiffs’ detention and treat the plaintiffs as if they were actually being detained on the basis of the FBI’s authority to investigate crimes. See Whren v. United States, 517 U.S. 806, 813 (1996)

(“Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional.”).
The full length of the plaintiffs’ detention was thus authorized regardless of whether they were suspected of or found to be involved in terrorist activity. Apart from their detention, however, the plaintiffs offer no hint as to the source of the duty of dispatch they assert; they do not, for example, argue that law enforcement officials owe ordinary criminal suspects a duty swiftly to either charge them or clear them of wrongdoing. Accordingly, because claim 25 fails to allege a legal duty owed to the plaintiffs, it must be dismissed. See, e.g., Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 340 (1928) ( “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.”); 28 U.S.C. § 1346(b) (government liable under FTCA only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”).
3. Conversion of Property (Claim 30) Claim 30 alleges that “in refusing to return the possessions of Plaintiffs ... Defendants intentionally deprived them completely and forever of all rights and use of those possessions so as to constitute the tort of conversion....” TAC ¶ 442. The United States argues that because Claim 30 “arises out of the detention of goods by law enforcement officers, [it is] barred by 28 U.S.C. § 2680(c).” Def. Br. 90. That subsection provides, with certain exceptions not at issue here, that the United States retains sovereign immunity against any “claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2680(c). The question the parties dispute is whether “any other law enforcement officer” means, as the United States contends, any law enforcement officer in the course of any kind of duty, or rather, as the plaintiffs insist, it means merely other law enforcement officers engaged in activities similar in kind to those of an officer of customs or excise. The question is not new; in fact, nearly all the courts of appeals have ruled on it, but they are quite divided. Compare Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 (9th Cir.2003) (reading § 2680(c) “expansively to include federal law enforcement officers beyond those who assess taxes or collect duties”); with Ortloff v. United States, 335 F .3d 652, 657-58 (7th Cir.2003).
*52 The Second Circuit expressly reserved the question “whether the exemption would apply to searches by law enforcement officers with no relationship to the customs or excise functions” in Formula One Motors, Ltd. v. United States, 777 F.2d 822, 823-24 (2d Cir.1985). Judge Oakes, however, wrote separately to express the view that
36

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
“where no nexus exists between customs activity and the act complained of, [he] would hold that § 2680(c) does not bar recovery.” Id. at 825. As the D.C. Circuit noted in Buzuaye v.. United States, 83 F.3d 482, 484 (1996), “The Second ... Circuit[ ] ha[s] [thus] suggested-without deciding-that [it] would reach the same conclusion” as did the D.C. Circuit: “that the words ‘any other law-enforcement officer’ should be read to mean law-enforcement officers acting in a tax or customs capacity.” I agree with this assessment, and conclude that the Sixth, Seventh, and D.C. Circuits, though outnumbered by the circuits holding to the contrary, have the better of the argument. See Kurinksy United States, 33 F.3d 594, 597 (6th Cir.1994); Ortloff, 335 F.3d at 657-58 (7th Cir.); Buzuaye, 83 F.3d at 484 (D.C.Cir).
The debate between the circuits (and the parties here) pits several canons of statutory interpretation against each other. On the government’s side is the canon of construing a term that appears in separate places in a statute to mean the same thing. In that regard, the government points out that § 2680(h) says that “ ‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law,” and argues that the same broad definition should apply in construing § 2680(c). The government fails to point out, however, that the definition in § 2680(h) expressly applies only “[f]or the purpose of this subsection,” meaning § 2680(h). In my view, the negative implication of that disclaimer-that the definition should not be transported to other subsections of the statute-is compelling. Had the Congress meant “for the purpose of this section,” instead of “subsection,” it likely would have said as much.
The government also resorts to the canon that “a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” See Lane v. Pena, 518 U.S. 187, 192 (1996). In the context of construing § 2680, however, the Supreme Court has specifically called this approach “unhelpful.” Kosak v. United States, 465 U.S. 848, 853 n. 9 (1984). Instead, the Court advised in Kosak that “the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. § 2680 is to identify those circumstances which are within the words and reason of the exception-no less and no more.” Id. (internal quotation marks omitted).
That advice leads quite naturally to the two related canons advanced by the plaintiffs: ejusdem generis, that “a general term should be understood in light of the specific terms that surround it,” Hughey v. United States, 495 U.S. 411, 419 (1990); and noscitur a sociis, that “a general term is interpreted within the context of the accompanying words ‘to avoid the giving of unintended breadth to the Acts of Congress.” ’ Kurinsky, 33 F.3d at

597 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). The D.C. Circuit has explained the former principle and its application to this setting as follows:
*53 The principle of ejusdem generis-or “of the same kind, class or nature”-suggests that a general term should be read in light of the more specific terms preceding it. Thus, if a statute lists fishing rods, nets, hooks, bobbers, sinkers and other equipment ... [then] “other equipment” might mean plastic worms and fishing line, but not snow shovels or baseball bats. In the clause “any officer of customs or excise or any other law-enforcement officer,” the words “any other law-enforcement officer” might mean other officers involved in customs and excise work, but not officers involved in unrelated duties. Otherwise, “any officer of customs or excise” would be surplusage, subsumed by the more general “any other law-enforcement officer.”
Buzuaye, 83 F.3d at 484 (internal citations and quotation marks omitted).
I find this reasoning persuasive, and accordingly conclude that because the officers in question in this case were not “involved in customs and excise work,” the United States is not shielded from liability under the detention of goods exception. The motion to dismiss claim 30 is denied.
4. Deprivation of Medical Treatment (Claim 26) The government argues that plaintiffs Baloch, Saffi, and A. Ibrahim failed to give the BOP a fair opportunity to address their claims for deprivation of medical treatment, and therefore those claims must be dismissed for lack of exhaustion. See 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing....”); 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”). The Second Circuit has explained that “a Notice of Claim filed pursuant to the FTCA must provide enough information to permit the agency to conduct an investigation and to estimate the claim’s worth.” Romulus v. United States, 160 F.3d 131, 132 (2d Cir.1998). Although a plaintiff is not required to advance specific legal theories in his administrative claims, he “cannot present one claim to the agency and then maintain a suit on a different set of facts.” Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir.1991) (internal quotation marks omitted).
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
As the United States points out, “from a review of the administrative claims presented, none of these three Plaintiffs so much as alluded to having requested [and being denied] medical treatment....” Def. Br. 96. The plaintiffs do not dispute that they failed to mention medical treatment in their administrative complaints, but argue that “[t]his elevates form over substance,” explaining as follows:
*54 Each claim specifically alleges physical injury to the Plaintiffs by Defendants. In investigating claims of physical injury, the government would necessarily review Plaintiffs’ medical records while in detention. Those medical records in turn are relevant to Plaintiffs’ claims concerning medical treatment. Accordingly, Plaintiffs’ administrative claims are adequate to exhaust their claims with respect to their medical treatment....
Pl. Br. 89-90. This reasoning falls apart merely by repeating it: claiming an injury is not at all the same thing as claiming a deprivation of adequate medical treatment; an injury does not imply a wrongful denial of medical treatment. See Palay v. United States, 349 F.3d 418, 425 (7th Cir.2003) (affirming dismissal of claim of inadequate medical care for failure to exhaust where “[a]lthough [plaintiff] described the injuries he sustained and the physical effects-including the recurrent seizures-that he suffered, he stated no facts suggesting that the prison medical staff had treated him inappropriately.”). Accordingly, claim 26 is dismissed as to plaintiffs Baloch, Saffi, and A. Ibrahim for failure to exhaust administrative remedies.

CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss is denied in part and granted in part.
Claims 4 (self-incrimination) and 6 (speedy trial) have been withdrawn.
Claims 9-11 (international law) and 18-19 (bond) are dismissed for lack of jurisdiction.
Claims 1-2 (length of detention), 17 (delay in serving charging document), 24 (false imprisonment), and 25 (negligent delay in clearance investigations) are dismissed for failure to state a claim. Claim 3 is dismissed as to the Passaic plaintiffs for failure to state a claim.
Claim 26 (inadequate medical treatment) is dismissed as to plaintiffs Baloch, Saffi, and A. Ibrahim for failure to exhaust administrative remedies.
The motion to dismiss is denied as to claims 3 and 23 (conditions of confinement, MDC plaintiffs only), 7 (interference with religious practices), 8 (taking of property), 20 (assignment to the ADMAX SHU, procedural due process), 21-22 (communications blackout), and 30 (conversion).
The motion to dismiss claim 5 (equal protection) is granted in part and denied in part.
So Ordered.
	
  

38

 </s> Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

2006 WL 2224492 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Ibrahim TURKMEN, et al., Plaintiffs, v.
John ASHCROFT, Attorney General of the United States, et al., Defendants.
No. 02-CIV-2307(JG). | Aug. 2, 2006.
Attorneys and Law Firms
Rachel Anne Meeropol, Jennifer M. Green, Matthew D. Strugar, Shayana Devendra Kadidal, New York, NY, Michael Winger, Stephanie Yu, Covington & Burling, New York, NY, for Plaintiffs.
Brian D. Miller, Dennis C. Barghaan, Office of the United States Attorney, Alexandria, VA, Ernesto H. Molina, U.S. Department of Justice, Washington, DC, Larry L. Gregg, Richard W. Sponseller, Office of the U.S. Attorney, Alexandria, VA, Craig Lawrence, U.S. Attorney’s Office, D.D.C., Ernesto H. Molina, U.S. Department of Justice, Washington, DC, Bassel Bakhos, Law Office of William Alden McDaniel, Jr., Baltimore, MD, Michael L. Martinez, Justin P. Murphy, Kyler Smart, Matthew Scarlato, Crowell & Moring LLP, Washington, DC, Allan Noel Taffet, Joshua C. Klein, Duval & Stachenfeld LLP, New York, NY, John B. Saville, Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, Debra L. Roth, Thomas M. Sullivan, Shaw, Bransford, Veileux & Roth, PC, Washington, DC, Barry M. Lasky, Lasky & Steinberg PC, Garden City, NY, David A Koenigsberg, Menz Bonner & Komar LLP, Nicholas Gregory Kaizer, Yvonne Shivers, Law Offices of Richard Ware Levitt, New York, NY, James G. Ryan, Cullen and Dykman Bleakley Platt, LLP, Garden City, NY, Labe M. Richman, Attorney at Law, New York, NY, Alan E. Wolin, Wolin & Wolin, Esqs., Jericho, NY, Kenneth C. Murphy, Laura L. Nagel, Simon & Partners LLP, New York, NY, James F. Matthews, Matthews & Matthews, Thomas Gerard Teresky, Huntington, NY, Richard Peter Caro, Richard P. Caro, J.D., Riverside, IL, Linda Cronin, Cronin & Byczek LLP, New Hyde Park, NY, Raymond P. Cash, Forest Hills, NY, E. Michael Rosenstock, Law Offices of E. Michael Rosenstock, P.C., Rockville Centre, NY, Stephen E. Handler, U.S. Department of Justice, Washington, DC, Mehrdad Kohanim, Law Office of Mehrdad Kohanim, Garden City, NY, for Defendants.
Michael McCabe, Greenacres, FL, pro se.
William Beck, Hazleton, PA, pro se.

Opinion
MEMORANDUM AND ORDER
GOLD, S., United States Magistrate Judge.
INTRODUCTION
*1 Defendant Stuart Pray has moved to compel plaintiffs Hany Ibrahim and Yasser Ebrahim (collectively referred to herein as plaintiffs) to produce certain documents and information in discovery. The documents sought are those reflecting (1) information from the Social Security Administration (“SSA”) indicating the basis upon which plaintiffs obtained social security numbers; (2) information from financial institutions reflecting plaintiffs’ finances and the financial transactions of plaintiff Ebrahim’s corporation, Net Media Production, Inc.; and (3) filings made by Ebrahim with the New York Department of State with respect to his corporation.
Plaintiffs allege in their complaint that they were subjected to excessive force while detained at the Metropolitan Detention Center (the “MDC”) in Brooklyn, New York. The complaint further alleges that Pray, a lieutenant at the MDC, supervised the offending officers and observed their use of excessive force but failed to intervene or otherwise prevent it. Third Am. Compl., ¶ 194 (Docket Entry 109). Plaintiffs made further allegations about Pray’s involvement in their abuse during discovery. See Pray Mem. of Law at 4-5.
In light of the allegations plaintiffs make against him, Pray plainly has an interest in challenging plaintiffs’ credibility. Pray contends that the information he seeks by way of this motion is discoverable because it may provide impeachment material for trial.
DISCUSSION
A. Social Security Records Plaintiffs acknowledged during discovery that they entered the United States on tourist visas and subsequently obtained social security numbers (“SSNs”). Pray argues that plaintiffs must have misrepresented their status or otherwise defrauded the SSA because individuals with tourist visas are not eligible to receive
1

Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
social security numbers. Pray Mem. of Law at 13-14, 53-54. Pray also points out that federal agents conducting a search of plaintiffs’ bedroom found several books describing how to obtain false identification documents. Pray Mem. of Law at 14.
Plaintiffs argue that the limitations on eligibility to obtain a social security number cited by Pray were not in place when they applied to SSA for their numbers. Plaintiffs further assert that they required social security numbers to open bank accounts. Pray responds that taxpayer identification numbers would have been sufficient to allow plaintiffs to open bank accounts.
For purposes of deciding this motion, it is not necessary to determine whether an individual with a tourist visa could have lawfully obtained a social security number at the time plaintiffs submitted their applications. Plaintiffs do not dispute Pray’s contention that literature about obtaining false identification documents was found in their home. Plaintiffs further acknowledge that, according to the system used by SSA for assigning numbers, the particular social security number obtained by plaintiff Ebrahim suggests that it was issued to a resident of a state other than the one where Ebrahim was living at the time. Pl.’s Letter dated June 12, 2006 at 3 n. 2. In light of these facts, I conclude that Pray has made a sufficient showing to justify disclosure of the statements plaintiffs made to SSA in the course of obtaining their social security numbers, but not of the numbers themselves.
*2 A recent decision of this court precluded discovery of social security numbers because of “the invasion of privacy which disclosure of ... SSNs threatens.” Entral Group International, LLC v. YHCL Vision Corp., ---F.Supp.2d ----, 2006 WL 1589844 at * 1 (E.D.N.Y. June 7, 2006). However, the concerns which troubled the court in Entral are not presented here. First, as discussed above, Pray’s application for discovery in this case is supported by “something more than [the] perfunctory analysis” held insufficient in Entral. Id. Second, the disclosure Pray seeks here is of the representations plaintiffs made to SSA, and not of plaintiffs’ SSNs. Indeed, it appears that Pray has already learned plaintiff Ibrahim’s social security number, and has become aware of at least some of the digits of plaintiff Ebrahim’s number as well. See Declaration of Richard P. Caro in Support of Defendant Stuart Pray’s Motion for Disclosure, ¶¶ 4-5. Moreover, there is no reason to disclose the remaining digits of Ebrahim’s number. Pray is entitled only to those documents that reflect the representations made by plaintiffs to obtain their social security numbers; the actual numbers issued by SSA to plaintiffs are irrelevant. I have previously ordered plaintiffs to obtain their files from SSA. See Minute Entry dated May 26, 2006. Plaintiffs’ counsel may remove any information other than the representations to SSA made by plaintiffs, including the numbers SSA assigned to plaintiffs, from

the files before producing them.
B. Financial Information Pray next seeks “financial information from financial institutions” where plaintiffs and Ebrahim’s corporation maintained accounts, and filings made by that corporation with the New York Department of State. In support of this prong of his motion, Pray argues as follows:
Both Brothers [plaintiffs] admitted that they were not authorized to work while in the United States, that they nevertheless worked in the United States and never paid any taxes on their income or filed tax returns. The income they acknowledged also appears to be insufficient in light of their admitted expenditures and life style. That they worked off the books and avoided paying taxes, further undermines their honesty and credibility.
Pray Mem. of Law at 27.
As demonstrated by the deposition testimony and other evidence set forth in Pray’s Memorandum of Law, plaintiffs have already acknowledged working “off the books” and failing to file tax returns. Accordingly, Pray does not require additional discovery to establish these facts.
Pray apparently seeks financial discovery to determine whether plaintiffs had sources of income they did not reveal during their depositions, or misrepresented their income or assets to obtain credit cards. These assumptions are highly speculative. Moreover, even if plaintiffs did conceal some sources of income or misrepresent facts in credit card applications, the relevance of these facts, particularly in light of plaintiffs’ admissions that they worked for cash and did not report their income, is limited. Finally, the financial discovery Pray seeks is highly intrusive; the account statements Pray seeks to obtain would reveal how plaintiffs chose to spend their money and hence much about their personal lives.
*3 The parties have provided the court with little information about the nature of the documents a corporation is required to file with the New York Department of State or whether those documents are publicly filed. This court’s decision does not, of course, prevent defendant Pray from obtaining documents maintained and made available to the public by agencies of the state or federal government.
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
CONCLUSION For these reasons stated above, defendant Pray’s motion to compel discovery is granted with respect to the representations plaintiffs made to SSA to obtain social

security numbers and denied in all other respects. SO ORDERED.
	
  

3

 </s> Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

2006 WL 2403432 Only the Westlaw citation is currently available.
NOT FOR PUBLICATION United States District Court,
E.D. New York.
Ibrahim TURKMEN, et al., Plaintiffs, v.
John ASHCROFT, et al., Defendants.
No. 02 CV 2307(JG). | Aug. 18, 2006.
Attorneys and Law Firms
Michael Winger, Stephanie Yu, Covington & Burling, Rachel Anne Meeropol, Jennifer M. Green, Matthew D. Strugar, Shayana Devendra Kadidal, New York, NY, for Plaintiffs.
Brian D. Miller, Dennis C. Barghaan, Larry L. Gregg, Richard W. Sponseller, Office of the United States Attorney, Civil Divison, Alexandria, VA, Michael L. Martinez, Justin P. Murphy, Kyler Smart, Matthew Scarlato, Crowell & Moring LLP, Debra L. Roth, Thomas M. Sullivan, Shaw, Bransford, Veileux & Roth, PC, Ernesto H. Molina, Stephen E. Handler, U.S. Department of Justice, Washington, DC, Bassel Bakhos, Law Office of William Alden McDaniel, Jr., Baltimore, MD, Allan Noel Taffet, Joshua C. Klein, Duval & Stachenfeld LLP, David A. Koenigsberg, Menz Bonner & Komar LLP, Nicholas Gregory Kaizer, Yvonne Shivers, Law Offices of Richard Ware Levitt, Labe M. Richman, Attorney at Law, Kenneth C. Murphy, Simon & Partners LLP, New York, NY, John B. Saville, Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, Barry M. Lasky, Lasky & Steinberg PC, James G. Ryan, Cullen and Dykman Bleakley Platt, LLP, Mehrdad Kohanim, Law Office of Mehrdad Kohanim, James J. Keefe, Garden City, NY, Alan E. Wolin, Wolin & Wolin, Esqs., Jericho, NY, James F. Matthews, Matthews & Matthews, Thomas Gerard Teresky, Huntington, NY, Richard Peter Caro, Riverside, IL, Linda Cronin, Cronin & Byczek LLP, New Hyde Park, NY, Raymond P. Cash, Forest Hills, NY, E. Michael Rosenstock, Law Offices of E. Michael Rosenstock, P.C., Rockville Centre, NY, for Defendants.
William Beck, Hazleton, PA, pro se.
Michael McCabe, Greenacres, FL, pro se.
Opinion
ORDER

JOHN GLEESON, United States District Judge.
*1 The plaintiffs have moved, pursuant to Fed.R.Civ.P. 54(b), for the entry of final judgment on claims 1, 2, 24, and 25, all of which allege that the government violated a duty owed the plaintiffs to detain them no longer than reasonably necessary to effect their removal. I dismissed those claims in a Memorandum and Order issued June 14, 2006. In the same order, I dismissed claim 5 in part, insofar as it alleged that the plaintiffs were selected from among illegal aliens on the basis of their race, religion, and national origin for lengthy detention pending deportation;1 the plaintiffs seek the entry of judgment on that claim as well.

1

I denied the defendants’ motion to dismiss claim 5 to

the extent it alleges the plaintiffs were selected on the

basis of their race, religion, and national origin for

harsh treatment during their confinement.

Rule 54(b) provides, in relevant part:
When more than one claim for relief is presented in an action, ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
My first task is to determine whether the dismissal of the claims upon which the plaintiffs seek the entry of judgment was “final,” that is, “an ultimate disposition of [the] individual claim[s] entered in the course of a multiple claims action.” Curtiss-Wright v. General Electric Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (internal quotation marks omitted). It was.
The remaining inquiry is whether there is any just reason for delay. Id. at 8. In light of the longstanding policy of the federal courts against piecemeal appeals, “[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims.” Id. Whether to “dispatch[ ]” certain finally adjudicated claims ahead of remaining claims in the case is a matter left to the district court’s “sound judicial discretion.” Id.
The defendants’ strongest argument opposing certification is that the plaintiffs have failed to show that the specific constitutional rights they assert were violated were clearly established as of the time of the defendants acted, and
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
thus the defendants will be entitled to qualified immunity even if my resolution of the plaintiffs’ constitutional claims is reversed. Though I agree with that argument, in my view there remains a strong public interest in having-sooner rather than later-an authoritative pronouncement as to whether the claimed constitutional rights exist. As the Supreme Court has explained, “if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043; see also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ( “A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.”) (internal quotation marks omitted).
*2 At the outset of my decision granting in part and denying in part the defendants’ motion to dismiss, I explained my view that the plaintiffs’ claims challenging the government’s basis for the detaining them longer than reasonably necessary to secure their removal are entirely

distinct, legally and factually, from their claims challenging the conditions of their confinement. For the same reasons, I conclude there is no just reason for delay in entering final judgment on claims 1, 2, 24, 25, and 5 (in part).2

2

As I explained in the Memorandum and Order of June

14, 2006, I view the allegations in claim 5 of the Third

Amended Complaint as constituting two separate

claims for relief, resting upon separate factual and legal

bases. The defendants’ argument that the combination

of the two claims in a single cause of action precludes

the entry of judgment on the dismissed claim seems to

me needlessly formalistic.

The plaintiffs’ motion for certification is granted. The Clerk is expressly directed to enter final judgment on claims 1, 2, 24, 25 and, to the extent it was dismissed by the Memorandum and Order of June 14, 2006, on claim 5.
So ordered.
	
  

2

 </s> Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

2006 WL 4483151 Only the Westlaw citation is currently available.
FOR ONLINE PUBLICATION ONLY United States District Court, E.D. New York.
Ibrahim TURKMEN, et al., Plaintiffs, v.
John ASHCROFT, et al., Defendants. Ehab Elmaghraby et al., Plaintiffs, v. John Ashcroft, et al., Defendants.
Nos. 02 CV 2307(JG), 04 CV 1809(JG). | Oct. 3, 2006.
Attorneys and Law Firms
Rachel Anne Meeropol, Jennifer M. Green, Kimberly Helene Zelnick, Michael Winger, Stephanie Yu, Covington & Burling, Matthew D. Strugar, Shayana Devendra Kadidal, Alexander A. Reinert, Koob & Magoolaghan, Haeyoung Yoon, Mamoni Bhattacharyya, Weil, Gotshal & Manges, LLP, New York, NY, for Plaintiffs.
Brian D. Miller, Dennis C. Barghaan, Larry L. Gregg, Richard W. Sponseller, Office of the U.S. Attorney, Alexandria, VA, Ernesto H. Molina, Stephen E. Handler, U.S. Department of Justice, Civil Division Office of Immigration Litigation, Craig Lawrence, U.S. Attorney’s Office, Michael L. Martinez, Justin P. Murphy, Kyler Smart, Matthew Scarlato, Crowell & Moring LLP, Debra L. Roth, Thomas M. Sullivan, Shaw, Bransford, Veileux & Roth, PC, Cary M. Feldman, Matthew S. Freedus, Robert A. Graham, Feldesman Tucker Leifer Fidell LLP, William E. Lawler, III, Cheryl A. Curtis, Nashiba D. Boyd, Vinson & Elkins, L.L.P., Washington, DC, Bassel Bakhos, Law Office of William Alden McDaniel, Jr., Baltimore, MD, Allan Noel Taffet, Joshua C. Klein, Duval & Stachenfeld LLP, David A. Koenigsberg, Melissa Kelly Driscoll, Menz Bonner & Komar LLP, Nicholas Gregory Kaizer, Yvonne Shivers, Law Offices of Richard Ware Levitt, Labe M. Richman, Attorney at Law, Kenneth C. Murphy, Simon & Partners LLP, Linda Marie Marino, Flemming, Zulack Williamson Zauderer, LLP, Raymond Granger, Leslie R. Caldwell, Jennifer W. Cohen, Morgan Lewis & Bockius, Anagha S. Apte, Lauren J. Resnick, Fernando A. Bohorquez, Baker & Hostetler LLP, New York, NY, John B. Saville, Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, Barry M. Lasky, Lasky & Steinberg PC, James G. Ryan, Cullen and Dykman, LLP, James J. Keefe, James J. Keefe PC, Mehrdad Kohanim, Law Office of Mehrdad Kohanim, Garden City, NY, Alan E. Wolin, Wolin & Wolin, Esqs.,

Jericho, NY, James F. Matthews, Matthews & Matthews, Thomas Gerard Teresky, Huntington, NY, Richard Peter Caro, Richard P. Caro, J.D., Riverside, IL, Linda Cronin, Cronin & Byczek LLP, New Hyde Park, NY, Raymond P. Cash, Forest Hills, NY, E. Michael Rosenstock, Law Offices of E. Michael Rosenstock, P.C., Rockville Centre, NY, Deborah Prisinzano Mikkelsen, Margot Giselle Bloom, Matthew J.D. Hogan, Morgan Lewis & Bockius LLP, Philadelphia, PA, for Defendants.
William Beck, Hazleton, PA, pro se.
Michael McCabe, Greenacres, FL, pro se.
Salvatore Lopresti, U.S. Customs House, Philadelphia, PA, pro se.
Opinion
ORDER
JOHN GLEESON, United States District Judge.
*1 In December of 2005, President Bush acknowledged that in the days after September 11, 2001, he authorized the National Security Agency (“NSA”) to intercept communications between persons inside the United States and others abroad without need of obtaining judicial approval pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. Chapter 36, so long as the government had reason to believe at least one party to such a communication had a “known link[ ] to al-Qaida and related terrorist organizations.” George W. Bush, Weekly Radio Address, December 17, 2005. As I have explained elsewhere, see Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y.2005); Turkmen v. Ashcroft, 2006 WL 1662663 (E.D.N.Y.2006), the plaintiffs in these two related actions were investigated for suspected terrorist ties before they were eventually deported or left the country. Now that they are abroad, they are fearful that under this “Terrorist Surveillance Program” (“TSP”), as it is called, the defendants are listening to their privileged communications with their lawyers in the United States. Accordingly, the plaintiffs sought discovery into the matter, which resulted in Magistrate Judge Steven Gold ordering the defendants to “state whether any member of the trial team .... or any individual who has been identified as a likely witness ... is aware of any monitoring or surveillance of communications between any of the plaintiffs and their attorneys in either of these related actions.” May 30, 2206 Order at 10.
The United States objects to that order on the ground that compliance with it will require the disclosure of classified information. Specifically, the United States argues that
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
although the basic structure of the TSP has been publicly revealed, the details of it-including the identities of the specific individuals being monitored-remain highly secret, and that if the government were required to deny any monitoring of the plaintiffs’ attorney-client communications in this case, then in other cases a refusal to make such a denial could be revealing of classified information, thus potentially damaging our national security. Moreover, the United States contends, it has already represented to the Court and to the plaintiffs that “no such intercepts will be used in the defense of the action,” and, as the plaintiffs themselves acknowledge, the “Department of Justice is ‘ordinarily scrupulous in its efforts to avoid intercepting an adversary’s attorney-client communications,’ and that, if such intercepts occur, the Department ‘insulates those with knowledge of the intercepts from involvement in any pending ... litigation.’ “ Reply Br. of United States at 2, quoting Br. of Pl. at 1.
As Judge Gold recognized, it is a cardinal rule of litigation that one side may not eavesdrop on the other’s privileged attorney-client communications. Litigation involving officials of the executive branch of government is no exception. I also agree with Judge Gold that, because of the unusual circumstances of this case, the plaintiffs’ request for further assurance that the rule has not been violated in this case is reasonable. First, the government has claimed the authority-indeed, the necessity-to monitor suspected terrorists abroad making electronic communications into the United States, and to do so without any judicial oversight. Second, the plaintiffs were detained in the United States for months based on the government’s suspicion that they were involved in terrorist activity, and although they were apparently “cleared” of terrorist ties before they were deported, many of them claim they were subjected to further investigation and lengthy interrogation upon arrival to their home countries, leading the plaintiffs to believe that the United States had advised foreign authorities to keep an eye on them. Thus, regardless whether the plaintiffs are actually involved in terrorist activity-they emphatically state that they are not-they have reason to believe that the government thinks they are, and that they are therefore being monitored when they call the United States.
*2 Of course, the plaintiffs’ need for assurance that their attorney-client confidences are not being (and have not been) overheard by persons associated with this case must be balanced against the United States’ interest in protecting classified information.1 The United States contends that to confirm that these particular plaintiffs have in fact been subjected to monitoring under the TSP would reveal classified information. See, e.g., Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (“There is a reasonable danger ... that confirmation or denial that a particular plaintiff’s communications have been acquired would disclose NSA capabilities and other valuable intelligence information to a sophisticated intelligence analyst.”)

(internal quotation marks omitted). Neither the fact that the plaintiffs’ have previously been “cleared” of terrorist involvement nor the fact that they have sued the government and government officials shields them from being monitored under the TSP or other surveillance programs.

1

I note that the legality of the TSP, which has been

challenged elsewhere, is irrelevant here.

I recognize that this case involves certain high-level officials (and former officials) whose duties may be at once so broad and so essential to the administration of our government that a conflict could arise between their obligations, on the one hand, to maintain circumspect ignorance of intercepted communications involving opposing litigants, and, on the other, to prevent future terrorists attacks. It also seems possible that such officials could have become aware of intercepted communications inadvertently, but that they have little or no recollection of the substance of those communications. However, the vast majority of the government officials involved in these cases-lawyers for the Civil Division of the Department of Justice and defendants and witnesses from the Bureau of Prisons with knowledge relevant to the plaintiffs’ remaining conditions-of-confinement claims-have no such duties and therefore no “need to know” whatever information the NSA may have gleaned from possible intercepts of the plaintiffs’ attorney-client communications. See Br. of United States at 18 (“Department of Justice regulations prevent the disclosure of classified information-even to persons who have the appropriate clearance-absent an actual need to know that classified information”), citing 28 C.F.R. § 17.45; see also Br. of United States at 20 n. 8 (“In light of the statutes, Executive Orders, and DOJ regulations limiting the sharing of classified information, no one could reasonably expect that the trial attorneys in these tort actions would be aware of the contents of classified intercepts....”). For the government to say that these latter officials, whose duties do not include the gathering or analysis of foreign intelligence, have not lately been involved in the gathering or analysis of foreign intelligence, is a revelation our national security can easily withstand. Moreover, it would not reveal classified information to say that the Department of Justice has been scrupulous in walling off the government officials who are involved in this litigation from exposure to TSP surveillance or knowledge derived from such surveillance. The Department has rightfully espoused that procedure as its policy, and the plaintiffs are entitled to the government’s representation that it has made good on it.
*3 Nevertheless, out of sensitivity to the government’s concern for protecting classified information, particularly with regard to officials at the highest level, and because
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
the plaintiffs have suggested that ex parte judicial oversight is a proper means of addressing their concerns, see Br. of Pl. at 12 (noting “the prospect of FISA monitoring, because it is subject to judicial review and minimization procedures, raises a far less substantial concern than monitoring pursuant to the TSP”), the defendants shall make the disclosures required by this Order ex parte for review in camera. Specifically, the defendants are directed to state, within 14 days of this order, whether any defendant, any likely witness or any member of the trial team (which includes all attorneys and support staff, and any supervisors or other individuals who are providing guidance or advice or exercising decision-making authority in connection with the defense of these actions) has knowledge (or had knowledge in the past) of the substance of any intercepted confidential communications between the plaintiffs and their attorneys.
In matters this important and sensitive, it seems to me prudent to take small steps. Accordingly, if in my judgment further action is warranted based on the information in the ex parte submission, the defendants will be given ex parte notice and an opportunity to be heard ex parte.

As soon as practicable after the completion of my review, including my review of any subsequent ex parte submission directed pursuant to the preceding paragraph, the plaintiffs will be given either (1) assurance by the Court that the United States’ representation that no TSP intercepts of the plaintiffs will be used in the defense of this action has been fully substantiated, or (2) notice of any remedial action that has been taken and an opportunity to be heard as to the necessity of further measures.
Finally, I am obviously not yet aware of the contents of the defendants’ ex parte submissions. However, depending on what those contents are, I may require counsel for defendants to make further arguments as to why the submissions (or designated parts of them) should remain under seal.
This order supersedes Magistrate Judge Gold’s Order of May 30, 2006.
So ordered.
	
  

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 </s> Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)

2006 WL 1517743 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Ibrahim TURKMEN, et al., Plaintiffs, v.
John ASHCROFT, et al., Defendants. Ehab Elmaghraby, et al., Plaintiffs,
v. John Ashcroft, et al., Defendants.
No. 02-CV-2307 (JG), 04-CV-1809 (JG). | May 30, 2006.
Attorneys and Law Firms
Michael Winger, Stephanie Yu, Covington & Burling, New York, NY, Rachel Anne Meeropol, Jennifer M. Green, Matthew D. Strugar, Shayana Devendra Kadidal, New York, NY, for Plaintiffs, Ibrahim Turkmen, et al.
Brian D. Miller, Dennis C. Barghaan, Larry L. Gregg, Richard W. Sponseller, Office of the U.S. Attorney, Alexandria, VA, Ernesto H. Molina, Stephen E. Handler, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Craig Lawrence, U.S. Attorney’s Office, D.D.C., Michael L. Martinez, Justin P. Murphy, Kyler Smart, Matthew Scarlato, Crowell & Moring LLP, Debra L. Roth, Thomas M. Sullivan, Shaw, Bransford, Veilleux & Roth, PC, Washington, DC, Bassel Bakhos, Law Office of William Alden McDaniel, Jr., Baltimore, MD, Allan Noel Taffet, Joshua C. Klein, Duval & Stachenfeld LLP, David A. Koenigsberg, Menz Bonner & Komar LLP, Nicholas Gregory Kaizer, Yvonne Shivers, Law Offices of Richard Ware Levitt, Labe M. Richman, Attorney at Law, Kenneth C. Murphy, Laura L. Nagel, Simon & Partners LLP, New York, NY, John B. Saville, Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, Barry M. Lasky, Lasky & Steinberg PC, James G. Ryan, Cullen and Dykman Bleakley Platt, LLP, Mehrdad Kohanim, Law Office of Mehrdad Kohanim, Garden City, NY, Alan E. Wolin, Wolin & Wolin, Esqs., Jericho, NY, James F. Matthews, Matthews & Matthews, Thomas Gerard Teresky, Huntington, NY, Richard Peter Caro, Richard P. Caro, J.D., Riverside, IL, Linda Cronin, Cronin & Byczek LLP, New Hyde Park, NY, Raymond P. Cash, Forest Hills, NY, E. Michael Rosenstock, Law Offices of E. Michael Rosenstock, P.C., Rockville Centre, NY, for Defendants.
Michael McCabe, Greenacres, FL, pro se.
William Beck, Hazleton, PA, pro se.
Alexander A. Reinert, Koob & Magoolaghan, Mamoni

Bhattacharyya, Weil, Gotshal & Manges, LLP, Haeyoung Yoon, New York, NY, for Plaintiffs, Ehab Elmaghraby, et al.
Opinion
ORDER
GOLD, S., U.S.M.J.:
Introduction
*1 The United States seeks reconsideration of an order I issued during a conference held in these related actions on March 7, 2006. The order was entered in response to a motion by plaintiffs to compel the United States to answer an interrogatory asking “whether any telephone, email or other communication between any plaintiff and his counsel was monitored or intercepted since the plaintiff’s removal from the United States.” Turkmen Plaintiffs’ Interrogatory No. 9.
During the conference on March 7, 2006, the following colloquy with government counsel took place:
THE COURT: Now, let’s take a look at [interrogatory] 9.... Let me give you an off-the-cuff reaction without the benefit of your input and then I’ll hear from each of you.
My instinct is that Mr. Handler’s right. This has nothing to do really with the claims in this case. However, they [plaintiffs’ counsel] can’t be expected to prepare their case if they think that somebody’s listening to their conversations with their client.
I think they’re entitled, at a minimum, to a representation that no member of the trial team is aware that any of this [is] going on ...-and that as far as you know, no witness who might testify in this case is aware that any of this is going on. And third, that there is no intention to use any evidence developed through any mechanism, such as 9 ..., in connection with the defense of this action. At a minimum, I think they’re entitled to that.
Is there any difficulty with that kind of representation?
MR. HANDLER: I have no knowledge and [have] not received any information that would be along
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
those lines. THE COURT: I need it formally on behalf of the entire trial team....

MR. HANDLER: Okay. We’ll prepare a written response.

THE COURT: I want to know that no member of the trial team is aware of any of this activity. I want a representation that as far as the members of the litigation-[When] I say trial team, I mean the litigation team and support staff, et cetera-that as far as you know, no witness who might testify in this action is aware of any information culled through devices such as described in 9.... And I want a commitment that no information developed through such means will be used in the litigation of this case.
Tr. of March 7, 2006, Docket Entry 481, at 31-33.
Despite the parties’ apparent agreement with the resolution described above, the government filed a letter on March 17, 2006, seeking reconsideration. Docket Entry 477.1 The substance of the government’s motion reads in its entirety as follows:

1

All references to docket entries are to the docket in

02-CV-2307. Identical documents have been docketed

with different identifying numbers in 04-CV-1809.

After further examination of the issue, the Department of Justice has concluded that it would be inappropriate to provide on the public record any further answers to the above questions, including as to the trial team. No official or employee of the government, including trial counsel, can publicly confirm or deny whether any communications were intercepted by classified means. If, for example, an official or employee, including trial counsel, did not know about such intercepts and so indicated in one case, any refusal to confirm or deny such intercepts in another case could itself reveal classified information. Thus, even if no interceptions occurred in this case, a denial by the government as to such intercepts could tend to reveal classified information. *2 Gov’t Letter dated March 17, 2006, at 1-2. Plaintiffs opposed the government’s motion for reconsideration, Docket Entry 478, and the government responded by modifying its position. By letter dated March 27, 2006, the government represented that “no member of the trial team has received” or “expects or intends to receive any intercepts of attorney-client communications,” and that “no such intercepts will be

used in the defense of the action.” Gov’t Letter dated March 27, 2006, Docket Entry 479, at 1.
Plaintiffs responded by letter dated March 30, 2006, Docket Entry 482, and argued that the government’s representations were insufficient to comply with the order issued on March 7, 2006. More specifically, plaintiffs pointed out that the government’s letter failed to confirm that either trial team members or witnesses were unaware of any interception of confidential communications between plaintiffs and their attorneys, and provided “no assurance that witnesses will not have access to the content of any such interceptions.” Pl. Letter dated March 30, 2006 at 1. The government then reiterated its objection to providing this additional information, asserting that “[t]o do so, as previously explained, could tend to reveal classified information by inviting comparisons to the government’s responses in other cases.” Gov’t Letter dated April 13, 2006, Docket Entry 410, at 2.
In an effort to resolve the apparent impasse, I suggested that the government might have its witnesses make a series of representations in the alternative, so that the specific information the government sought to protect would not be revealed. The government accepted my suggestion with minor revisions, and proposed that its witnesses might subscribe to the following series of alternative representations:
1) I am not aware of any surveillance or interception of the substance of attorney-client communications between plaintiffs and their counsel in these actions; OR
2) I have never been made aware of the substance of any attorney-client communications between plaintiffs and their counsel in these actions; OR
3) I do not have, and have not had since the first time I met with trial counsel representing the United States, i.e., Stephen Handler, Clay Mahaffey, and Ernesto Molina (hereinafter, the “trial counsel”), any recollection of the substance of any attorney-client communications between plaintiffs and their counsel in these actions; OR
4) I have not communicated the substance of any attorney-client communications between plaintiffs and their counsel in these actions that I recall to trial counsel and have not used the substance of any attorney-client communications between plaintiffs and their counsel in these actions to influence trial counsel’s conduct of this case in any manner. I agree not to do so in the future, and I cannot anticipate any reason why truthfully answering questions relevant to the allegations plaintiffs make in this case would require me to communicate the substance of any
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attorney-client communications.
*3 I declare that at least one of the above four paragraphs is true, and I agree that, if I become aware of the substance of attorney-client communications between plaintiffs and their counsel in these actions in the future, I will not reveal them to trial counsel.
Gov’t Letter dated May 5, 2006, Docket Entry 489. However, the government qualified its proposal by stating it would ask only witnesses with “relevant factual knowledge regarding the plaintiffs’ allegations” to sign the statement, reserving the right to interview witnesses who refused to sign the statement, and conditioning production of the statements on an agreement that no discovery be taken about them and that the statements not be used by plaintiffs’ counsel in any manner. Gov’t Letter dated May 5, 2006, at 2.
Plaintiffs assert that the government’s proposal is inadequate, and persist in their demand for discovery of whether any member of the trial team or any government witness is aware of any electronic surveillance of any communications between any plaintiff and his counsel, and a representation that any information obtained through such surveillance will not be used in the defense of this case.
Discussion
Rule 26 of the Federal Rules of Civil Procedure provides for broad discovery.
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
FED. R. CIV. P. 26(b)(1). Clearly, statements made by plaintiffs to the attorneys representing them in this action are likely to be relevant to the parties’ claims and defenses. Indeed, the criminal rules, which afford defendants narrower discovery than is available in civil cases, require the prosecution to produce any statements made by a defendant to a government agent. See FED. R.CRIM. P. 16(a)(1).

Moreover, as plaintiffs’ counsel have repeatedly argued, they seek discovery here not only to help prepare their case, but also to ensure that the defendants have not gained a tactical advantage by invading the attorney-client privilege, and to attain some degree of comfort that they and their clients may communicate without the chilling specter of government eavesdropping. See Pl. Letter dated May 12, 2006, Docket Entry 491, at 1 n. 1. The significance of the attorney-client privilege and its goal of frank and candid communication between a represented party and his counsel is too well-settled to require lengthy citation. See, e.g., Swidler & Berlin v. U.S., 524 U.S. 399, 403-10, 118 S.Ct. 2081, 2084-88, 141 L.Ed.2d 379 (1998); Upjohn Co. v. U.S., 449 U.S. 383, 389-91, 101 S.Ct. 677, 682-83, 66 L.Ed.2d 584 (1981); Chase Manhattan Bank v. Turner & Newall, PLC, 964 F.2d 159, 165 (2d Cir.1992).
*4 Plaintiffs’ effort to learn whether their conversations with their attorneys were monitored by the government is not a mere fishing expedition based on unfounded speculation. An investigation conducted by the Office of the Inspector General for the United States Department of Justice found that, on more than forty occasions, members of the staff at the Metropolitan Detention Center (“MDC”), the facility where many of the plaintiffs were held,
recorded detainees’ visits with their attorneys using video cameras.... On many videotapes, we were able to hear significant portions of what the detainees were telling their attorneys and sometimes what the attorneys were saying as well.
OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, SUPPLEMENTAL REPORT ON SEPTEMBER 11 DETAINEES’ ALLEGATIONS OF ABUSE AT THE METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK at 31 (Dec.2003) (“OIG Sup. Rep.”), Turkmen Third Am. Compl., Ex. 1, Docket Entry 109.
In opposition to plaintiffs’ motion, the government asserts, in a conclusory manner, that disclosing whether any conversations between plaintiffs and their counsel were monitored would reveal classified information. Gov’t Letter dated Mar. 17, 2006, at 1-2. The government has failed to present any specific facts or information in support of its contention that providing the information sought by plaintiffs would result in the disclosure of classified information. In any event, it is difficult to imagine what relevant facts remain secret but would be revealed if the information at issue were provided.
Presumably, the government’s concern with revealing classified information has to do with the fact that
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
plaintiffs, at least as alleged in their complaint, were detained following the September 11, 2001 terrorist attacks in the United States as persons “of interest” to the government’s investigation. Turkmen Third Am. Compl. ¶ 1. However, the government’s electronic surveillance of individuals suspected of links to terrorism has received widespread publicity and has even been acknowledged by the President of the United States and other high-level government officials. See, e.g., James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, THE N.Y. TIMES, Dec. 16, 2005, at 1; Eric Lichtblau, Bush Defends Spy Program and Denies Misleading Public, THE N.Y. TIMES, Jan. 2, 2006, at 11; Elisabeth Bumiller, Bush Sees No Need for Law to Approve Eavesdropping, THE N.Y. TIMES, Jan. 27, 2006, at 20; Dan Eggen, Gonzales Defends Surveillance; Senators from Both Parties Challenge Attorney General on Program, THE WASHINGTON POST, Feb. 7, 2006, at A01; Charles Babington & Dan Eggen, Gonzalez Seeks to Clarify Testimony on Spying; Extent of Eavesdropping May Go Beyond NSA Work, THE WASHINGTON POST, Mar. 1, 2006, at A08. Moreover, the detention of individuals suspected of involvement in terrorist activities at the MDC after September 11, 2001, has also been documented. See OIG Sup. Rep. at 2. Finally, it appears that all of the plaintiffs have been “cleared” by the FBI of having links to terrorism. See Turkmen Third Am. Compl. ¶ 1, citing OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, THE SEPTEMBER 11 DETAINEES: A REVIEW OF THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER 11 ATTACKS (June 2003). Accordingly, any claim that sensitive secrets would be revealed by the government’s disclosure of whether conversations between plaintiffs and their counsel in this case were monitored is hard to fathom.
*5 As discussed above, the government, modifying a proposal I made, suggests that both its concern with secrecy and plaintiffs’ concern with access to relevant information could be met by having witnesses sign a statement declaring that at least one of four alternative representations is true. Plaintiffs have persuaded me, however, that this proposal is not adequate for at least two reasons. First, the government seeks to preclude discovery about the witness statements. However, one of the alternative representations suggests that the witness is aware of the substance of an attorney-client communication, but has not related the substance of the communication to members of the trial team or allowed his knowledge of the substance to influence his testimony. Plaintiffs should be entitled to test this representation in discovery just as they would any other important statement made by an adverse witness, and not be required merely to rely upon a conclusory declaration without access to the underlying specific facts. Second, while the government states that it will agree to request

that its witnesses sign the proposed statement, it also seeks to reserve its right to interview witnesses who refuse to sign the statement, and to preclude plaintiffs from using the witness statements in connection with the litigation in any way. Clearly, members of the trial team should not be interviewing witnesses who have heard plaintiffs’ attorney-client conversations and are unable to say that they will not share the contents with government counsel. Moreover, plaintiffs should be permitted to rely upon the witness statements if, for example, they conclude it is appropriate to move to limit or exclude testimony or disqualify counsel based upon the information the witness statements reveal. Cf. Hempstead Video, Inc. v. Inc. Village of Valley Stream, 409 F.3d 127, 133 (2d Cir.2005) (recognizing that a “taint arises when an attorney places himself in a position where he could use a client’s privileged information against that client” and that an attorney in such a position may, under certain circumstances, be subject to disqualification).
For similar reasons, I reject the government’s suggestion that, even if trial team members or witnesses who have knowledge of the substance of attorney-client communications must be disclosed, the government need not identify team members or witnesses who merely know that communications were intercepted but have not been made aware of their substance. As suggested above, plaintiffs should be permitted to test the recollection and accuracy of witnesses who assert that they are aware that privileged communications were intercepted but deny knowledge of the substance of the interception. Second, even details about an attorney-client communication other than its substance-for example, when it occurred relative to other critical events, how long it lasted, where the attorney and client were when they communicated-might reveal information protected by the attorney work-product doctrine. Cf. Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.1985) (“[T]he selection and compilation of documents by counsel in this case ... falls within the highly-protected category of opinion work product.”); Gould Inc. v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676, 680 (2d Cir.1987) (recognizing the validity of the Sporck argument but requiring a “real, rather than speculative, concern” that counsel’s thought processes might be revealed with respect to the selection of documents). See also Hickman v. Taylor, 329 U.S. 495, 510-512, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947) (discussing generally the significance of work-product protection).
Conclusion
*6 For all these reasons, the government’s motion for reconsideration is denied, and the government is directed to comply with the ruling I made during the conference held on March 7, 2006. More specifically, the government
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Turkmen v. Ashcroft, Not Reported in F.Supp.2d (2006)
shall, within three weeks of the date of this order or, if an appeal is taken, within three weeks of any decision affirming this order:
(1) state whether any member of the trial team is aware of any monitoring or surveillance of communications between any of the plaintiffs and their attorneys in either of these related actions. The “trial team” includes all attorneys and support staff who are participating in the defense of this case, as well as any supervisors or other individuals who are providing guidance or advice or exercising decision-making authority in connection with the defense of the United States in these cases;
(2) state whether any individual who has been identified as a likely witness in either of these cases is aware of any monitoring or surveillance of communications between any of the plaintiffs and their attorneys in either of these related actions; and
(3) state whether any information obtained from monitoring or surveillance of communications between any of the plaintiffs and their attorneys in either of these related actions will be used in any way by the

United States in its defense of these cases and, if so, identify the information that will be so used.
As my order indicates, the scope of the government’s inquiry should be limited to the trial team and likely witnesses, and does not extend to the government as a whole; were I to rule otherwise, there is the possibility of tainting the trial team by exposing them to information they would not be aware of but for the investigation they conducted in response to my order. The government’s duty to respond is, of course, a continuing one, and any responses must be supplemented as new witnesses are identified or additional responsive information comes to light. Finally, if a witness or member of the trial team with knowledge of monitoring or surveillance is identified, it may be sensible to have the ensuing investigation conducted by an isolated team of attorneys to avoid further taint.
SO ORDERED.
	
  

5

 </s> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FOR PUBLICATION

IBRAHIM TURKMEN, AKHILSACHDEVA, AHMER IQBAL ABBASI, ANSER MEHMOOD, BENAMAR BENATTA, AHMED KHALIFA, SAEED HAMMOUDA, and PURNA RAJ BAJRACHARYA on behalf of themselves and all others similarly situated,
Plaintiffs,
- versus -
JOHN ASHCROFT, former Attorney General of the United States, ROBERT MUELLER, Director of the Federal Bureau of Investigation, JAMES W. ZIGLAR, former Commissioner of the Immigration and Naturalization Service, DENNIS HASTY, former Warden of the Metropolitan Detention Center (MDC), MICHAEL ZENK, former Warden MDC, JAMES SHERMAN, former MDC Associate Warden for Custody; SALVATORE LOPRESTI, former MDC Captain; JOSEPH CUCITI, former MDC Lieutenant,
Defendants.

MEMORANDUM AND ORDER 02-CV-2307

A P P E A R A N C E S
CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012
By: Rachel Anne Meeropol George Gardner William P. Quigley Sunita Patel Michael Winger Attorneys for Plaintiffs
NEIL H. MacBRIDE United States Attorney for the Eastern District of Virginia 2100 Jamieson Avenue Alexandria, Virginia 22314
By: Dennis C. Barghaan, Jr. Attorney for Defendant John Ashcroft

RONALD C. MACHEN, JR. United States Attorney for the District of Columbia 555 4th Street, N.W. Washington, District of Columbia 2
By: R. Craig Lawrence Attorney for Defendant Robert Mueller
LAW OFFICES OF WILLIAM ALDEN McDANIEL, JR. 118 West Mulberry Street Baltimore, Maryland 21201
By: William Alden McDaniel, Jr. Attorney for Defendant James Ziglar
CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, District of Columbia 20004
By: David Bell Michael L. Martinez Attorneys for Defendant Dennis Hasty
DUVAL & STACHENFELD LLP 101 Park Avenue New York, New York 10178
By: Joshua Klein Attorneys for Defendant Michael Zenk
SHAW BRANSFORD VEILLEUX & ROTH, P.C. 1100 Connecticut Avenue NW, Suite 900 Washington, District of Columbia 20036
By: Debra L. Roth Attorneys for Defendant James Sherman
JOSEPH CUCITI United States Department of Homeland Security 26 Federal Plaza New York, NY 10278 Defendant Pro Se
JOHN GLEESON, United States District Judge:
Plaintiffs Ibrahim Turkmen, Akhil Sachdeva, Ahmer Iqbal Abbasi, Anser
Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Raj Bajracharya
bring this putative class action against John Ashcroft, Robert Mueller, James Ziglar, Dennis
2

Hasty, Michael Zenk, James Sherman, Salvatore Lopresti, and Joseph Cuciti. Plaintiffs were

arrested and detained by federal authorities in connection with the investigation of the terrorist

attacks of September 11, 2011. They bring six Bivens claims and a seventh claim under 42

U.S.C. § 1985, all arising out of their allegations of discriminatory and punitive detention. The

defendants have now moved to dismiss. For the reasons set forth below, the defendants’ motions

are granted in part and denied in part.

Specifically, the claims based on the alleged harsh conditions of confinement and

unlawful strip searches (Claims One, Two and Six) shall proceed against Hasty, Zenk, Sherman, Lopresti, and Cuciti. To the extent they are alleged against Ashcroft, Mueller and Ziglar,1 the

allegations are insufficient and the claims are therefore dismissed as against them. As for the

claimed deprivation of the plaintiffs’ free exercise rights (Claim Three), I hold that the Bivens

damages remedy is extended to this context and that the claim shall proceed against Hasty, Zenk,

Sherman, Lopresti, and Cuciti. It is insufficiently pled against Ashcroft, Mueller and Ziglar and

is therefore dismissed as against them. The claims based on the alleged communications

blackout and interference with counsel (Claims Four and Five) are dismissed as to all defendants

on the ground of qualified immunity. Finally, the conspiracy claim (Claim Seven) shall proceed,

but only to the extent that the underlying objects of the conspiracy (Claims One through Six)

have survived the motion. Thus, it is dismissed as against Ashcroft, Mueller and Ziglar and shall

proceed to the extent it alleges a conspiracy by the remaining defendants to commit the civil

rights violations alleged in Claims One, Two, Three and Six.

In sum, the case against Ashcroft, Mueller and Ziglar is dismissed in its entirety.

Only Claims Four and Five (and the part of Claim Seven that alleges a conspiracy to commit the

1

These three defendants are not named as defendants in Claim Six, which focuses specifically on

strip searches.

3

wrongs charged in Claims Four and Five) are dismissed as against the other defendants. Counsel for the remaining parties are directed to appear before Chief Magistrate Gold for a status conference on January 30, 2013 at 2:00 PM.
BACKGROUND A. Factual Allegations
1. Overview The plaintiffs are eight male, non-United States citizens who were arrested on
immigration charges following the terrorist attacks on September 11, 2001 (“9/11 attacks”). They were held in immigration custody for periods ranging from three to eight months after receiving final orders of removal or grants of voluntary departure. All but two are Muslims of Middle Eastern, North African, or South Asian origin; the others, natives of India and Nepal, are Hindu. Plaintiffs bring this putative class action on behalf of themselves and a class of male non-citizens who are Arab or Muslim, or were perceived by the defendants to be Arab or Muslim,2 and were (1) arrested by the Immigration and Naturalization Service (“INS”) or the Federal Bureau of Investigation (“FBI”) after September 11, 2001, and charged with immigration violations; (2) treated as “of interest” to the government’s terrorism investigation; (3) detained under a blanket “hold-until-cleared” policy, pursuant to which they were held without bond until cleared of terrorist ties by the FBI; and (4) confined in the Metropolitan Detention Center (“MDC”) or the Passaic County Jail (“Passaic Jail”). I refer to the putative class as the “Detainees.”

2

Hereinafter, mention of Arab and/or Muslim individuals includes individuals who were perceived

by the defendants to be Arab and/or Muslim.

4

The Complaint names the following individuals as defendants: (1) John Ashcroft, the former Attorney General of the United States, Robert Mueller, the Director of the FBI, and James W. Ziglar, the former Commissioner of the INS (collectively, the “DOJ defendants”); (2) Dennis Hasty and Michael Zenk, both former wardens of the MDC; and (3) James Sherman, Salvatore LoPresti, and Joseph Cuciti, all former MDC officials of a rank below warden. I refer to Hasty, Zenk, Sherman, LoPresti, and Cuciti collectively as the “MDC defendants.”
2. The Treatment of the Detainees3 In the aftermath of the 9/11 attacks, the defendants acted together to create and
implement a series of policies and practices relating to the identification, detention, and treatment of Arab and Muslim noncitizens who had violated immigration laws (i.e., the Detainees). I refer to this series of policies and practices in the aggregate as the “detention policy.” Pursuant to the detention policy, the Detainees were rounded up and detained on their immigration violations so government officials could question them in connection with the ongoing investigation of the 9/11 attacks (the “PENTTBOM investigation”); they were treated as “of interest” to the PENTTBOM investigation, which meant that they were deemed to be potential terrorists despite the fact that they had been arrested based on immigration violations, not on suspicion of terrorist activity; they were subject to a hold-until-cleared policy, under which they were held for lengthy periods of times – often for months after they were ordered removed from the country – until the FBI affirmatively cleared them of suspicion of wrongdoing; and they were held until their release in extremely restrictive conditions of confinement. The

3

The factual allegations set forth herein are drawn from the Complaint and two incorporated reports

by the Office of the Inspector General to the extent those reports are not contradicted by the allegations of the

Complaint. ¶ 3 n.1. All citations in this opinion preceded by “¶” or “¶¶” refer to paragraphs of the Complaint.

5

only aspect of the detention policy challenged in the Complaint is the confinement of the Detainees in harsh conditions (“harsh confinement policy”).
The harsh confinement policy, which was created by the DOJ defendants, was a directive to hold the Detainees in restrictive conditions under which they would feel maximum pressure to cooperate with the PENTTBOM investigation. Although this policy mandated that the Detainees’ ability to contact the outside world be limited, it did not specify the precise conditions in which they would be held. Rather, the harsh confinement policy was a general mandate, and the exact manner of its implementation was to be determined by officials at the facilities in which the Detainees were held.4
The harsh confinement policy was expressly directed at Arab and Muslim noncitizens who had violated immigration laws: It mandated restrictive conditions specifically for Arab and Muslim individuals. In other words, it was discriminatory on its face. This is not to say that no non-Arabs and non-Muslims were held in harsh conditions of confinement as a result of the investigation following the 9/11 attacks. Other individuals may have been held in such conditions pursuant to other policies or for other reasons. However, the harsh confinement policy expressly applied to Arab and Muslim individuals, dictating that those detained under the policy be held in harsh conditions of confinement – not because of any suspected links to terrorism, but because of their race, national origin, and/or religion.

4

Plaintiffs allege that Ashcroft and Mueller “mapped out ways to exert maximum pressure” on the

Detainees, and that Ashcroft “created many of the unreasonable and excessively harsh conditions” under which the

Detainees were held, ¶ 21. These allegations imply that the harsh confinement policy mandated some of the specific

conditions that the Detainees endured at the MDC, but the plaintiffs have never specified what those particular

conditions were. Moreover, as discussed more fully below, the plaintiffs concede that the specific conditions in

which the Detainees were held were created by the MDC defendants in implementing the harsh confinement policy.

See ¶ 65 (“The punitive conditions in which MDC Plaintiffs and class members were placed were the direct result of

the strategy mapped out by Ashcroft and Mueller’s small working group.”) (emphasis added); Pls.’ Opp. Mot. to

Dismiss 3, ECF No. 749 (“[I]t does not appear that Ashcroft’s small group personally designed the details of every

restrictive condition . . . .”).

6

The harsh confinement policy was implemented by the MDC defendants in the following way: The Detainees (the “MDC Detainees”) were placed in that facility’s Administrative Maximum Special Housing Unit (the “ADMAX SHU”). There, they were confined in tiny cells for over 23 hours a day, provided with meager and barely edible food, and prohibited from moving around the unit, using the telephone freely, using the commissary, accessing MDC handbooks (which explained how to file complaints about mistreatment), and keeping any property, including personal hygiene items like toilet paper and soap, in their cells. Whenever they left their cells, they were handcuffed and shackled. Although they were offered the nominal opportunity to visit the recreation area outside of their cells several times a week, the recreation area was exposed to the elements and the MDC Detainees were not offered clothing beyond their standard cotton prison garb and a light jacket. Furthermore, detainees who accepted such offers were often physically abused along the way, and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment. As a result, they were constructively denied exercise during the fall and winter.
The MDC Detainees also were denied sleep. Bright lights were kept on in the ADMAX SHU for 24 hours a day (until March 2002), and staff at the MDC made a practice of banging on the MDC Detainees’ cell doors and engaging in other conduct designed to keep them from sleeping. They also conducted inmate “counts” at midnight, 3:00 a.m., and 5:00 a.m. While such counts are inherently disruptive – officers are required to see the skin of each inmate being counted, see BOP P.S. 5500.09 – the officers “went beyond what was required for the count by kicking the door hard with their boots, knocking on the door at night much more frequently than required, and making negative comments when knocking on the door.” ¶ 39. For example, for the first two or three weeks that one detainee was in the ADMAX SHU, one of
7

the officers walked by about every 15 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, “Motherfuckers,” “Assholes,” and “Welcome to America.” ¶ 36. In addition, officers used the in-cell camera to watch one detainee, and when he would appear to fall asleep they would kick the cell door.
The MDC Detainees also were subjected to frequent physical and verbal abuse by many of the officers in the ADMAX SHU. The physical abuse included slamming the MDC Detainees into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways. The use of such force was unnecessary because the MDC Detainees were always fully compliant with orders and rarely engaged in misconduct. The verbal abuse included referring to the MDC Detainees as “terrorists” and other offensive names, threatening them with violence, cursing at them, insulting their religion, and making humiliating sexual comments during strip-searches.
Both the MDC Detainees and the Detainees held at the Passaic Jail (the “Passaic Detainees”) were subjected to unreasonable and punitive strip-searches. The MDC Detainees were strip-searched every time they were removed from or returned to their cells, including before and after visiting with their attorneys, receiving medical care, using the recreation area, attending a court hearing, and being transferred to another cell. They were strip-searched upon each arrival at the MDC in the receiving and discharge area and again after they had been escorted – shackled and under continuous guard – to the ADMAX SHU. These strip-searches occurred even when they had no conceivable opportunity to obtain contraband, such as before and after non-contact attorney visits (to and from which they were escorted – handcuffed and
8

shackled – by a four-man guard). Supp. OIG Rep. at 3. The MDC had no written policy governing when to conduct strip-searches, and they were conducted inconsistently.
The strip-searches were unnecessary to security within the MDC. Rather, they were conducted to punish and humiliate the detainees. Female officers were often present during the strip-searches; the strip-searches were regularly videotaped in their entirety (contrary to BOP policy, see BOP P.S. 5521.05); and MDC officers routinely laughed and made inappropriate sexual comments during the strip-searches.
Officers at the MDC and the Passaic Jail also interfered with the Detainees’ ability to practice and observe their Muslim faith. Specifically, when the Detainees requested copies of the Koran, officers delayed for weeks or months before providing them; the MDC and the Passaic Jail failed to provide food that conformed to the Halal diet, despite the Detainees’ requests for such food; the MDC had no clock visible to the MDC Detainees, and officers regularly refused to tell them the time of day or the date so they could conform to daily Islam prayer requirements and observe Ramadan; and officers constantly interrupted the Detainees’ prayers by banging on their cell doors, yelling and making noise, screaming derogatory antiMuslim comments, videotaping them, handing out hygiene supplies, and/or telling them to “shut the fuck up” while they were trying to pray.
In addition, most of the MDC Detainees were held incommunicado during the first weeks of their detention (the “communications blackout”). MDC staff repeatedly turned away everyone, including lawyers and relatives, who came to the MDC looking for the MDC Detainees, and thus the MDC Detainees had neither legal nor social visits during this period. This communications blackout lasted until mid-October 2011.
9

After the initial communications blackout, the MDC Detainees were nominally permitted one call per week to an attorney. However, MDC officers obstructed Detainees’ efforts to telephone and retain lawyers in multiple ways. They were denied sufficient information to obtain legal counsel; although they were given a list of organizations that provide free legal services, the contact information for these organizations was outdated and inaccurate. Legal calls that resulted in a wrong number or busy signal were counted against their quota of calls, as were calls answered by voicemail. Officers frequently asked the MDC Detainees, “Are you okay?,” and if the MDC Detainees responded affirmatively, the officers construed this as a waiver of their already-limited privilege to make legal calls. The officers also often brought the phone to the MDC Detainees early in the morning before law offices opened for the day. And they frequently pretended to dial a requested number or deliberately dialed a wrong number and then claimed the line was dead or busy. They then refused to dial again, saying that the Detainee had exhausted his quota.
When the MDC Detainees managed to reach their attorneys by phone, the officers frequently stood within hearing distance of conversations that should have been treated as privileged. Legal visits were non-contact and the MDC Detainees were handcuffed and shackled during the entirety of the visits. The MDC video- and audio-recorded the MDC Detainees’ legal visits until April 2002 or later.
The MDC Detainees were nominally permitted one social call per month after the initial communications blackout. However, these calls were just as severely restricted as the legal calls. Social visits were restricted to immediate family, yet even immediate family members were sometimes turned away. As with their legal visits, social visits were non-contact and the MDC Detainees were handcuffed and shackled during the entirety of the visits.
10

3. The Plaintiffs a. Ahmer Iqbal Abbasi Abbasi, a citizen of Pakistan and a devout Muslim, entered the United States in
1993 on a visitor visa. He applied unsuccessfully for political asylum, and he remained in the United States illegally after his application was denied. He initially worked as a taxicab driver in Manhattan, saving enough money to purchase a small grocery store, which he sold sometime before 2001.
Abbasi was arrested by the FBI on September 25, 2001. He was interviewed by officials from the FBI, INS, and the New York Police Department (“NYPD”), who gave him no information regarding why he was being detained. The officials asked, among other things, about Abbasi’s religious beliefs and practices. Abbasi later learned that his arrest had resulted from a report that a “male[,] possibly Arab” (apparently Abbasi’s houseguest) had presented a false Social Security card at the New Jersey Department of Motor Vehicles and had given Abbasi’s address as his own. Abbasi was detained in the ADMAX SHU at the MDC.
b. Anser Mehmood Mehmood, a citizen of Pakistan and a devout Muslim, entered the United States in 1989 with his wife, Uzma (Abbasi’s sister), and their three children. Mehmood entered on a business visa but remained illegally after the visa expired. He started a trucking business in the United States, making enough money to purchase a home and to send funds to his extended family in Pakistan. Mehmood and his family settled in Bayonne, New Jersey. Another child, an American citizen by birth, was born in 2000. All four of the children attended public school in New Jersey. In May 2001, another of Uzma’s brothers, who is an American citizen, submitted an immigration petition for Mehmood and his family.
11

On October 3, 2001, a team of FBI and INS agents visited Mehmood and his wife in their home based on the same report that led to Abbasi’s arrest. The agents interviewed Mehmood and his wife about their immigration status, showed them images of people they did not recognize, and asked whether they were involved in jihad. The agents, who sought information on another of Uzma’s brothers, who was living in Pakistan, told Mehmood that they needed to arrest either Mehmood or his wife. They arrested Mehmood at his request. Mehmood was detained in the ADMAX SHU at the MDC.
c. Benamar Benatta Benatta, an Algerian citizen and member of the Algerian Air Force, entered the United States on a visitor visa on December 31, 2000. He was granted entry in order to study aviation at Northrop Grumman, but he remained in the United States after the expiration of his visa with the goal of seeking political asylum and gaining employment. On September 5, 2001, six days before the terrorist attacks, he crossed the Canadian border using false documentation with the intent to apply for refugee status there, but was detained by Canadian authorities for investigation. On September 12, he was transported back to the United States and turned over to the INS’s custody. At the Rainbow Bridge border control post in Niagara Falls, New York, Benatta was interrogated by the FBI regarding his false documentation. A report of the interrogation was disseminated, and the INS subsequently commenced removal proceedings. Benatta was served with a Notice to Appear at immigration court in Batavia, New York, but on September 16, 2001, before the proceeding occurred and before Benatta was able to retain counsel, he was transferred to the ADMAX SHU at the MDC.
12

d. Ahmed Khalifa Khalifa, a medical student from Egypt, was in the United States for three months on a student visa and had a return ticket to Egypt for October 15, 2001. On September 30, 2001, the apartment he shared with several other Egyptian friends was raided by FBI, NYPD, and INS agents on a tip that several Arabs living at Khalifa’s address were renting out a post office box and possibly sending out large quantities of money. The agents initially did not seem interested in Khalifa, although they asked him about his roommates, searched his wallet, and asked if he had had anything to do with the recent terrorist attacks. The agents subsequently determined that they wanted to hold Khalifa as well, and an FBI agent asked an INS agent to arrest Khalifa for working while in the United States on his student visa. Khalifa was detained in the ADMAX SHU at the MDC. e. Purna Raj Bajracharya Bajracharya, a citizen of Nepal, entered the United States in 1996 on a threemonth visa. For the next five years he remained in Queens illegally, working at various odd jobs and sending money to his wife and sons in Nepal. Bajracharya intended to return to Nepal in the fall or winter 2001, and he began videotaping certain New York streets to show his family. An employee of the Queens County District Attorney’s Office reported to the FBI on October 25, 2001 that an “Arab male” was videotaping a building that contained the District Attorney’s office and an FBI branch office. District Attorney staff promptly detained and searched him. During Bajracharya’s initial detention and interrogation, which lasted for five hours, FBI and INS agents requested that he bring them to his apartment. He did so, and showed the agents his passport and various identification documents. He admitted that he had overstayed
13

his visa and was illegally present in the United States, and the INS then arrested him. He was detained in the ADMAX SHU at the MDC.
f. Ibrahim Turkmen Turkmen, a Muslim Imam, is a citizen of Turkey. He came to the United States on October 4, 2000 on a six-month tourist visa to visit a friend from Turkey who lived on Long Island. Shortly after his arrival, Turkmen found work at a service station in Bellport, New York. He worked there until January 2001, when he took a job at another service station in the same town. In April 2001, he left that job and began to work part-time for a local Turkish construction company. He spoke regularly to his wife and four daughters, who remained in Turkey, and sent money to support them on a weekly basis. Turkmen spoke virtually no English when he first arrived in the United States. During his stay, he learned only the words necessary for his limited daily interaction with English-speakers. At the time that he was taken into custody, Turkmen understood very little spoken English, and he could not read English at all. On October 13, 2001, two FBI agents visited Turkmen at the West Babylon, New York apartment where he was staying with several Turkish friends. The visit was based on a tip from the friends’ landlady, who reported to an FBI hotline that she had rented her apartment to several Middle Eastern men and that she “would feel awful if her tenants were involved in terrorism and [she] didn’t call.” ¶ 251. The agents asked Turkmen whether he had any involvement in the 9/11 attacks and whether he had any association with terrorists. They also inquired as to his immigration status. Turkmen had difficulty understanding the questions posed to him in English by the FBI, and no interpreter was provided. Turkmen denied any involvement
14

with terrorists or terrorist activity. The FBI agents accused Turkmen of being an associate of Osama bin Laden and placed him under arrest. He was held at the Passaic Jail.
g. Akhil Sachdeva Sachdeva is a citizen of India and is Hindu. He holds a Bachelor of Arts degree in commerce from the University of Delhi. Since 1995, he has entered the United States for extended periods of time. In December 1998, Sachdeva legally immigrated to Canada. In 1998 he married a woman who owned a gas station in Port Washington, New York. He then briefly returned to Canada until sometime in September or October of 2001, when he returned to the United States to finalize his divorce. Sometime in late November 2001, an FBI agent visited his ex-wife’s gas station looking for a Muslim employee who had been overheard having a conversation in mixed Arabic and English relating to flight simulators and flying. Failing to locate the employee, the agent left a note requesting that Sachdeva’s ex-wife contact him. She passed on the request to Sachdeva, who called the agent in early December 2001. The FBI agent asked Sachdeva to come to the agent’s offices for an interview, and Sachdeva complied on December 9, 2001. At the interview, two FBI agents questioned Sachdeva about the 9/11 attacks and his religious beliefs and examined his personal identification. They permitted him to leave, but on December 20, 2001, INS agents arrested Sachdeva at his uncle’s apartment. He was detained at the Passaic Jail. 4. The Claims Alleged The Complaint sets forth seven claims for relief. Those claims, which plaintiffs assert on their own behalf and, in most instances, on behalf of the putative class, are: (1) a conditions of confinement claim under the Due Process Clause; (2) an equal protection claim alleging that defendants singled out plaintiffs for harsh conditions of confinement because of
15

their race, religion and/or ethnic or national origin; (3) a claim under the Free Exercise Clause; (4) a free speech and free association claim under the First Amendment; (5) a due process claim alleging interference with access to counsel; (6) a claim under the Fourth and Fifth Amendments for unreasonable and punitive searches; and (7) a claim alleging a conspiracy among the defendants to commit the civil rights violations described in the first six claims, in violation of 42 U.S.C. § 1985. B. Procedural History
The original complaint in this case was filed on April 17, 2002. The First Amended Complaint was filed on July 27, 2002. The government moved to dismiss on behalf of all named defendants on August 26, 2002, and oral argument on the motion was held on December 19, 2002. On June 2, 2003, the Office of the Inspector General of the United States Department of Justice released a 198-page report entitled “A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” (the “OIG Report”). In light of the OIG Report, the plaintiffs sought leave to amend their complaint, which I granted. Around that time, the government withdrew from representing the named defendants in their individual capacities, and substitute counsel filed notices of appearance.
On June 18, 2003, the plaintiffs filed the Second Amended Complaint, attaching the April 2003 OIG Report. Supplemental briefs in support of and opposing the motions to dismiss were filed. Then, in December 2003, the OIG filed another report – its 47-page “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York” (the “Supplemental OIG Report; the two OIG reports
16

are referred to collectively as the “OIG Reports”). On September 7, 2004, plaintiffs requested

leave to file a Third Amended Complaint, which I granted.

The Third Amended Complaint was filed on September 13, 2004. It raised thirty-

one claims for relief that, broadly speaking, fell into two categories. The first category of claims

stemmed from plaintiffs’ contention that the government used plaintiffs’ status as noncitizens

who had violated immigration laws as an excuse to hold them in jail while it pursued its real

interest: determining whether they were terrorists or could help catch terrorists. The second

category of claims challenged the conditions of confinement in which the plaintiffs were held.

On June 14, 2006, after another round of briefing, I issued a memorandum and order granting in part and denying in part the motions to dismiss.5 Turkmen v. Ashcroft, No. 02

Civ. 2307, 2006 WL 1662663 (E.D.N.Y. June 14, 2006) (“Turkmen I”). I dismissed the entire

first category of claims and let the majority of claims in the second category proceed.

Remaining after the motions to dismiss were: (1) the claim that the plaintiffs held in the MDC

were subject to punitive conditions of confinement in contravention of their substantive due

process rights; (2) the claim that the plaintiffs held in the MDC were unreasonably strip-searched

in violation of the Fourth and Fifth Amendments; (3) the claim that defendants interfered with

plaintiffs’ religious practices in violation of the Free Exercise Clause; (4) the claim that

defendants violated plaintiffs’ due process rights by assigning them to the ADMAX SHU

without process of any sort; (5) the claim that the defendants singled out the plaintiffs for harsh

treatment in detention because of their race, religion and/or ethnic or national origin in violation

5

At a hearing on October 21, 2004, I ordered that discovery could begin on claims involving the

conditions of confinement and the use of excessive force. The MDC Defendants moved to dismiss those claims as

against them, arguing that they were entitled to qualified immunity. That motion was denied by order dated

December 3, 2004, see ECF No. 149, and a motion for reconsideration and vacatur of the December 3, 2004 order

was denied on January 14, 2005. Familiarity with that order is presumed. Insofar as the issues addressed in that

order are affected by the Supreme Court’s decision in Iqbal, 556 U.S. at 662, I reconsider them here.

17

of the Equal Protection Clause; (6) the Due Process and conversion claims arising from

defendants’ confiscation of several plaintiffs’ personal property; (7) the claim that defendants

imposed a communications blackout during plaintiffs’ detention in violation of plaintiffs’ First

Amendment and due process rights; and (8) several Federal Tort Claims Act claims and excessive force claims not relevant here.6

The Second Circuit ruled on the appeal of Turkmen I in Turkmen v. Ashcroft, 589

F.3d 542 (2d Cir. 2009) (“Turkmen II”). In the period between Turkmen I and Turkmen II, the

Supreme Court issued its decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Iqbal dramatically

altered the legal landscape in two ways relevant to my decision in Turkmen I. First, it

revolutionized federal pleading standards, discarding the traditional “no set of facts” standard

established by Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and adopting a new “plausibility”

standard. Iqbal, 556 U.S. at 678-80. In addition, it eliminated the doctrine of supervisory

liability for Bivens claims. Id. at 676-77. Accordingly, the Second Circuit vacated my rulings

denying the motions to dismiss the conditions of confinement claims, which had applied the

outdated pleading standard, and remanded the case for reconsideration of those claims. Turkmen II, 589 F.3d at 547.7

On remand after Turkmen II, plaintiffs sought leave to amend, which I granted on

August 26, 2010. The instant complaint, entitled the Fourth Amended Complaint (the

“Complaint”), was filed on September 13, 2010. The Complaint includes six claims that were

originally raised in Turkmen I and a new claim never before raised. All defendants have moved

to dismiss.

6

Familiarity with Turkmen I and its underlying facts is presumed.

7

The Second Circuit also addressed plaintiffs’ challenge to my dismissal of several other claims,

and it affirmed the dismissal of those claims.

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DISCUSSION A. The Applicable Legal Principles
1. The Motion to Dismiss Standard The pleading landscape has changed substantially since this case was first before
me. Instead of holding the Complaint to the standard set by Conley, 355 U.S. at 45-46 (1957), under which a claim could not be dismissed unless the court concluded that there was no set of facts on which the plaintiff would be entitled to relief, following Iqbal, 556 U.S. at 678-80, I must now decide whether the plaintiffs’ allegations, if true, state a claim that is plausible on its face. A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Although the plausibility standard does not require plaintiffs to show that their desired inferences are more likely than not the correct inferences to draw, the facts alleged must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that “pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Bell Atl. v. Twombly, 550 U.S. 544, 557 (2007)).
Although in considering a motion to dismiss I am required to accept as true the factual assertions in a complaint, see Zinermon v. Burch, 494 U.S. 113, 118 (1990), I am “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Thus, I begin my analysis of the facial plausibility of the asserted claims by identifying, and casting aside, “pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. I then consider only the
19

well-pleaded factual allegations in the complaint, and assuming their truth, determine whether they plausibly suggest the plaintiffs’ entitlement to relief. See id. at 681.
2. Supervisory Liability After Iqbal Prior to the Supreme Court’s decision in Iqbal, an official could be held liable for
a constitutional tort under a theory of “direct liability” as well as “supervisory liability.” Direct liability is liability for “caus[ing] an injury while possessing the mens rea required [for a] particular constitutional [tort].” Comment, Supervisory Liability After Iqbal: Decoupling Bivens from Section 1983, 77 U. Chi. L. Rev. 1401, 1408 (2010). In other words, an individual becomes directly liable for a constitutional tort (he becomes a “primary actor”) when he acts in a way that satisfies each of the elements of that tort. For example, a defendant is directly liable for an equal protection violation if he (1) injures a plaintiff (causation) (2) because of discriminatory animus (mens rea). And if a defendant’s (1) deliberately indifferent failure to act in the face of a known risk to an inmate’s safety (mens rea) (2) causes injury to that inmate (causation), the defendant will be liable for an Eighth Amendment violation. As is evident, the elements that must be satisfied for a defendant to be held directly liable for a tort depend on the tort alleged.
In contrast, supervisory liability is incurred when a supervisory defendant (a “secondary actor”) is in some way “personally involved” with a primary actor’s constitutional tort and is a cause of the plaintiff’s injury. In the Second Circuit, personal involvement is understood broadly. A government official is personally involved in a constitutional tort if he: (1) participated directly in the alleged violation; (2) failed to remedy the violation after being informed of the violation through a report or appeal; (3) created a policy or custom, or allowed the continuance of such a policy or custom, under which unconstitutional practice occurred; (4) was grossly negligent in supervising a subordinate who committed the unlawful act; or (5)
20

exhibited deliberate indifference to an individual’s constitutional rights by failing to act on

information indicating the unconstitutional act was occurring. Colon v. Coughlin, 58 F.3d 865,

873 (2d Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

For supervisory liability to exist, the secondary actor’s behavior need not satisfy

each of the elements of the constitutional tort. Rather, as long as a primary actor committed a

constitutional tort and the secondary actor was personally involved in that tort (in any of the five

ways set forth in Colon) and was a cause of the plaintiff’s injury, the secondary actor may be

held liable. The elements necessary to incur supervisory liability do not vary with the

constitutional tort alleged. Thus, the conduct of a secondary actor sued for supervisory liability

will be judged under the same standard for personal involvement, regardless of whether the

primary actor’s tort arises under the Equal Protection Clause or the Fourth Amendment.

Supervisory

liability, therefore, extends liability to persons who cannot be held

directly liable. While direct liability exists only when all the elements of the tort in question

have been established, supervisory liability can operate to relax a mens rea element, allowing

liability against a supervisory defendant who does not satisfy that element of the tort. For

example, a supervisor who lacked discriminatory intent can never be held directly liable for an

equal protection violation, but if he “was grossly negligent in supervising a subordinate” who

committed an equal protection violation, he may be held liable on a theory of supervisory

liability. Rather than act with the intent to discriminate, the supervisory defendant need only

have been negligent in the discharge of his supervisory responsibilities.

Supervisory

liability does not, however, relax all of the elements of a

constitutional tort. One common element of any recognized constitutional tort is that the

defendant caused the plaintiff’s injury. Supervisory liability does not dispense with the need to

21

show an affirmative causal link between the supervisor’s actions (or inactions) and the injury.

See, e.g., Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002) (holding that § 1983’s causation

requirement applies when invoking supervisory liability); Iqbal, 556 U.S. at 675 (“In the limited

settings where Bivens does apply, the implied cause of action is the ‘federal analog to suits

brought against state officials under [§ 1983].’”) (quoting Hartman v. Moore, 547 U.S. 250, 254

n.2 (2006)). In other words, regardless of whether a defendant is sued under a theory of direct or

supervisory liability, he must have caused the plaintiff’s injury.

In

Iqbal, the Supreme Court, in no uncertain terms, eliminated supervisory

liability in Bivens claims. Iqbal, 556 U.S. at 676-77. According to the Court, “where masters do

not answer for the torts of their servants[,] the term ‘supervisory liability’ is a misnomer.” Id. at

677. Thus, after Iqbal, in order for a plaintiff to assert a valid Bivens claim against a government

official, he “must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Id. at 676. In other words, only direct liability

remains for Bivens claims.

This is not to say that supervisors are now immune from Bivens actions. A

supervisor, just as any defendant, can be held directly liable for a constitutional tort if his actions

satisfy the elements of that tort. However, if a supervisor cannot be held directly liable for a

constitutional tort, that is, if his conduct has not satisfied the elements of that tort, the doctrine of

supervisory liability is now unavailable to relax those elements.

Nor does the elimination of supervisory liability spell the end of Bivens liability

premised upon a defendant’s inaction if such inaction satisfies the elements of a tort. As Colon

makes clear, nonfeasance – just like malfeasance – can be a basis for liability, and nothing in

Iqbal changed this rule. D’Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347 (S.D.N.Y. 2010)

22

(“Colon’s bases for liability are not founded on a theory of respondeat superior, but rather on a recognition that ‘personal involvement of defendants in alleged constitutional deprivations’ can be shown by nonfeasance as well as misfeasance.’” (quoting Colon, 58 F.3d at 873)); see, e.g., Bell v. Wolfish, 441 U.S. 520 (1979) (premising liability upon failure to protect from privately inflicted harms); cf. City of Okla. City v. Tuttle, 471 U.S. 808 (1985) (premising § 1983 liability of municipality upon failure to train its employees).
The defendants argue that, of the five forms of personal involvement described by Colon, only the first and the first half of the third survive Iqbal. The Second Circuit has never addressed this precise issue, and the district courts in this Circuit, as well as the other courts of appeals, have grappled with this question and reached conflicting results. Compare Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *5-6 (S.D.N.Y. June 26, 2009) (dismissing deliberate indifference claim against a supervisor, holding that Iqbal abrogated categories of supervisory liability that do not involve “active conduct”), with D’Olimpio, 718 F. Supp. 2d at 347 (holding that each of the five Colon categories for personal liability of supervisors may still apply as long as they are consistent with the elements of particular constitutional tort alleged); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) superseding, 633 F.3d 1191 (9th Cir. 2011), rehearing en banc denied, 659 F.3d 850 (9th Cir. 2011) (holding that plaintiff may state a claim against a supervisor for deliberate indifference based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her subordinates)8; Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (assuming, without holding, that a federal supervisory official may be liable in certain

8

Dissenting from denial of rehearing en banc, Judge O’Scannlain, joined by seven judges, argued

that the majority opinion “conflicts with Iqbal in . . . its far-reaching conclusions regarding supervisory liability.”

Starr v. Cnty. of Los Angeles, 659 F.3d 850, 855 (9th Cir. 2011).

23

circumstances even though he or she did not directly participate in the underlying unconstitutional conduct); Santiago v. Warminster Tp., 629 F.3d 121, 130 n.8 (3d Cir. 2010) (noting that Iqbal may restrict the incidents in which a “failure to supervise” will result in liability, but refraining from deciding the question); Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (holding a defendant-supervisor can be held liable if he “creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy” that causes a constitutional tort).
I don’t find this debate over what “remains” of the Colon standards for personal involvement after Iqbal to be useful. Iqbal removed supervisory liability from Bivens claims. This means that liability can no longer be shown by alleging simply personal involvement under Colon (and causation of the plaintiff’s injury) regardless of the kind of constitutional tort alleged. Direct liability is now the only option in Bivens claims – for supervisors and supervisees – and a plaintiff must now allege that the defendant’s conduct satisfies each of the elements of the tort alleged. But the demise of supervisory liability in Bivens claims does not mean that the forms of personal involvement under Colon can never constitute a basis for direct liability. If a defendant’s personal involvement under Colon satisfies the elements of a constitutional tort, that involvement may trigger liability.
For example, because the mens rea element of an Eighth Amendment violation is deliberate indifference, a supervisor – like any other defendant – can be held directly liable for deliberate indifference (the fifth form of personal involvement set forth in Colon), assuming his conduct meets the other elements of the tort. And, as Iqbal itself discussed, because the mens rea element of an equal protection claim is discriminatory intent, “purpose rather than knowledge is required to impose Bivens [direct] liability on [a] subordinate for unconstitutional discrimination;
24

the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” Iqbal, 556 U.S. at 677. Accordingly, if a supervisor, for example, created a policy or custom directing unconstitutional conduct (the third form of personal involvement set forth in Colon) because of discriminatory animus, and that policy or custom caused plaintiff’s injury, a supervisor may be held liable for that conduct. What is different after Iqbal is that the guiding question is no longer simply whether a plaintiff has pleaded personal involvement under Colon but whether a plaintiff has pleaded each of the elements of the constitutional tort alleged. The “factors necessary to establish a Bivens violation will vary with the constitutional provision at issue,” id. at 676, and what “remains” of Colon depends on the constitutional provision at issue.
3. The Qualified Immunity Standard Government officials performing discretionary functions are “shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether a right was clearly established, courts look to whether (1) the right was defined with reasonable clarity; (2) Supreme Court or Second Circuit precedent has confirmed the existence of the right; and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful. Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). The determination of whether the right at issue was clearly established “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). An officer is entitled to qualified immunity even when his actions were unlawful provided the constitutionality of his conduct was objectively debatable.
25

See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Taravella v. Town of Wolcott, 599 F.3d 129, 135 (2d Cir. 2010) (holding that “consideration of whether it was ‘objectively reasonable’ for a defendant to believe his actions were lawful . . . is indispensable” to the qualified immunity analysis); Danahy v. Buscaglia, 134 F.3d 1185, 1190 (2d Cir. 1998) (stating that immunity applies whenever “officers of reasonable competence could disagree on the legality of defendant’s actions”) (internal quotation marks omitted).
There was a time when the qualified immunity analysis had a prescribed order of operations: judges were directed to first decide whether the defendant’s conduct (as alleged by the plaintiff) violated a constitutional right; and only if the answer to that question was “yes” could they proceed to determine whether the right was “clearly established” at the time of the violation. Saucier, 533 U.S. at 201 (emphasis added). However, following the Supreme Court’s decision in Pearson, 555 U.S at 242, courts now have discretion to address those questions in reverse order, and to refrain from deciding the first if the asserted right was not clearly established. See Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). B. Claims One and Six: Conditions of Confinement
The MDC Detainees allege that the creation and the implementation of the harsh confinement policy violated their Fifth Amendment substantive due process rights. They assert Claim One against all defendants; Claim Six asserts a Fifth Amendment due process claim against only the MDC Defendants based on the strip searches.9 Both are Bivens claims seeking damages.10

9

Although Claim Six focuses solely on the strip searches and does not name the DOJ Defendants,

the factual allegations incorporated by reference into Claim One embrace the strip search allegations. I deem Claim

One to allege, inter alia, strip searches in violation of the Fifth Amendment against the DOJ Defendants.

10

Although, as discussed more fully below in relation to the free exercise-based Bivens claim, “the

Supreme Court has warned that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in

26

1. The Elements of the Claim
I consider plaintiffs’ substantive due process claim under the standard applicable
to pretrial detainees. See Turkmen I, 2006 WL 1662663, at *31-32, aff’d in part, vacated in part,
remanded, 589 F.3d 542 (2d Cir. 2009). For pretrial detainees, such a claim is governed by the
Due Process Clause of the Fifth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). In
an action challenging conditions or restrictions of pretrial detention he has purposefully imposed,
a Bivens defendant may be held liable if (1) with the intent to punish (mens rea) (2) he engaged
in conduct that caused the conditions or restrictions that injured the plaintiff (causation). Id. at
535; Iqbal v. Hasty, 490 F.3d 143, 169 (2d Cir. 2007), rev’d by Ashcroft v. Iqbal, 556 U.S. 662
(2009). If the plaintiff does not allege that the defendant verbally expressed an intent to punish,
punitive intent may be inferred from the nature of the conditions or restraints allegedly imposed.
Specifically, a court may consider “‘whether an alternative purpose to which [the condition] may
rationally be connected is assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned [to it].’” Wolfish, 441 U.S. at 538 (quoting Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-169 (1963)). Thus, “if a particular condition or restriction of
pretrial detention is reasonably related to a legitimate governmental objective, it does not,
without more, amount to ‘punishment.’” Id. at 539. In contrast, “if a restriction or condition is
‘new contexts’,” Arar v. Ashcroft, 585 F.3d 559, 582 (2d Cir. 2009) (en banc) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001)). The conditions-of-confinement claims do not present a new context. The Second Circuit has long assumed that mistreatment claims like those alleged here give rise to a Bivens claim. See Arar, 585 F.3d at 597 (Sack, J., dissenting) (citing cases). Moreover, as Judge Sack pointed out in dissent in Arar, when the Second Circuit reviewed essentially identical claims in Iqbal, it “did not so much as hint either that a Bivens remedy was unavailable or that its availability would constitute an unwarranted extension of the Bivens doctrine.” Id. Indeed, even the en banc majority in Arar, which concluded that extraordinary rendition was a new context (into which the Bivens remedy would not be extended), acknowledged that Bivens claims are already available for the harsh conditions of confinement alleged here. See id. at 580 (“In the small number of contexts in which courts have implied a Bivens remedy, it has often been easy to identify both the line between constitutional and unconstitutional conduct, and the alternative course which officers should have pursued. The guard who beat a prisoner should not have beaten him; . . . and the immigration officer who subjected an alien to multiple strip searches without cause should have left the alien in his clothes.”). Moreover, in Turkmen I, I rejected defendants’ arguments that a Bivens remedy should not be extended, and I see no reason to revisit that determination here. 2006 WL 1662663, at *29.
27

not reasonably related to a legitimate goal – if it is arbitrary or purposeless – a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id.
With respect to conditions of pretrial detention not alleged to be purposefully caused by the defendants, which I refer to as environmental conditions, a Bivens defendant may be held liable on a substantive due process claim if he (1) caused injury to the plaintiff through his (2) deliberate indifference to a substantial risk that the plaintiff would be deprived of a basic human need, such as food, clothing, shelter, medical care, sleep, and reasonable safety. See Iqbal, 490 F.3d at 169; Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009); Farmer v. Brennan, 511 U.S. 825, 837 (1994); DeShaney v. Winnebago Cnty. Dep’t. of Soc. Servs., 489 U.S. 189, 200 (1989). A defendant who is deliberately indifferent to a risk must be subjectively aware of that risk. Caiozzo, 581 F.3d at 71.
2. The Sufficiency of the Allegations The plaintiffs allege that the defendants violated their substantive due process
rights. Specifically, they complain that the defendants caused them to be, inter alia, constructively denied the opportunity to exercise; denied sleep; repeatedly placed in handcuffs and shackles; deprived of hygienic implements, such as soap and toilet paper; subjected to extremely cold conditions; deprived of sufficient food; frequently verbally and physically abused; and repeatedly strip-searched (collectively, the “challenged conditions”).
The plaintiffs advance different theories of liability with respect to the DOJ defendants and the MDC defendants. They seek to hold the MDC defendants liable for creating, or being deliberately indifferent to, the challenged conditions. In contrast, they seek to hold the DOJ defendants liable for creating the harsh confinement policy, which directed that the
28

Detainees be held in restrictive conditions such that they felt maximum pressure to cooperate with law enforcement. Although that policy did not expressly contemplate the specific challenged conditions, plaintiffs allege that it caused those conditions because the challenged conditions were created in the implementation of the harsh confinement policy.
Consistent with my ruling in Turkmen I, 2006 WL 1662663, at *32-33, the defendants do not contest that the purpose of the challenged conditions was to punish and/or that the challenged conditions presented a serious risk of depriving the Detainees of their basic human needs.11 Instead, the defendants, citing different rationales, argue that they should not be held responsible for injuries caused by those conditions. In other words, at issue on these motions to dismiss is not whether someone may be held liable in a Bivens action for the challenged conditions; it is whether each defendant is a proper defendant in such an action.
a. The DOJ Defendants Plaintiffs contend that the DOJ defendants should be held liable because (1) with the intent to punish the Detainees (2) they created the harsh confinement policy, which caused the challenged conditions that injured the Detainees. The DOJ defendants contend that, because the policy did not itself direct unconstitutional action, it cannot be the basis for imposing liability now that supervisory liability has been eliminated. In other words, these defendants argue that to hold them liable simply because their facially constitutional policy was unconstitutionally applied would be to hold them responsible not for their own acts but for the acts of their supervisees.

11
punish.

Accordingly, I do not revisit the question of whether the challenged conditions evince an intent to

29

I agree that holding the DOJ defendants liable solely on the basis that the MDC defendants unconstitutionally applied their facially constitutional policy would be the equivalent of imposing respondeat superior liability – a form of supervisory liability discarded in Iqbal. Indeed, one could describe almost any act taken by the MDC defendants as having been caused by the DOJ defendants, and holding the latter responsible for the former’s acts without more than but-for causation would make a master responsible for the acts of his servants. Cf. City of Okla. City v. Tuttle, 471 U.S. 808, 823 (1985) (“Obviously if one retreats far enough from a constitutional violation some municipal ‘policy’ can be identified behind almost any such harm inflicted by a municipal official; for example, [a city police officer] would never have killed [the plaintiff] if [the city] did not have a ‘policy’ of establishing a police force.”); Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011) (finding that a “stringent standard of fault” is necessary to connect a municipal policy with municipal employees’ unconstitutional acts “lest municipal liability under § 1983 collapse into respondeat superior.”).
However, a substantive due process violation requires more than simply but-for causation. It also requires an intent to punish, and when punitive intent motivates a facially constitutional policy that is implemented by the creation of unconstitutionally punitive conditions of confinement, imposing liability upon the policymaker is very different from imposing respondeat superior liability. Cf. Brock v. Wright, 315 F.3d 158, 167 (2d Cir. 2003) (permitting liability where unconstitutional acts were taken in implementation of policy that was ambiguous on its face but was interpreted and intended by the policymaker to call for those acts). A facially constitutional policy that was expressly intended to cause the kind of constitutional violation it ultimately caused constitutes behavior upon which direct liability may properly be premised.
30

I conclude that plaintiffs have failed to state a claim that the DOJ defendants violated their substantive due process rights because the Complaint does not plausibly plead that the DOJ defendants possessed punitive intent. Although an inference of punitive intent may be drawn from the conditions themselves, in evaluating the sufficiency of the allegations against the DOJ defendants it is useful to bear in mind what the plaintiffs do not allege. They do not allege that the DOJ defendants intended that the MDC defendants create the punitive and abusive conditions in which the plaintiffs were detained. Nor do they allege that the DOJ defendants were even aware of those conditions. Rather, they simply contend that the unconstitutional conditions of confinement were the “direct result” of the DOJ defendants’ harsh confinement policy, and particularly of their directive to “exert maximum pressure on” the detainees, who “needed to be encouraged in any way possible to cooperate.” ¶ 61. Plaintiffs’ counsel contended at oral argument that those marching orders “encourage[d] illegal means” of obtaining detainee cooperation, which in fact were used, and that encouragement supports an inference at this stage that these defendants intended the resulting detainee abuse. Oral Arg. Tr. 41, ECF No. 759. In effect, and plaintiffs’ counsel conceded as much at oral argument, plaintiffs would have me infer from the DOJ defendants’ failure to specify that the harsh confinement policy should be carried out lawfully that they intended to punish the plaintiffs. This I cannot reasonably do.
“Generally, a supervisory official is entitled to assume that subordinates will pursue their responsibilities in a constitutional manner.” Smiley by Smiley v. Westby, No. 87 Civ. 6047, 1994 WL 519973, at *8 (S.D.N.Y. Sept. 22, 1994); cf. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065-66 (2d Cir. 1989) (defendant could not be held liable for delegating power to supervisee who acted unconstitutionally in exercising that power because defendant could rely on supervisee to adhere to the Constitution). The DOJ defendants were entitled to expect that
31

their subordinates would implement their directions lawfully, and I cannot reasonably infer that the failure to make that expectation explicit suggests punitive intent. Accordingly, I grant the motion to dismiss plaintiffs’ conditions-of-confinement claims with respect to these defendants.
b. The MDC Defendants The plaintiffs seek to hold the MDC defendants responsible for the challenged conditions, some of which were created as a matter of express policy (e.g., regular handcuffing and shackling, deprivation of hygienic implements, strip-searches, constructive denial of exercise) and others of which were not (e.g., verbal and physical abuse, sleep deprivation). I refer to the former group of conditions as the “official conditions” and the latter group as the “unofficial abuse.” With respect to the official conditions, the plaintiffs argue that the MDC defendants (1) created the challenged conditions (2) with the intent to punish. With respect to the unofficial abuse, the plaintiffs contend that all the MDC defendants except Zenk12 (1) caused plaintiffs’ injuries through (2) their deliberate indifference to the risk that such abuse would occur.13

12

Plaintiffs “do not seek to hold Defendant Zenk responsible for the abuses that occurred [i]n the

AMDAX [SHU] beyond those imposed as a matter of policy.” Pls.’ Mem. Opp. Mot. to Dismiss 41 n.15, ECF No.

749. In addition, plaintiffs do not assert against Zenk any claims arising from activities prior to April 22, 2002, the

date he became Warden of the MDC.

13

The archetypal substantive due process claim for environmental conditions is a claim against

prison officials for failing to protect the plaintiff against privately inflicted harms. As the Supreme Court has

explained, government actors do not generally have a duty to protect persons from private harms, but when the

government takes a citizen into its care, such a “duty to assume some responsibility for his safety and general well-

being” arises. DeShaney, 489 U.S. at 200. The “rationale for this principle is simple enough: when the State by the

affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself,

and at the same time fails to provide for his basic human needs – e.g., food, clothing, shelter, medical care, and

reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment and the Due

Process Clause.” Id. Accordingly, when a government official is deliberately indifferent to known risks to a

prisoner’s basic human needs and yet fails to discharge his duty to protect, he may be held liable under the

Substantive Due Process Clause. See Wolfish, 441 U.S. at 335-36. In this case, plaintiffs allege that the MDC

defendants failed to protect them from harms inflicted by their subordinates – i.e., not private individuals but

government employees under their supervision. The logic of Deshaney and Wolfish applies with just as much force

to this kind of claim. Thus, because a government official may be held liable for his inaction when he is deliberately

indifferent to the known risk of private harms to a prisoner, he may be held liable when he is deliberately indifferent

32

The Complaint states a plausible claim against all of the MDC defendants for the official conditions. The plaintiffs allege that Hasty ordered the creation of the ADMAX SHU and ordered two of his subordinates, Lopresti and Cuciti, to design extremely restrictive conditions of confinement for those assigned to it; that Cuciti and Lopresti created the written policy setting forth the official conditions; that Hasty and Sherman then approved and implemented that written policy; and that, when Zenk replaced Hasty, he approved and implemented the conditions created under Hasty’s watch. These allegations establish that each defendant was a cause of the official conditions, and the conditions themselves permit an inference of punitive intent with respect to every defendant because every defendant had a hand in creating or implementing them. See Wolfish, 441 U.S. at 538-39.
The plaintiffs have also stated a claim against all of the MDC defendants for the unofficial abuse. No one questions that the abuse constituted a grave risk to plaintiffs’ reasonable safety, and the Complaint plausibly alleges that all of the defendants were deliberately indifferent to – that is, subjectively aware of – that risk and yet did nothing to mitigate it. Indeed, plaintiffs allege that Hasty “was made aware of the abuse that occurred through inmate complaints, staff complaints, hunger strikes, and suicide attempts,” ¶ 24; Zenk and Sherman made rounds in the ADMAX SHU and were aware of the abusive conditions there; Lopresti was frequently present in the ADMAX SHU, regularly reviewed documentation of some of the abuses, and received numerous complaints from the Detainees about abuse and mistreatment; Cuciti made rounds in the ADMAX SHU, reviewed logs created by the unit, and
to a known risk of harm at the hands of his own subordinates. This is not supervisory liability or even liability that arises from the discharge of supervisory responsibilities. The same theory of liability applies identically to supervisors and subordinates alike: When an officer is deliberately indifferent to a known risk of any threat (public or private) to a prisoner’s basic human needs and fails to act to mitigate that risk, he may be liable.
33

heard complaints from the Detainees about the unofficial abuse; and all of the MDC defendants failed to take steps to rectify the abuse. These specific factual allegations suffice to raise the reasonable inference that the MDC defendants had the requisite mens rea and that their inaction in the face of the unofficial abuse caused plaintiffs’ injuries.
3. Qualified Immunity The defendants are not entitled to qualified immunity. It was clearly established
in 2001 that punitive conditions of confinement could not be imposed upon unconvicted detainees. Iqbal, 490 F.3d at 169; Turkmen I, 2006 WL 1662663, at *34. See Bell, 441 U.S. at 538; Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). The unique context of the 9/11 attacks did not render the law unclear. As the Second Circuit has observed, the “right not to be subjected to needlessly harsh conditions of confinement” does “not vary with surrounding circumstances.” Iqbal, 490 F.3d at 159. This right was among those that were “clearly established prior to 9/11, and [it] remained clearly established even in the aftermath of that horrific event.” Id. at 160.
The MDC defendants argue that even if the law was clearly established, they should be granted qualified immunity because, in holding the plaintiffs in the ADMAX SHU, they were following the facially valid orders of their superiors at the BOP. Specifically, they suggest that their BOP superiors designated the plaintiffs for restrictive confinement, and that they were entitled to assume that their BOP superiors did so because they suspected the plaintiffs of links to terrorism. Therefore, they contend, reasonable officers in their position would not have known that their behavior violated clearly established law. But this argument conflicts with
34

the express allegations in the Complaint14 that the harsh confinement policy was facially discriminatory and that the MDC defendants were informed that law enforcement had no information linking the plaintiffs to terrorism. Accordingly, I find the argument without merit and deny qualified immunity. C. Claim Two: Equal Protection Claims
Plaintiffs bring a Bivens claim for violation of their equal protection rights under the Due Process Clause of the Fifth Amendment. 15 They contend that defendants created and implemented the harsh confinement policy because of their race, religion, and national origin. Specifically, plaintiffs assert that the harsh confinement policy was facially discriminatory, as it was expressly directed at Muslim and Arab men.16
1. The Elements of the Claim To prevail at this stage on their equal protection claim, plaintiffs must plausibly
allege that defendants’ (1) discriminatory animus (2) caused plaintiffs’ injuries. Washington v. Davis, 426 U.S. 229, 240 (1976); Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); cf. Hartman v. Moore, 547 U.S. 250, 259-61 (2006) (explaining, in the context of First Amendment retaliatory discharge claims, that discriminatory animus is insufficient if the complained-of adverse action would have occurred anyway). They may plead discriminatory animus in any of

14

The defendants contend that the plaintiffs cannot partially incorporate the OIG Reports, i.e., that they must

incorporate them wholesale rather than only to the extent they do not conflict with the allegations of the Complaint.

I reject this suggestion. There is a difference between disputing the words that appear in an incorporated document

(impermissible) and disputing the truth of those words (permissible). Although plaintiffs could not incorporate the

OIG Reports and then allege that they do not say what they plainly say, they need not incorporate all of the

allegations in the Reports for their truth. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

15

The availability of a Bivens remedy for violations of the Equal Protection Clause has been conclusively

established. See Davis v. Passman, 442 U.S. 228 (1979).

16

Because the Passaic plaintiffs were not injured by the alleged discrimination – they were held in the general

population of the Passaic Jail and thus cannot claim that they were held in harsher conditions than they would have

been held if not for their race, religion, and/or national origin – I dismiss their equal protection claims.

35

three ways. First, they may plead that defendants adopted or implemented a policy that classifies on the basis of race, religion, or national origin. A “policy is discriminatory on its face if it expressly classifies persons” on the basis of such an unlawful characteristic. Hayden, 180 F.3d at 48. Second, they may plead that a facially neutral policy was applied to them in an intentionally discriminatory fashion. Id. Third, they may plead that a facially neutral policy was motivated by discriminatory animus and its application resulted in a discriminatory effect. Id.
Plaintiffs follow the first route, contending that the harsh confinement policy, which the DOJ defendants created, expressly dictated that Arab and Muslim noncitizens should be detained in restrictive conditions. Oral Arg. Tr. 59-61, ECF No. 759. They allege that the MDC defendants then implemented that facially discriminatory policy by placing Muslim and Arab noncitizens in the ADMAX SHU because of their race, religion, and/or national origin, causing injury to plaintiffs. Accordingly, plaintiffs must plausibly allege that the DOJ defendants adopted and the MDC defendants implemented such a facially discriminatory policy, which injured the plaintiffs.
2. The Sufficiency of the Allegations The Complaint alleges that Ashcroft, Mueller, and Ziglar created, and Hasty,
Zenk, Sherman, Lopresti, and Cuciti implemented, the detention policy, which was expressly directed at Arab and Muslim men.17 Although only the harsh confinement policy is challenged here, the Complaint alleges that each piece of the detention policy – including the initial arrest,

17

See, e.g., ¶ 7 (“Plaintiffs’ and class members’ race, religion, ethnicity, and national origin played a decisive

role in Defendants’ decision to detain them initially and to subject them to punitive and dangerous conditions of

confinement . . . .”); ¶ 282 (“In subjecting Plaintiffs and class members to harsh treatment not accorded similarly-

situated non-citizens, Defendants . . . singled out Plaintiffs and class members based on their race, religion, and/or

ethnic or national origin . . . .”); ¶ 48 (“Ashcroft, Mueller, and Ziglar’s decision to hold [the Detainees] for criminal

investigation without evidence of any ties to terrorism was based on their discriminatory notion that all Arabs and

Muslims were likely to have been involved in the terrorist attacks, or at least to have relevant information about

them.”).

36

“of interest” treatment, and application of the hold-until-cleared policy – overtly targeted Arab and Muslim individuals. Such allegations “can provide the framework of a complaint, [but] they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. And after careful review of the Complaint, taking due note of the Supreme Court’s analysis in Iqbal, I conclude that the facts alleged adequately support the plaintiffs’ claims against the MDC defendants, but not against the DOJ defendants.
a. The DOJ Defendants The Complaint fails to allege facts sufficient to raise a reasonable inference that Ashcroft, Mueller and Ziglar created the alleged harsh confinement policy. To be sure, there are ample allegations that these defendants – particularly Ashcroft and Mueller – classified persons on the basis of race, religion and national origin for purposes of arrest and detention. See, e.g., ¶¶ 40, 41, 43, 44. But those alleged actions do not constitute equal protection violations standing alone. For example, Ashcroft’s direction to arrest all male immigration violators between the ages of 18 and 40 from a Middle Eastern country did not, in light of the executive branch’s plenary power over immigration, amount to an equal protection violation. See Turkmen I, 2006 WL 1662663, at *41-43; Turkmen II, 589 F.3d at 550. I have considered whether the discriminatory animus suggested by that direction and the other allegations – regardless of whether they are actionable in themselves – may properly be relied on to suggest animus on the part of Ashcroft, Mueller, and Ziglar with respect to the sole equal protection violation alleged, i.e., the facially discriminatory harsh confinement policy. But there is a critical distinction between a decision to round up violators of the immigration laws and a decision to treat them harshly once they are in federal custody. There is no “equal protection right to be free of selective enforcement of the immigration laws based on national origin, race or religion.”
37

Turkmen II, 589 F.3d at 542. Because of the broad powers of the political branches in the areas of immigration and naturalization, in that one setting discrimination on grounds of race, religion and national origin is not invidious. See Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, 490-91 (1999). There is indeed an equal protection right to be free of excessively harsh conditions of confinement on those bases, but I am reluctant to allow allegations of lawful conduct to support an inference that the DOJ Defendants created the facially discriminatory confinement policy alleged here.
Plaintiffs’ allegations fall short of raising a reasonable inference that Ashcroft, Mueller, and Ziglar created the alleged overtly discriminatory harsh confinement policy. For example, the allegation that the head of the New York FBI field office thought that national origin and religion were relevant to the PENTTBOM investigation requires inference upon inference – that the office head thought these traits were relevant because of Ashcroft, Mueller, or Ziglar’s orders and that discrimination with respect to the PENTTBOM investigation translated into discrimination with respect to conditions of confinement – and those inferences are very weakly suggested. Similarly, that Ashcroft, Mueller, and Ziglar were aware that Arab and Muslim noncitizens encountered during the PENTTBOM investigation were, without individualized assessment, automatically treated as “of interest” potentially raises an inference these defendants harbored discriminatory animus. However, because the same allegation is also consistent with a policy to treat everyone encountered during the PENTTBOM investigation as “of interest,” this allegation standing alone would be insufficient to render the plaintiffs’ equal protection claim plausible.
In making this determination, I acknowledge that the factual allegations before me now are distinguishable from those alleged in Iqbal, where the Supreme Court determined that
38

the plaintiffs failed to state a plausible claim. 556 U.S. at 683. In Iqbal, the plaintiffs alleged that Ashcroft and Mueller designated them as of high interest to the PENTBOMM investigation and held them in the ADMAX SHU because of discriminatory animus. Id. at 668-69. However, the only relevant factual allegations plaintiffs made at the time were (1) that Ashcroft and Mueller approved of holding “of high interest” detainees in harsh conditions of confinement until they were cleared of suspicion and (2) that thousands of Arab and Muslim individuals were held in harsh conditions of confinement. Id. at 681. The Court concluded that the former allegation plausibly suggested only that “the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.” Id. at 683. And it found that the latter allegation, although consistent with discriminatory animus, was not suggestive of such animus because “[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.” Id. at 682.
Now, however, the plaintiffs have amplified their claim with more factual allegations. For example, the Complaint alleges that Ashcroft, Mueller, and Ziglar knew that law enforcement lacked any information tying the Detainees to terrorism, suggesting that the harsh confinement policy was not simply about keeping suspected terrorists in secure conditions. And plaintiffs allege that the few individuals initially detained in harsh conditions who were not Arab or Muslim were cleared quickly or moved into the general population without clearance, demonstrating that at least some non-Arab and non-Muslim individuals were treated differently than the MDC Detainees. I find the issue to be a close one, but after applying the Iqbal pleading
39

standard I conclude that these allegations, viewed together with all the allegations in the
Complaint, do not plausibly suggest that the DOJ Defendants purposefully directed the detention
of the plaintiffs in harsh conditions of confinement due to their race, religion or national origin.
b. The MDC Defendants
With respect to Hasty, Zenk, Sherman, Lopresti, and Cuciti, I conclude that the
Complaint raises the reasonable inference that they effectuated the harsh confinement policy and
held the Detainees in restrictive conditions of confinement because of their race, religion, and/or
national origin. In so determining, I rely upon the allegations set forth above, as well as the
allegations that:
 Hasty, Zenk, Sherman, Lopresti, and Cuciti created the harsh conditions at the ADMAX SHU and either personally witnessed or received complaints about how the MDC Detainees were treated there. ¶¶ 24-28.
 The Detainees were placed in the ADMAX SHU without hearings or individualized determinations of dangerousness. ¶¶ 68-74.
 Lopresti signed a document that was prepared by Cuciti, and approved by Hasty and Sherman, which untruthfully stated that the executive staff at MDC had classified the “suspected terrorists” as “High Security” based on an individualized assessment of their “precipitating offense, past terrorist behavior, and inability to adapt to incarceration.” ¶ 74.
 Hasty, Sherman, and Lopresti continued to hold the MDC Detainees in the ADMAX SHU even after learning that the FBI had not developed any information to tie them to terrorism. ¶ 69.
 Staff verbally abused the MDC Detainees by, for example, referring to them as terrorists, insulting their religion, and referring to them as camels. ¶¶ 109-10. Hasty too referred to the Detainees as terrorists. ¶¶ 77, 109.
 Staff refused the MDC Detainees’ requests to keep the Koran in their cells, to be provided with Halal food, to be told the time of day so they could pray at proper times, and to be told the date so that they could acknowledge Ramadan. ¶ 132-34. They also frequently interrupted the MDC Detainees’ prayers by banging on cell doors, screaming derogatory anti-Muslim comments, videotaping them, and telling them to “shut the fuck up,” among other things. ¶ 136.
40

In light of these factual allegations, and because there is no reasonable dispute that the MDC defendants’ conduct caused plaintiffs’ injuries, I conclude that the Complaint pleads a plausible equal protection claim against the MDC defendants.
3. Qualified Immunity Qualified immunity is unavailable to any of the MDC defendants. It was clearly
established in 2001 that creating and implementing a policy expressly singling out Arabs and Muslims for harsh conditions of confinement violates their Fifth Amendment equal protection rights. See Iqbal, 490 F.3d at 174 (“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.” (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); Hayden, 180 F.3d at 48 (stating that racial classifications violate the Equal Protection Clause where motivated by racial animus and having a discriminatory effect). In addition, insofar as the MDC defendants seek qualified immunity on the theory that they were following facially valid orders, this gets them nowhere; the Complaint alleges that the harsh confinement policy was facially discriminatory, not facially valid. The defendants are not entitled to qualified immunity on plaintiffs’ equal protection claim. D. Claims Four and Five: Interference with Communications
The MDC plaintiffs allege that Ashcroft, Mueller, and Ziglar created an explicit policy to limit MDC Plaintiffs’ and class members’ access to the outside world and that the MDC Defendants implemented that policy in violation of the First Amendment and Fifth
41

Amendment substantive due process rights (“communications claims”).18 ¶¶ 288-96; Pls.’ Mem. Opp. Mot. to Dismiss 69, ECF No. 749. These communications restrictions are alleged to have taken multiple forms: (1) an express policy to hold them incommunicado until mid-October 2001 despite the lack of any basis to believe they had any link to terrorism; (2) the MDC guards effectively denied them one-legal call per week and one social visit per month after the complete communications blackout was lifted; and (3) the MDC defendants permitted the video and audiotaping of the detainees’ visits with their attorneys, including the use of sound recording.
1. Qualified Immunity When qualified immunity is raised in a motion to dismiss, court must determine (1) whether the alleged facts demonstrate that a defendant violated a constitutional right; and, if yes, (2) whether this constitutional right was clearly established at the time of the challenged action. Saucier, 533 U.S. at 201. As discussed above, following the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223 (2009), courts have discretion to elect which prong of the qualified immunity inquiry to consider first. See Pearson, 555 U.S. at 236 (“The judges of the district courts . . . should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). When a court grants immunity at step two of the qualified-immunity analysis, it is within its discretion to decline to address the constitutionality of the defendants’ conduct. Pearson identified a number of factors that might influence a court to exercise its discretion not to reach the constitutional question: (1) the constitutional violation

18

The Complaint also appears to raise a due process claim for defendants’ alleged interference with their

right to access the courts. ¶ 294. As plaintiffs’ counsel conceded at oral argument, see Oral Arg. Tr. at 56, I

dismissed that claim in Turkmen I, 2006 WL 1662663, at *48-49, and I see no reason to revisit that decision. To the

extent plaintiffs press a claim with respect to their right of access to the courts, it is dismissed.

42

question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the . . . claim . . . may be hard to identify”; (5) tackling the first element “may create a risk of bad decisionmaking” due to inadequate briefing; (6) discussing both elements risks “bad decisionmaking” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (7) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” 555 U.S. at 236-42.
a. The Initial Communications Blackout The inquiry into whether a particular right is clearly established for purposes of qualified immunity looks to “whether it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted,” Saucier, 533 U.S. at 202. This is a context-specific inquiry. The question, therefore, is whether an officer could believe it was objectively reasonable – in light of the specific context – to impose a complete communications ban where, as here, the officers have no basis to form any individualized suspicion that any detainee has any connection to terrorism. No court has considered whether – in exigent circumstances analogous to those present here – access to telephones or to outside persons can be curtailed for persons detained for civil immigration violations. As plaintiffs’ counsel conceded during oral argument, in the abstract it is (and was in 2001) hard to draw the line between communications restrictions that
43

are constitutional and those that are not. See Oral Arg. Tr. at 49-52. For example, counsel agreed that it may be permissible to impose an “emergency lockdown . . . for a day,” but argued that it is clearly established that such a lockdown is unconstitutional when imposed for a longer period. Oral Arg. Tr. at 51. I disagree. Even assuming a lengthier blackout crossed the threshold from permissible to impermissible conduct, I cannot agree that this was so clearly established that qualified immunity is unavailable.19
In reaching this conclusion, I take guidance from the Second Circuit’s decision in Iqbal, 490 F.3d at 143, regarding the significance of the post-9/11 context. Specifically, the court stated that most of the rights asserted here “do not vary with the surrounding circumstances.” Id. at 159. That category of rights, the court observed, includes “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.” Id. On the other hand, “the gravity of the situation” in the aftermath of the attacks caused the Second Circuit to “recognize that some forms of governmental action are permitted in emergency situations that would exceed constitutional limits in normal times.” Id. The court suggested as an example the Fourth Amendment right to be free from unreasonable searches. Whereas a detainee’s “right not to be needlessly harassed and mistreated in the confines of a prison cell by repeated strip and body-cavity searches” and “the right to be free from excessive force and not to be subjected to ethnic or religious discrimination” are not diminished by exigent circumstances, the court observed that those circumstances might justify an otherwise impermissible warrantless entry into a home. Id. at 159-60.

19

I acknowledge that I saw this issue differently in Turkmen I, 2006 WL 1662663, at *26; however, taking

cues both from the Second Circuit’s decision in Iqbal, 490 F.3d at 159 and the briefing and oral argument on this

motion, I have revisited these earlier conclusions.

44

In addition to its potential effect on the lawfulness of government conduct, the

Second Circuit held that the post-9/11 context has an important bearing on whether law

enforcement officers might be justified in believing, however incorrectly, that their actions were

lawful. Id. at 160. Specifically, in reversing on qualified immunity grounds my decision

upholding plaintiffs’ procedural due process claim, the court referred to the national security

concerns at the time in determining that the procedural due process right was not firmly

established:

[U]ncertainty 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. [Mitchell v.] Forsyth, 472 U.S. [511] at 534-35 [(1985)] (granting Attorney General qualified immunity for warrantless wiretapping for national security purposes despite prohibitions of warrantless wiretapping in criminal context).

Id. at 167

Assum

ing arguendo that plaintiffs’ had a right to make phone calls and to be in

contact with persons outside the detention facility, and that the right was violated, I conclude that

officers of reasonable competence could nonetheless have disagreed about whether their conduct

violated that right in light of national security concerns in the aftermath of the 9/11 attacks.

Considering the context and the lack of clear case law from the Supreme Court and the Second

45

Circuit, reasonable officers could believe that such a policy – though crude and overbroad – was permissible. Accordingly, I find qualified immunity on these claims for all Defendants.20

b. The Interference with Access to Families and Friends

It was not clearly established in September of 2001 that social calls and visits

could not be carefully restricted, as a matter of policy, for inmates and detainees in

administrative segregation. See Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (Michigan’s

severely restrictive visitation program did not violate the Constitution because it constituted “a

proper and even necessary management technique to ensure compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose.”).21 This

conclusion is not changed even assuming, as I must, that the restrictions were imposed here

without any individualized assessment of the need for them or suspicion of any connection to

terrorism. Even if it were clearly established that the measures alleged here could not be taken

lawfully in the absence of individualized intelligence linking each detainee to a security threat,

reasonable officers could have concluded otherwise.

The frequency of attorney visits is governed by a regulation stating that “The

Warden generally may not limit the frequency of attorney visits.” 28 C.F.R. § 543.13(b)

20

I do not reach the merits of whether Plaintiffs’ allegations of an express policy to hold the

plaintiffs incommunicado states a claim under the First and Fifth Amendments. As discussed above, I am not

required to. Moreover, I am mindful of the Supreme Court’s admonition in Camreta v. Greene, 131 S. Ct. 2020

(2011), that lower courts should “think hard, and then think hard again” before unnecessarily deciding the merits of

a constitutional issue. Id. at 2032. In light of the lack of guidance from the Second Circuit and the Supreme Court

on constitutional restrictions on communication rights of pretrial detainees, I conclude that it is appropriate to

decline to reach the constitutional question.

21

Several district courts in the Second Circuit have since held that various types of restrictions on

inmate social contacts do not violate the Constitution. See, e.g., Griffin v. Cleaver, 2005 WL 1200532, at *6 (D.

Conn. 2005) (inmate had “no constitutional right to telephone use, social visits and commissary privileges”); Allah

v. Poole, 506 F. Supp. 2d 174, 184-85 (W.D.N.Y. 2007) (not clearly established that a prison could not forbid

inmates from speaking languages other than English); Zimmerman v. Burge, 2008 WL 850677, at *3 (N.D.N.Y.

March 28, 2008) (denial of contact visits for drug-addicted inmate for indefinite period of time exceeding two and

one-half years bore rational relationship to legitimate penological interests and therefore did not violate Eighth

Amendment).

46

(emphasis added). The regulation permits the warden to “set the time and place for visits” and to “make exceptions according to local conditions or for an emergency situation demonstrated by the inmate or visiting attorney.” I owe substantial deference to the institution’s interpretation of the regulation. See Bell, 441 U.S. at 547 (“Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal discipline and to maintain institutional security.”) In light of these considerations, and given the breadth of the discretion conferred by the regulation and the lack of case law interpreting the term “generally,” I conclude that the alleged limitations on the frequency of attorney visits and phone calls did not violate clearly established law. See Schick v. Apker, 2009 WL 2016933, at *9 (S.D.N.Y. March 5, 2009) (collecting pre-2001 cases); Smith v. O’Connor, 901 F. Supp. 644, 648 (S.D.N.Y. 1995) (while inmate has constitutional right of access to counsel, this access need not be more than “reasonable”); Bellamy v. McMickens, 692 F. Supp. 205, 214 (S.D.N.Y. 1988) (no constitutional violation where plaintiff “does not allege that he was denied absolute access to his counsel by the restrictions on his phone calls, but rather that he was delayed in communicating with his attorney”) (citing Lock v. Jenkins, 464 F. Supp. 541, 551 (N.D. Ind. 1978) (provision of weekly calls with counsel was sufficient to satisfy Constitution)).
Even though “[a] prison inmate’s rights to communicate with family and friends are essentially First Amendment rights,” Morgan v. LaVallee, 526 F.2d 221, 225 (2d Cir. 1975), the uncertain contours of those rights, taken together with the national security concerns that permeated the context, sufficed to raise a legitimate question among government officials as to whether the First Amendment required the prison officials to afford the Detainees greater access
47

to legal and social calls. Iqbal, 490 F.3d at 167-68. Accordingly, I find that there is qualified immunity for all Defendants for these claims.
c. Video-taping attorney visits The most troubling strand of the interference-with-communications claim is the plaintiffs’ allegation that the guards overheard or recorded attorney-client telephone calls and meetings. With some reluctance, I nonetheless conclude that it was insufficiently clear that civil immigration detainees’ discussions with their attorneys may not be subject such monitoring under any circumstances, and that qualified immunity is therefore available. Plaintiffs point to no case law from the Second Circuit or the Supreme Court – nor can I find any – that renders it clear that such a policy violates federal constitutional rights. In so holding, I am mindful that there is no need for precedents exactly on point in order for a right to be clearly established. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (holding that a constitutional right is clearly established, if “its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.”). Rather, it is sufficient if, in light of the pre-existing law, “the unlawfulness [is] apparent.” Id. (internal citations and quotation marks omitted); See also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“We do not require a case directly on point . . .”). Plaintiffs point out that the recording of inmates’ meetings with attorneys is prohibited by 28 C.F.R. § 543.13(e), but “[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.” Davis v. Scherer, 468 U.S. 183, 194 (1984). The claim for damages here asserts a violation of the First and Fifth Amendments, not § 543.13(e), and it was not clearly established that video and auditory recordings of attorney visits with civil immigration detainees offends the
48

Constitution. But see Lonegan v. Hasty, 436 F. Supp. 2d 419, 422 (E.D.N.Y. 2006) (denying qualified immunity because the regulation at issue “was in effect during the time period at issue and remains in effect at present,” rendering the prohibition clearly established); Malik v. Hershberger, 1995 WL 135558, at *7 (S.D.N.Y. March 29, 1995) (clearly established that guards could not “aural[ly] monitor . . . an attorney-client conversation”). Here again, I conclude that the context of the alleged claims has a legitimate impact on the range of conduct that prison officials could reasonably have believed was justified in the interests of national security. Iqbal, 490 F.3d at 167.22 F. Claim Three: Interference with Religious Practice
The plaintiffs23 allege that the DOJ defendants’ creation and the MDC defendants’ implementation of the harsh confinement policy violated their free exercise rights under the First Amendment. Specifically, they contend that the defendants intentionally burdened the exercise of their religion by (1) subjecting them to verbal and physical abuse; (2) denying them Halal food; (3) refusing to let them keep a Koran in their cells; and (4) interfering with their daily prayer requirements. They assert this claim against all defendants.
1. The Availability of a Bivens Remedy In Iqbal, the Supreme Court assumed without deciding that a Bivens claim is available to
remedy a deprivation of a prisoner’s free exercise rights, but the Court’s opinion suggested

22

Because I find that qualified immunity is available, I need not decide whether a Bivens remedy is

available for these communications-based claims.

23

Sachdeva and Bajracharya do not assert this claim at all, and Turkmen asserts this claim only

against the DOJ defendants.

49

skepticism on the issue.24 Defendants contend that a damages remedy under Bivens is not available, and thus I must first decide whether to extend Bivens to this new context.
Bivens held that the Fourth Amendment implied a damage remedy against an officer who violated it. Bivens, 403 U.S. at 389. The remedy was extended by Davis v. Passman, 442 U.S. 228 (1979) to a former congressional employee’s claim under the equal protection component of the Fifth Amendment Due Process Clause based on her employer’s sex discrimination, and again by Carlson v. Green, 446 U.S. 14 (1988) to a federal prisoner’s Eighth Amendment claim based on deliberate indifference to his medical needs. But in the 24 years “[s]ince Carlson, the Court has had to decide in several different instances whether to imply a Bivens action. And in each instance it has decided against the existence of such an action.” Minneci v. Pollard, 132 S. Ct. 617, 622 (2012). Moreover, two members of the Court have repeatedly described Bivens as “a relic of the heady days in which this Court assumed commonlaw powers to create causes of action by constitutional implication,” which they would end by limiting the Bivens damages remedy “to the precise circumstances” of the three cases in which it was implied. Id. at 626 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) (internal quotation marks omitted). Nevertheless, for the reasons discussed

24

The Court wrote as follows on the subject:

Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability “to any new context or new category of defendants.” That reluctance might well have disposed of respondent’s First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Petitioners do not press this argument, however, so we assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens.

Iqbal, 556 U.S. at 675 (some citations and internal quotation marks omitted).

50

below, I hold that Bivens should be extended to afford the plaintiffs a damages remedy if they prove the alleged violation of their free exercise rights.
For new contexts in which a Bivens remedy has not yet been recognized, deciding the question involves a two-part inquiry: (1) is there an alternative remedial scheme available to the plaintiffs?; and (2) are there “special factors” that “counsel hesitation” in creating the remedy? Arar v. Ashcroft, 585 F.3d 559, 563 (2d Cir. 2009) (en banc). I answer both questions in the negative.
There is no remedy for the violation of plaintiffs’ free exercise rights in the absence of a Bivens claim. The defendants do not contend otherwise. To the contrary, they argue that Congress deliberately chose not to create one. Specifically, they contend that the Immigration and Nationality Act (the “INA”) is a comprehensive remedial scheme for the “interest at issue,” Ashcroft’s Mem. of Law Support Mot. to Dismiss 6, ECF No. 736, presumably referring, at least in part, to the interest in not being subjected to deliberate interference with respect to religious practices. Defendants then admit that the INA affords no remedy for the deprivation of that interest. This decision not to provide plaintiffs with a monetary remedy, the argument concludes, means Congress wanted the judiciary to refrain from extending the Bivens remedy into this setting.
This argument, which parallels the Second Circuit’s reasoning in Arar, does not work in this setting. Arar had been ordered removed by the INS, and the Deputy Attorney General determined that his removal to Syria, where he was tortured, was consistent with the Convention Against Torture. Arar, 585 F.3d at 586. The Second Circuit observed that the provision by Congress of a comprehensive and intricate statutory scheme for review of orders of removal, including review of the government’s designation of a particular destination country,
51

would ordinarily25 warrant the conclusion that another remedy for the wrongful delivery of Arar to the Syrians, i.e., a Bivens damage remedy, is unwarranted. Id. at 572-73.
The plaintiffs in this case do not complain about their deportations. They are complaining about their treatment before they were deported. “Although . . . the INA provides a comprehensive regulatory scheme for managing the flow of immigrants in and out of the country, it is by no means a comprehensive remedial scheme for constitutional violations that occur incident to the administration of that regulatory scheme.” Turkmen I, 2006 WL 1662663, at *29 (emphases in original).
Most importantly, the plaintiffs are not complaining simply about facially neutral BOP policies that substantially burden their free exercise of religion. If they were, I might conclude that their “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief . . . and grievances filed through BOP’s Administrative Remedy Program,” Malesko, 534 U.S. at 62, provides sufficiently meaningful redress to preclude the implication of a Bivens damages remedy. But the plaintiffs allege a series of acts that were directed only at them (and the class of detainees they seek to represent) with the specific intent to deny them the right to practice their religion. They have sued the individuals who they allege engaged in those acts, and there is no scheme – statutory or regulatory, comprehensive or otherwise – for a person detained in a federal facility to seek any remedy from an officer for intentionally and maliciously interfering with his right to practice his religion. The precise purpose of the Bivens damages remedy is to deter individual officers from engaging in such

25

Since the government actively prevented Arar from availing himself of that statutory scheme, the

Second Circuit did not rest its decision on this ground. Rather, proceeding to the second step of the analysis, it

concluded that there were special factors counseling hesitation before extending the Bivens remedy. Arar, 585 F.3d

at 573.

52

unconstitutional conduct. FDIC v. Meyer, 510 U.S. 471, 485 (1994). In short, for these plaintiffs, as for Bivens himself and the plaintiff in Passman, “‘it is damages or nothing.’” Passman, 442 U.S. at 245 (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring in judgment)).26
The second inquiry in determining whether a Bivens claim should be implied is whether special factors counsel hesitation before doing so. Arar makes abundantly clear that “‘[s]pecial factors’ is an embracing category,” and that it takes very little for a particular factor to counsel sufficient hesitation to preclude the Bivens remedy. Arar, 585 F.3d at 573-74 (“Hesitation is a pause, not a full stop, . . . . and to counsel is not to require.”) As a result, federal officials seeking to fend off extensions of the Bivens remedy into other contexts face a “remarkably low” threshold. Id. at 574. Yet I conclude the officers here have failed to cross it.
Among the special factors that have counseled sufficient hesitation to foreclose the extension of Bivens are “military concerns; separation of powers; the comprehensiveness of available statutory schemes; national security concerns; and foreign policy considerations.” Id. at 573 (citations omitted). The defendants here contend that the national security concerns implicated by the September 11 attacks and their aftermath counsel hesitation in implying a Bivens remedy for the violation of the detainees’ right to free exercise of religion, and thus preclude me from doing so.

26

Because Bush v. Lucas may be the source of the Supreme Court’s apparent hesitation regarding

the availability of a Bivens remedy to a First Amendment claim, see Iqbal, 556 U.S., at 675 (citing Lucas, 462 U.S.

36 (1983)), I have examined the case carefully, but I remain confident that the remedy is available here. Lucas

involved an aerospace engineer’s effort to seek a Bivens remedy for a free speech claim even though he had already

obtained a remedy under a federal workplace protection statute. The key to the Court’s refusal to find an implied

damages remedy under the Free Exercise Clause was the fact that Congress had already provided “comprehensive

procedural and substantive provisions giving meaningful remedies against the United States.” Lucas, 462 U.S. at

368. There are no analogous alternative remedies available to the plaintiffs here.

53

Though the argument has some merit, it does not cover as much ground as the defendants want it to. As discussed above, the Second Circuit recognized in Iqbal that national emergencies like the September 11 attacks not only furnish the occasion for the full exercise of government power, but may enlarge that power as well. 490 F.3d at 159-60. Thus, though the government ordinarily detains and commences removal proceedings in furtherance of immigration policies, I previously held in this case that its use of that authority in furtherance of an ulterior motive to hold the detainees until they were cleared of suspicions of terrorism was a lawful (even if rarely used) exercise of its existing power. Turkmen I, 2006 WL 1662663, at *1. And that existing power can be enlarged by a national security emergency; for example, as Judge Newman observed in Iqbal, the exigent circumstances created by such an emergency “might justify governmental action that would not otherwise be permitted” under the Fourth Amendment. Iqbal, 490 F.3d at 159.
But context matters, and the right of a person detained in an American prison not to be subjected to malicious mistreatment by federal officers that is specifically intended to deprive him of his right to free exercise of his religion was not diminished by the September 11 attacks. Id. at 159-60. Moreover, the defendants have not even attempted to explain why the availability of a damages remedy if the plaintiffs prove their claim would adversely impact our national security even in the slightest. Intuition suggests the opposite: if an American jury finds that federal officers deprived detainees of the Koran and Halal food, refused to tell them the correct time of day, and banged on their cell doors while screaming profanities and anti-Muslim epithets, all for the specific purpose of interfering with their exercise of their Muslim faith, one would think our national security interests would only be enhanced if the world knew that those officers were held liable for the damages they caused.
54

In sum, the Supreme Court’s treatment of this issue in Iqbal indeed suggests the “unsettling possibility” that individuals have no right “to pursue a damages claim for intentional, religiously-based mistreatment at the hands of the federal government.” James F. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation, 114 Penn St. L. Rev. 1387, 1400 (2010). However, because both of the prerequisites for an extension of Bivens have been met, I reject that outcome here and hold that the remedy is available.
2. The Elements of the Claim Plaintiffs allege that the defendants created and implemented the harsh
confinement policy with the express intention of burdening their right to practice their religion. Accordingly, they must plead that defendants, with the (1) intent to suppress their religious practices, (2) burdened those practices.27 See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). However, if such a burden advances interests of the highest order and is narrowly tailored in pursuit of those interests, no claim will lie. Id. at 546.
3. The Sufficiency of the Allegations a. The DOJ Defendants As with their equal protection claim, plaintiffs’ free exercise claim against the
DOJ defendants is premised upon the DOJ defendants’ creation of a facially constitutional policy that was implemented unconstitutionally. Specifically, plaintiffs appear to contend that the DOJ defendants created the harsh confinement policy with the intent to suppress the Detainees’

27

When a neutral prison policy impinges on inmates’ fundamental constitutional rights, the policy is

valid if it is “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987);

accord O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Benjamin v. Coughlin, 905 F.2d 571, 574 (1990).

However, because intentional burdening of religious practices is involved here, the Turner v. Safley standard does

not apply.

55

religious practices and that this policy, when implemented by the MDC defendants, did ultimately cause such a burdening of the exercise of their religion.28

The Complaint fails to plausibly plead that the DOJ defendants intended to burden

the plaintiffs’ free exercise of their religion. As with plaintiffs’ substantive due process claim,

this claim appears to rest on an argument that, because their policy was implemented

unconstitutionally, they must have intended that result. Thus, for the same reasons set forth in

my discussion of the substantive due process claim, I conclude that the DOJ defendants’ failure

to specify that their policy be implemented lawfully does not raise the reasonable inference that

they intended for the policy to be implemented unlawfully. Accordingly, I dismiss the free

exercise claim against the DOJ defendants.

b. The MDC Defendants

The MDC defendants are alleged to have implemented policies (e.g., forbidding

the MDC Detainees from keeping any items, including the Koran, in their cells) that burdened

the exercise of their religion. They are also alleged to have failed to stop MDC guards from

engaging in abusive conduct unsanctioned by express policy (e.g., verbal and physical abuse)

that further burdened the Detainees’ religious practices. The Complaint contends that the MDC

defendants engaged in such conduct with the intent to suppress the MDC Detainees’ religious

practices.

With respect to the abusive conduct unsanctioned by express policy, the plaintiffs

have adequately pleaded that the MDC defendants were deliberately indifferent to the known

28

It may be possible to state a free exercise claim against government officials who cause a burden

on a plaintiff’s free exercise of his religion not with the specific intent to burden that exercise but with the more

general intent to subject people of a particular religion to an adverse action on the basis of that religion. See Iqbal,

556 U.S. at 676 (assuming that intentional discrimination with respect to placement in the ADMAX SHU burdens

free exercise rights) (citing Lukumi, 508 U.S. at 540-41); cf. McDaniel v. Paty, 435 U.S. 628 (1978). This kind of

more general religious discrimination claim does not appear to be advanced by the plaintiffs in this case, and I thus

do not consider whether the Complaint might adequately plead such a claim.

56

risk that their subordinates, MDC prison guards, would violate the Detainees’ free exercise rights. Indeed, as with the First and Fifth Amendment claims discussed above, the Complaint adequately alleges that the MDC defendants were aware of the abusive conduct of the MDC guards. See ¶¶ 24-28. None of the MDC defendants contest – and it cannot be reasonably contested – that this policy of inaction satisfies the strict scrutiny required under Lukumi. See 508 U.S. at 546. And defendants’ inaction in the face of such outrageous abuse suffices, at this stage, to render plausible plaintiffs’ allegation that the MDC defendants intended to suppress their religious practices and that the MDC defendants’ misconduct caused the plaintiffs’ injuries.
With respect to the burdens imposed as a matter of express policy, no question exists that defendants’ actions caused the injuries alleged and, as already established, the Complaint adequately pleads intent. Finally, while it is possible that these challenged restrictions may in fact be narrowly tailored to a sufficiently important interest, this is not obvious on the face of the Complaint and defendants must await discovery to so prove. See Iqbal, 490 F.3d at 173-74.
4. Qualified Immunity I reject the MDC defendants’ argument that they are entitled to qualified
immunity. The plaintiffs’ right to a reasonable opportunity to worship has long been clearly established. See, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972) (“If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the States against the Buddhist religion”); see also Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (holding that it is “well established that prisoners have a constitutional right to participate in congregate religious services.”) And if the well-pleaded
57

allegations of intentional interference with the plaintiffs’ religious practices are proven, no officer could reasonably believe that the conduct at issue was lawful. Accordingly, I conclude, as did the Second Circuit in Iqbal, that the plaintiffs’ allegations in claim three “suffice to preclude a qualified immunity defense at this stage of the litigation.” 490 F.3d at 173.29 E. Claim Six: Unreasonable Strip Searches (Fourth Amendment)30
The MDC plaintiffs also bring Fourth Amendment claims against the MDC defendants for subjecting them to unreasonable strip searches.31 ¶¶ 297-302. They allege that they were strip-searched repeatedly and unnecessarily, in a humiliating and unreasonable manner.
1. Elements of the Claim In order to state a claim that the MDC defendants subjected them to unreasonable
strip searches in violation of the Fourth Amendment, the plaintiffs must plead that the MDC defendants (1) caused them to be strip searched and (2) that the strip searches were not reasonably related to legitimate penological interests. See Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992); Iqbal, 490 F.3d at 172. A search conducted in an unreasonable manner is not reasonably related to legitimate penological interests. See Schmerber v. California, 384 U.S. 757, 768 (1966).

29

It bears emphasis that the qualified immunity defense to this claim and the others as well may

need to be revisited as the case progresses. I assume, as I must at this stage, the truth of the plaintiffs’ factual

allegations. At later stages, more will be required of the plaintiffs, and if only some of their allegations are properly

supported by admissible evidence, the qualified immunity defense may be available. See, e.g., Coley v. Smith, 441

F. App’x. 627, 629 (11th Cir. 2011) (failure to provide Muslim inmate with exact food he requested for Eid-ul-Fitr

feast on correct day did not violate clearly established law).

30

Plaintiffs also allege in Claim Six that the strip searches violated their right to substantive due

process. That aspect of the claim is discussed above in tandem with Claim One.

31

Only Benatta and Hamouda assert this claim again Zenk.

58

2. Sufficiency of the Allegations The Complaint alleges that the searches were conducted to punish and humiliate,
without any penological justification. The MDC plaintiffs allege that they were strip searched every time they were removed from or returned to their cells, including after non-contact legal and social visits, and were subject to random strip searches even while in their cells. They also allege that they were, for example, strip searched multiple times in a row – even though they had no opportunity to acquire anything between the strip searches – and verbally abused and videotaped during the strip searches. The Complaint alleges that these searches were conducted pursuant to a facially unconstitutional policy created and implemented by the MDC defendants.
The Complaint states an unreasonable search claim against all of the MDC defendants. The defendants are alleged to have created a policy that, by its terms, mandated searches that were untethered to any legitimate penological purpose, see Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir. 1983) (holding that consecutive body cavity searches of inmates are unreasonable); Covino, 967 F.2d at 80 (searches used to harass and punish inmate are unreasonable); Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir. 1980) (strip searches of inmates after non-contact visits are unreasonable unless there is some risk that contraband will be smuggled into prison), and performed in a humiliating manner, cf. Schmerber, 384 U.S. at 768. According to the Complaint, Hasty and Zenk ordered the creation of an unreasonable and punitive strip search policy, and Cuciti, with the help of Sherman and Lopresti, developed the specific policy. The MDC defendants do not challenge the plausibility of these allegations, and they clearly suffice to plead that each of the MDC defendants’ own actions caused the unreasonable strip searches alleged.
59

3. Qualified Immunity The allegations against the MDC defendants state a violation of clearly
established Fourth Amendment law. It was clearly established at the time that a strip search policy designed to punish and humiliate was not reasonably related to a legitimate penological purpose and thus violated the Fourth Amendment, and no reasonable officer could have believed that the policy alleged was constitutional. See Iqbal, 490 F.3d at 173 (“It was clearly established that . . . strip and body-cavity searches be rationally related to legitimate government purposes.”); Hodges, 712 F.2d at 35. F. Claim Seven: Conspiracy to Violate Civil Rights
Plaintiffs’ final claim is brought under 42 U.S.C. § 1985(3), which prohibits conspiracy “for the purpose of depriving . . . any person or class of person of the equal protection of the laws,” and provides a private cause of action against the alleged conspirators. The plaintiffs allege that the DOJ defendants and, separately, the MDC defendants conspired together to hold them in the harsh conditions of confinement discussed herein in violation of their equal protection rights.32
1. Elements of the Claim To make out a claim under Section 1985, plaintiffs must plead and prove four
elements: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities

32

The defendants challenge whether this statute is applicable to them as federal officials in their

individual capacities. The Second Circuit has held that, although it was not clearly established in 2001 that Section

1985 prohibited conspiracies among 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” where the officials’ behavior “would violate the equal protection clause.” Iqbal, 490 F.3d at 176. The

defendants were thus on notice in 2001 that an allegation of conspiracy could arise from their alleged treatment of

the plaintiffs.

60

under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States.” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). The conspiracy must be motivated by some class-based animus. Iqbal, 490 F.3d at 176 (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
2. Sufficiency of the Allegations For the reasons set forth above, the plaintiffs plausibly plead that Hasty, Zenk,
Sherman, Lopresti, and Cuciti implemented the facially discriminatory harsh confinement policy and the interference with their free exercise of their religion, all as alleged in Claims One, Two, Three, and Six. The same allegations state a claim for a conspiracy motivated by class based animus and, accordingly, I conclude plaintiffs’ § 1985(3) claim is plausibly pleaded as against these MDC Defendants only. See Iqbal, 490 F.3d at 177.
3. Qualified Immunity Defendants also suggest that they are entitled to qualified immunity because in
2001 it was not clearly established that Section 1985 applied to federal officials. As the Second Circuit has already explained, however, although it may not have been clearly established in 2001 that § 1985 prohibited conspiracies among 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.” Id. at 176. “[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) (emphases in original). Accordingly, qualified immunity is inappropriate.
61

CONCLUSION

For the reasons set forth above, defendants’ motions to dismiss are denied in part

and granted in part. The motions filed by the DOJ defendants are granted in their entirety. The

motions filed by the MDC defendants are granted in part and denied in part. Specifically, they

are denied with respect to the claims based on the alleged harsh conditions of confinement and

unlawful strip searches (Claims One, Two and Six) and the free exercise claim (Claim Three).

They are granted with respect to the claims based on the alleged communications blackout and

interference with counsel (Claims Four and Five). Finally, the motion to dismiss the conspiracy

claim (Claim Seven) is denied to the extent that the underlying objects of the conspiracy in

Claims One through Six have survived the motion and granted to the extent they have not.

Counsel for the remaining parties are directed to appear before Chief Magistrate

Gold for a status conference on January 30, 2013 at 2:00 PM.

So

ordered.

John
Dated: January 15, 2013 Brooklyn, New York

___________________ Gleeson, U.S.D.J.

62

 </s> Case 13-981, Document 266-1, 06/17/2015, 1534154, Page1 of 109

13‐981 (L) Turkmen, et al. v. Hasty, et al.

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

4

5

August Term, 2013

6

7

(Argued: May 1, 2014 Decided: June 17, 2015)

8

9

Docket Nos. 13‐981, 13‐999, 13‐1002, 13‐1003, 13‐1662

10

11

12

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL ABBASI,

13

ANSER MEHMOOD, BENAMAR BENATTA, AHMED KHALIFA,

14 SAEED HAMMOUDA, PURNA BAJRACHARYA, on behalf of themselves and

15

all others similarly situated,

16

17

Plaintiffs‐Appellees‐Cross‐Appellants,

18

19

‐v.‐

20

21

DENNIS HASTY, former Warden of the Metropolitan Detention Center,

22

MICHAEL ZENK, former Warden of the Metropolitan Detention Center,

23

JAMES SHERMAN, former Metropolitan Detention Center Associate

24

Warden for Custody,

25

26

Defendants‐Appellants,

27

28

JOHN ASHCROFT, former Attorney General of the United States,

29

ROBERT MUELLER, former Director, Federal Bureau of Investigation,

30

JAMES W. ZIGLAR, former Commissioner, Immigration and

31

Naturalization Service,

32

33

Defendants‐Cross‐Appellees,

34

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page2 of 109

1

SALVATORE LOPRESTI, former Metropolitan Detention Center Captain,

2

JOSEPH CUCITI, former Metropolitan Detention Center Lieutenant,

3

4

Defendants.*

5

6
7 Before:
8

POOLER, RAGGI, AND WESLEY, Circuit Judges.

9

10
11 Appeal from a January 15, 2013 Memorandum and Order of the United States 12 District Court for the Eastern District of New York (Gleeson, J.) granting in part 13 and denying in part Defendants’ motions to dismiss. Cross‐appeal from an April 14 10, 2013 Judgment of the United States District Court for the Eastern District of 15 New York (Gleeson, J.), which was entered pursuant to Rule 54(b) of the Federal 16 Rules of Civil Procedure on April 11, 2013, granting certain Defendants’ motions 17 to dismiss. We AFFIRM in part and REVERSE in part. Judge Raggi concurs in 18 part in the judgment and dissents in part in a separate opinion.
19

20

RACHEL A. MEEROPOL, Center for Constitutional Rights,

21

New York, NY (Michael Winger, Sunita Patel, Baher A.

22

Azmy, Center for Constitutional Rights, New York, NY;

23

Nancy L. Kestenbaum, Jennifer L. Robbins, Joanne Sum‐

24

Ping, Covington & Burling LLP, New York, NY, on the

25

brief), for Plaintiffs‐Appellees‐Cross‐Appellants.

26

27

HUGH D. SANDLER, Crowell & Moring LLP, New York,

28

NY (Shari Ross Lahlou, Crowell & Moring LLP,

29

Washington, D.C., on the brief), for Defendant‐Appellant

30

Dennis Hasty.

31

32

JOSHUA C. KLEIN (Allan N. Taffet, Kirk L. Brett, Megan

33

E. Uhle, on the brief), Duval & Stachenfeld LLP, New

34

York, NY, for Defendant‐Appellant Michael Zenk.

* The Clerk of the Court is directed to amend the caption as set forth above.

2

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page3 of 109

1

2

JEFFREY A. LAMKEN, MoloLamken LLP, Washington,

3

D.C. (Martin V. Totaro, MoloLamken LLP, Washington,

4

D.C.; Debra L. Roth, Julia H. Perkins, Shaw, Bransford

5

& Roth P.C., Washington, D.C., on the brief), for

6

Defendant‐Appellant James Sherman.

7

8

H. THOMAS BYRON III, Appellate Attorney, Civil

9

Division (Stuart F. Delery, Assistant Attorney General,

10

Ronald C. Machen Jr., United States Attorney, Dana

11

Boente, United States Attorney, Barbara L. Herwig,

12

Appellate Attorney, Civil Division, on the brief), U.S.

13

Department of Justice, Washington, D.C., for Defendants‐

14

Cross‐Appellees John Ashcroft and Robert Mueller.

15

16

WILLIAM ALDEN MCDANIEL, JR., Ballard Spahr LLP,

17

Baltimore, MD, for Defendant‐Cross‐Appellee James W.

18

Ziglar.

19

20

Trina Realmuto, National Immigration Project of the

21

National Lawyers Guild, Boston, MA; Mary Kenney,

22

American Immigration Council, Washington, D.C.,

23

amici curiae in support of Plaintiffs‐Appellees‐Cross‐

24

Appellants.

25

26

27 POOLER AND WESLEY, Circuit Judges:

28

On September 11, 2001, “19 Arab Muslim hijackers who counted

29 themselves members in good standing of al Qaeda” hijacked four airplanes and

30 killed over 3,000 people on American soil. Ashcroft v. Iqbal (Iqbal), 556 U.S. 662,

31 682 (2009). This case raises a difficult and delicate set of legal issues concerning

3

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page4 of 109

1 individuals who were caught up in the post‐9/11 investigation even though they

2 were unquestionably never involved in terrorist activity. Plaintiffs are eight

3 male, “out‐of‐status” aliens1 who were arrested on immigration charges and

4 detained following the 9/11 attacks. Plaintiffs were held at the Metropolitan

5 Detention Center (the “MDC”) in Brooklyn, New York, or the Passaic County Jail

6 (“Passaic”) in Paterson, New Jersey; their individual detentions generally ranged

7 from approximately three to eight months.

8

The operative complaint, a putative class action, asserts various claims

9 against former Attorney General John Ashcroft; former Director of the Federal

10 Bureau of Investigation (the “FBI”) Robert Mueller; former Commissioner of the

11 Immigration and Naturalization Service (the “INS”) James Ziglar; former MDC

12 Warden Dennis Hasty; former MDC Warden Michael Zenk; and former MDC

13 Associate Warden James Sherman.2 All claims arise out of allegedly

1 We use the term “out‐of‐status” alien to mean one who has either (1) entered the United States illegally and is deportable if apprehended, or (2) entered the United States legally but who has fallen “out of status” by violating the rules or guidelines for his nonimmigrant status (often by overstaying his visa) in the United States and is deportable. 2 For ease of reference, we refer to Ashcroft, Mueller, and Ziglar collectively as the “Department of Justice (‘DOJ’) Defendants,” and Hasty, Sherman, and Zenk collectively as the “MDC Defendants.” The operative complaint also alleges claims against MDC officials Joseph Cuciti and Salvatore Lopresti. Cuciti did not appeal the district court’s decision, and Lopresti filed a notice of appeal but did not timely pay the filing fee or file

4

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page5 of 109

1 discriminatory and punitive treatment Plaintiffs suffered while confined at the 2 MDC or Passaic.

3

BACKGROUND

4 I. Procedural History3

5

Plaintiffs initiated this action over thirteen years ago on April 17, 2002.

6 Over the following two and one‐half years, Plaintiffs amended their complaint

7 three times. In June 2006, following a series of motions to dismiss, the district

8 court dismissed Plaintiffs’ unlawful‐length‐of‐detention claims but permitted to

9 proceed, inter alia, the substantive due process and equal protection claims

10 challenging the conditions of confinement at the MDC. See Turkmen v. Ashcroft

11 (Turkmen I), No. 02 CV 2307(JG), 2006 WL 1662663, at *33–36, 40–41 (E.D.N.Y.

12 June 14, 2006), affʹd in part, vacated in part, Turkmen v. Ashcroft (Turkmen II), 589

13 F.3d 542 (2d Cir. 2009) (per curiam), remanded to Turkmen III, 915 F. Supp. 2d at

14 314. Plaintiffs and Defendants appealed various aspects of that ruling.

15

Two significant events occurred while the appeal was pending. First, six

16 of the original eight named Plaintiffs at that time withdrew or settled their claims
a brief. Lopresti’s appeal was dismissed pursuant to Federal Rule of Appellate Procedure 31(c). Thus, we do not address the claims against Cuciti and Lopresti. 3 For a more comprehensive review of this case’s procedural history, see Turkmen v. Ashcroft (Turkmen III), 915 F. Supp. 2d 314, 331−33 (E.D.N.Y. 2013).

5

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page6 of 109

1 against the government. See Turkmen II, 589 F.3d at 544 n.1, 545. This left only

2 Ibrahim Turkmen and Akhil Sachdeva, both of whom were detained at Passaic,

3 as opposed to the MDC. Second, the Supreme Court issued Iqbal, 556 U.S. at 662,

4 which altered the pleading regime governing Plaintiffs’ claims. In light of these

5 events and the remaining Plaintiffs’ stated desire to replead claims unique to the

6 settling Plaintiffs, this Court affirmed the dismissal of the length of detention

7 claims but vacated and remanded with respect to the conditions of confinement

8 claims. See Turkmen II, 589 F.3d at 546−47, 549−50.

9

On remand, the district court permitted Plaintiffs to amend their complaint

10 and granted leave for six additional Plaintiffs, all of whom had been held at the

11 MDC, to intervene. The eight current named Plaintiffs are of Middle Eastern,

12 North African, or South Asian origin; six of them are Muslim, one is Hindu, and

13 one is Buddhist. The Fourth Amended Complaint (the “Complaint”), the

14 operative complaint in this case, restates Plaintiffs’ putative class claims on

15 behalf of the “9/11 detainees,” a class of similarly situated non‐citizens who are

6

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page7 of 109

1 Arab or Muslim, or were perceived by Defendants as Arab or Muslim, and were

2 arrested and detained in response to the 9/11 attacks.4

3

The Complaint dramatically winnowed the relevant claims and

4 defendants; it alleges seven claims against eight defendants. The first six claims,

5 all brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

6 Narcotics, 403 U.S. 388 (1971), are: (1) a conditions of confinement claim under the

7 Due Process Clause; (2) an equal protection claim alleging that Defendants

8 subjected Plaintiffs to the challenged conditions because of their, or their

9 perceived, race, religion, ethnicity, and/or national origin; (3) a claim arising

10 under the Free Exercise Clause; (4) and (5) two claims generally alleging

11 interference with counsel; and (6) a claim under the Fourth and Fifth

12 Amendments alleging unreasonable and punitive strip searches. The seventh

13 and final claim alleges a conspiracy under 42 U.S.C. § 1985(3). The DOJ and

14 MDC Defendants moved to dismiss the Complaint for failure to state a claim, on

4 Benamar Benatta was originally detained by Canadian authorities on September 5, 2001, after crossing the Canadian border with false documentation. Following the September 11 attacks, Benatta was transported back to the United States and detained in the challenged conditions of confinement and pursuant to the post‐9/11 investigation; therefore, we call him a “9/11 detainee.”
7

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page8 of 109

1 qualified immunity grounds, and, in some instances, based on a theory that

2 Bivens relief did not extend to the claim at issue.

3 II. The OIG Reports

4

Plaintiffs supplemented the factual allegations in their amended

5 complaints with information gleaned from two reports by the Office of the

6 Inspector General of the United States Department of Justice (the “OIG

7 reports”)5 that documented the federal law enforcement response to 9/11 and

8 conditions at the MDC and Passaic.

9

The OIG reports, which the Complaint “incorporate[s] by reference except

10 where contradicted by the allegations of [the Complaint],” Compl. ¶ 3 n.1, see also

11 id. ¶ 5 n.2, play a significant role in this case.6 Primarily, the OIG reports provide

5 There are two OIG reports. The first OIG report, published in June 2003, covers multiple aspects of law enforcement’s response to 9/11. See U.S. Dep’t of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003) (the “OIG Report”), available at http://www.justice.gov/oig/special/0306/full.pdf. The second OIG report, published in December 2003, focuses on abuses at the MDC. See U.S. Dep’t of Justice, Office of the Inspector General, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003) (the “Supplemental OIG Report”), available at http://www.justice.gov/oig/special/0312/final.pdf. 6 Various Defendants challenge the district court’s decision to consider the OIG reports to the extent that they are not contradicted by the Complaint. Defendants are correct that a complaint “include[s] any written instrument attached to it as an exhibit or any
8

Case 13-981, Document 266-1, 06/17/2015, 1534154, Page9 of 109

1 invaluable context for the unprecedented challenges following 9/11 and the

2 various strategies federal agencies employed to confront these challenges. The

3 reports help orient our analysis of the Complaint.

4 III. Plaintiffs’ Allegations7

5

In the aftermath of the 9/11 attacks, the FBI and other agencies within the

6 DOJ immediately initiated an immense investigation aimed at identifying the

7 9/11 perpetrators and preventing any further attacks. See OIG Report at 1, 11−12.

8 PENTTBOM, the Pentagon/Twin Towers Bombings investigation, was initially

9 run out of the FBI’s field offices, but shortly thereafter, Mueller ordered that

10 management of the investigation be switched to the FBI’s Strategic Information

statements or documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991); accord DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). But their objection misses the point. The district court accurately explained that at the pleading stage, although we must consider the words on the page (that is, we cannot disregard the fact that the OIG reports make particular findings), we need not consider the truth of those words to the extent disputed by Plaintiffs. See Turkmen III, 915 F. Supp. 2d at 342 n.14 (citing DiFolco, 622 F.3d at 111). Even were we to view the OIG reports as fully incorporated, reliance on any assertion of fact requires a credibility assessment that we are fundamentally unsuited to undertake at the Rule 12(b)(6) stage. And although the OIG reports cannot determinatively prove or disprove Plaintiffs’ allegations, they remain relevant to our analysis because they supplement our understanding of the law enforcement response to 9/11. 7 The allegations set forth herein are drawn from the Complaint and those portions of the OIG reports incorporated by reference. See supra note 6. We presume the veracity of Plaintiffs’ well‐pleaded allegations. Iqbal, 556 U.S. at 679.
9

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1 and Operations Center (the “SIOC”) at FBI Headquarters in Washington, D.C.

2 Mueller personally directed PENTTBOM from the SIOC and remained in daily

3 contact with FBI field offices.

4

In conjunction with PENTTBOM, the Deputy Attorney General’s Office

5 (the “DAG’s Office”) established the SIOC Working Group to coordinate “efforts

6 among the various components within the [DOJ] that had an investigative

7 interest in[,] or responsibility for[,] the September 11 detainees.” Id. at 15.8 The

8 SIOC Working Group included representatives from, among other agencies, the

9 FBI, the INS, and the DAG’s Office. This group met daily—if not multiple times

10 in a single day—in the months following 9/11; its duties included “coordinat[ing]

11 information and evidence sharing among the FBI, INS, and U.S. Attorneys’

12 offices” and “ensur[ing] that aliens detained as part of the PENTTBOM

13 investigation would not be released until they were cleared by the FBI of

14 involvement with the September 11 attacks or terrorism in general.” Id.

15

Given that the 9/11 hijackers were all foreign nationals, the DOJ response

16 carried a major immigration law component. See id. at 12. Ashcroft and Mueller

17 developed “a policy whereby any Muslim or Arab man encountered during the

8 The SIOC Working Group acquired this name because its initial meetings occurred at the FBI’s SIOC.

10

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1 investigation of a tip received in the 9/11 terrorism investigation . . . and

2 discovered to be a non‐citizen who had violated the terms of his visa, was

3 arrested.” Compl. ¶ 1; see also id. ¶¶ 39–49. Ashcroft also created the related

4 “hold‐until‐cleared” policy, which mandated that individuals arrested in the

5 wake of 9/11 not be released from “custody until [FBI Headquarters]

6 affirmatively cleared them of terrorist ties.” Id. ¶ 2; see also OIG Report at 38–39.

7

Within a week of 9/11, the FBI had received approximately 96,000 tips from

8 civilians across the country. These tips varied significantly in quality and

9 reliability.9 “Mueller [nonetheless] ordered that every one of these tips be

10 investigated, even if they were implausible on their face.” Compl. ¶ 40.

11 Ultimately, 762 detainees were placed on the INS Custody List (the “INS List”)

12 that then made them subject to Ashcroft’s hold‐until‐cleared policy.

13

In the months following 9/11, the DOJ Defendants “received detailed daily

14 reports of the arrests and detentions.” Id. ¶ 47. Ashcroft and Mueller also “met

9 For instance, Turkmen came to the FBI’s attention when his landlord called the FBI’s 9/11 hotline and reported “that she rented an apartment in her home to several Middle Eastern men, and she ‘would feel awful if her tenants were involved in terrorism and she didn’t call.’” Compl. ¶ 251. “The FBI knew that her only basis for suspecting these men was that they were Middle Eastern; indeed, she reported that they were good tenants, and paid their rent on time.” Id. Another alien was arrested after the FBI received a tip that stated that the small grocery store where he worked was overstaffed, thus arousing the tipster’s suspicions about the “Middle Eastern men” that worked there. OIG Report at 17.

11

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1 regularly with a small group of government officials in Washington, D.C., and

2 mapped out ways to exert maximum pressure on the individuals arrested in

3 connection with the terrorism investigation.” Id. ¶ 61.10 This small group

4 “discussed and decided upon a strategy to restrict the 9/11 detainees’ ability to

5 contact the outside world and delay their immigration hearings. The group also

6 decided to spread the word among law enforcement personnel that the 9/11

7 detainees were suspected terrorists[] . . . and that they needed to be encouraged

8 in any way possible to cooperate.” Id.

9

Plaintiffs, with the exception of Turkmen and Sachdeva, were held at the

10 MDC. Under MDC confinement policy, the 9/11 detainees placed in the MDC

11 were held in the MDC’s Administrative Maximum Special Housing Unit (the

12 “ADMAX SHU”)—“a particularly restrictive type of SHU not found in most

13 [Bureau of Prisons (‘BOP’)] facilities because the normal SHU is usually sufficient

10 It is unclear whether this “small group” refers to the SIOC Working Group or a distinct group involving Ashcroft, Mueller, and other senior Washington, D.C., officials. One possibility is that Plaintiffs are referring to the small group that consisted of Ashcroft, Mueller, Michael Chertoff, who was then Assistant Attorney General of the Criminal Division, and the Deputy Attorney General. See OIG Report at 13. According to Chertoff, this group discussed the DOJ’s post‐9/11 law enforcement strategy and policies. Given the makeup of this group and the SIOC Working Group, it is reasonable to infer that information flowed between them; for instance, Chertoff’s deputy, Alice Fisher, was placed in charge of immigration issues for the Criminal Division and personally established the SIOC Working Group.

12

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1 for correcting inmate misbehavior and addressing security concerns.” Id. ¶ 76.

2 The confinement policy was created by the MDC Defendants “in consultation

3 with the FBI.” Id. ¶ 65.

4

Conditions in the ADMAX SHU were severe and began to receive media

5 attention soon after detentions began. See OIG Report at 2, 5. Detainees were:

6 “placed in tiny cells for over 23 hours a day,” Compl. ¶ 5; “strip‐searched every

7 time they were removed from or returned to their cell[s], . . . even when they had

8 no conceivable opportunity to obtain contraband,” id. ¶ 112; provided with

9 “meager and barely edible” food, id. ¶ 128; denied sleep by “bright lights” that

10 were left on in their cells for 24 hours a day, id. ¶ 119, and, “[o]n some occasions,

11 correctional officers walked by every 20 minutes throughout the night, kicked

12 the doors to wake up the detainees, and yelled” highly degrading and offensive

13 comments, id. ¶ 120; constructively denied recreation and exposed to the

14 elements, see id. ¶¶ 122−23; “denied access to basic hygiene items like toilet

15 paper, soap, towels, toothpaste, [and] eating utensils,” id. ¶ 130; and prohibited

16 from moving around the unit, using the telephone freely, using the commissary,

17 or accessing MDC handbooks, which explained how to file complaints about

18 mistreatment, see id. ¶¶ 76, 83, 129, 140.

13

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1

MDC staff also subjected the 9/11 detainees to frequent physical and verbal

2 abuse. The abuse included slamming the 9/11 detainees into walls; bending or

3 twisting their arms, hands, wrists, and fingers; lifting them off the ground by

4 their arms; pulling on their arms and handcuffs; stepping on their leg restraints;

5 restraining them with handcuffs and/or shackles even while in their cells; and

6 handling them in other rough and inappropriate ways. See id. ¶ 105; see also

7 Supplemental OIG Report at 8–28. MDC staff also referred to the 9/11 detainees

8 as “‘terrorists,’ and other offensive names; threaten[ed] them with violence;

9 curs[ed] at them; insult[ed] their religion; and ma[de] humiliating sexual

10 comments during strip‐searches.” Compl. ¶ 109. Specifically, Plaintiffs and

11 putative class members at the MDC were referred to by staff as “camel[s],”

12 “fucking Muslims,” and “Arabic asshole[s],” id. ¶¶ 110, 147, 218.

13

The MDC Plaintiffs did not receive copies of the Koran for weeks or

14 months after requesting them, and one Plaintiff never received a copy, “pursuant

15 to a written MDC policy . . . that prohibited the 9/11 detainees from keeping

16 anything, including a Koran, in their cell[s].” Id. ¶ 132. The MDC Plaintiffs were

17 also “denied the Halal food required by their Muslim faith.” Id. ¶ 133. And

18 “MDC staff frequently interrupted Plaintiffs’ and class members’ prayers,”

14

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1 including “by banging on cell doors,” yelling derogatory comments, and

2 mocking the detainees while they prayed. Id. ¶ 136.

3

The named MDC Plaintiffs’ individual experiences—several of which are

4 highlighted below—add further texture to their collective allegations concerning

5 the arrest and confinement of the 9/11 detainees.

6

A. Anser Mehmood

7

Mehmood, a citizen of Pakistan and devout Muslim, entered the United

8 States on a business visa in 1989 with his wife, Uzma, and their three children.

9 After his visa expired, Mehmood remained in the country and started a trucking

10 business that provided enough earnings to purchase a home in New Jersey and

11 to send funds to his family in Pakistan. In 2000, while living in New Jersey, he

12 and Uzma had their fourth child. In May 2001, Uzma’s brother—a United States

13 citizen—submitted an immigration petition for the entire family.

14

On the morning of October 3, 2001, Mehmood was asleep with Uzma and

15 their one‐year‐old son when FBI and INS agents knocked on his door. The

16 agents searched Mehmood’s home and asked whether he “was involved with a

17 jihad.” Id. ¶ 157. Mehmood admitted that he had overstayed his visa. The FBI

18 informed Mehmood that they were not interested in him; they had come to arrest

15

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1 his wife Uzma, whose name the FBI had encountered when investigating

2 Plaintiff Ahmer Abbasi, her brother. Mehmood convinced the FBI to arrest him

3 instead of Uzma because their son was still breastfeeding. “The Agent told

4 Mehmood that they had no choice but to arrest one of the parents, but that

5 Mehmood faced a minor immigration violation only, and he would be out on

6 bail within days.” Id. ¶ 159.

7

Upon his arrival at the MDC, Mehmood “was dragged from the van by

8 several large correctional officers, who threw him into several walls on his way

9 into the facility.” Id. ¶ 162. “His left hand was broken during this incident” and

10 “[t]he guards threatened to kill him if he asked any questions.” Id. His

11 experience in the ADMAX SHU tracked that of other 9/11 detainees. For

12 instance, “[w]henever Mehmood was removed from his cell, he was placed in

13 handcuffs, chains, and shackles. Four or more MDC staff members typically

14 escorted him to his destination, frequently inflicting unnecessary pain along the

15 way, for example, by banging him into the wall, dragging him, carrying him, and

16 stepping on his shackles and pushing his face into the wall.” Id. ¶ 166. Neither

17 the FBI nor INS interviewed Mehmood following his arrest. Mehmood was not

18 released from the ADMAX SHU until February 6, 2002.

16

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1

B. Ahmed Khalifa

2

Khalifa, who had completed five years toward a medical degree at the

3 University of Alexandria in Egypt, came to the United States on a student visa in

4 July 2001. He came to the FBI’s attention after the FBI received a tip that “several

5 Arabs who lived at Khalifa’s address were renting a post‐office box, and possibly

6 sending out large quantities of money.” Id. ¶ 195. On September 30, 2001, FBI,

7 INS, and officers from the New York City Police Department came to the

8 apartment Khalifa shared with several Egyptian friends. The officers searched

9 his wallet and apparently became “very interested in a list of phone numbers of

10 friends in Egypt.” Id. ¶ 196. After searching the apartment, the agents asked

11 Khalifa for his passport and “if he had anything to do with September 11.” Id.

12 ¶ 197. One FBI agent told Khalifa that they were only interested in three of his

13 roommates, but another agent said they also needed Khalifa, whom they arrested

14 for “working without authorization.” Id.

15

On October 1, 2001, after briefly stopping at a local INS detention facility to

16 complete paperwork, Khalifa and his roommates were transported to the MDC.

17 When he arrived at the MDC, Khalifa “was slammed into the wall, pushed and

18 kicked by MDC officers and placed into a wet cell, with a mattress on the floor.”

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1 Id. ¶ 201. “[His] wrists were cut and bruised from his handcuffs, and he was

2 worried about other detainees, whom he heard gasping and moaning through

3 the walls of his cell.” Id.

4

FBI and INS agents interviewed Khalifa on October 7, 2001. One of the

5 agents apologized to Khalifa after noticing the bruises on his wrists. When

6 Khalifa stated that MDC guards were abusing him, the agents “stated it was

7 because he was Muslim.” Id. ¶ 202. In notes from the interview, the agents did

8 not question Khalifa’s credibility, and noted no suspicion of ties to terrorism or

9 interest in him in connection with PENTTBOM.

10

Following the interview, MDC guards strip searched Khalifa and “laughed

11 when they made him bend over and spread his buttocks.” Id. ¶ 203. Khalifa

12 complains of the conditions associated with detention in the ADMAX SHU,

13 including arbitrary and abusive strip searches, sleep deprivation, constructive

14 denial of recreational activities and hygiene items, and deprivation of food and

15 medical attention.

16

By November 5, 2001, the New York FBI field office affirmatively cleared

17 Khalifa of any ties to terrorism and sent his name to FBI Headquarters for final

18

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1 clearance. Khalifa was not officially cleared until December 19, 2001. He

2 remained confined in the ADMAX SHU until mid‐January 2002.

3

C. Purna Raj Bajracharya

4

Bajracharya is neither Muslim nor Arab. He is a Buddhist and native of

5 Nepal who entered the United States on a three‐month business visa in 1996.

6 After overstaying his visa, Bajracharya remained in Queens, New York, for five

7 years, working various odd jobs to send money home to his wife and sons in

8 Nepal. Having planned to return home in the fall or winter of 2001, Bajracharya

9 used a video camera to capture the streets he had come to know in New York.

10 He came to the FBI’s attention on October 25, 2001, when a Queens County

11 District Attorney’s Office employee “observed an ‘[A]rab male’ videotaping

12 outside a Queens[] office building that contained the Queens County District

13 Attorney[’s] Office and a New York FBI office.” Id. ¶ 230. When approached by

14 investigators from the District Attorney’s Office, Bajracharya tried to explain that

15 he was a tourist. The investigators took him inside the building and interrogated

16 him for five hours. FBI and INS agents arrived at some point during the

17 interrogation. Bajracharya subsequently took the agents to his apartment;

19

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1 provided them with his identification documents, which established his country

2 of origin; and admitted to overstaying his visa.

3

Apparently due to the videotaping, Bajracharya was designated as being

4 of “special interest” to the FBI and on October 27, 2001, he was transported to the

5 MDC. Id. ¶¶ 233−34. On October 30, 2001, the FBI agent assigned to

6 Bajracharya’s case, along with other law enforcement personnel, interviewed him

7 with the aid of an interpreter. During the interview, “Bajracharya was asked

8 whether he was Muslim or knew any Muslims.” Id. ¶ 235. Bajracharya

9 explained that he was not Muslim and knew no Muslims. The FBI agent’s notes

10 from the interview do not question Bajracharya’s credibility or express any

11 suspicion of ties to terrorism. Two days later, the same agent affirmatively

12 cleared Bajracharya of any link to terrorism. By November 5, 2001, the New

13 York FBI field office completed its investigation and forwarded Bajracharya’s

14 case to FBI Headquarters for final clearance. Documents at FBI Headquarters

15 note that the FBI had no interest in Bajracharya by mid‐November 2001.

16 Nonetheless, he was not released from the ADMAX SHU until January 13, 2002.

17 The FBI agent assigned to Bajracharya’s case did not understand why

18 Bajracharya remained in the ADMAX SHU throughout this period; the agent

20

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1 eventually called the Legal Aid Society and advised an attorney that Bajracharya

2 needed legal representation.

3

Bajracharya, who is 5’3” and weighed about 130 pounds at the time of his

4 arrest, complains of the same conditions common to the other MDC Plaintiffs.

5 For instance, he could not sleep due to the light in his cell, and when he was

6 removed from his cell, he would be placed in handcuffs, chains, and shackles

7 and escorted by four or more MDC staff members. Bajracharya became so

8 traumatized by his experience in the ADMAX SHU that he wept constantly.

9 When an attorney requested that the MDC transfer Bajracharya to general

10 population, an MDC “doctor responded that Bajracharya was crying too much,

11 and would cause a riot.” Id. ¶ 241.

12 IV. The New York List and the “Of Interest” Designation

13

As originally articulated by Ashcroft, following 9/11, the DOJ sought to

14 prevent future terrorism by arresting and detaining those people who “have

15 been identified as persons who participate in, or lend support to, terrorist

16 activities.” OIG Report at 12 (internal quotation marks omitted). To that end,

17 Michael Pearson, who was then INS Executive Associate Commissioner for Field

18 Operations, issued a series of Operational Orders, which addressed the

21

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1 responsibilities of INS agents operating with the FBI to investigate leads on

2 illegal aliens. A September 22, 2001 order instructed agents to “exercise sound

3 judgment” and to limit arrests to those aliens in whom the FBI had an “interest”

4 and discouraged arrest in cases that were “clearly of no interest in furthering the

5 investigation of the terrorist attacks of September 11th.” Id. at 45 (internal

6 quotation marks omitted). The “of interest” designation by an FBI agent had

7 significant implications for a detainee. “Of interest” detainees were placed on

8 the INS List, subject to the hold‐until‐cleared policy, and required FBI clearance

9 of any connection to terrorism before they could be released or removed from the

10 United States. Detainees who were not designated “of interest” to the FBI’s

11 PENTTBOM investigation were not placed on the INS List, did not require

12 clearance by the FBI, and could be processed according to normal INS

13 procedures. Id. at 40.

14

The arrest and detention mandate was not uniformly implemented

15 throughout the country. Specifically, the New York FBI investigated all

16 PENTTBOM leads without vetting the initial tip and designated as “of interest”

17 “anyone picked up on a PENTTBOM lead . . . regardless of the strength of the

18 evidence or the origin of the lead.” Id. at 41; see also Compl. ¶¶ 43–45. For

22

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1 instance, days after 9/11, New York City police stopped three Middle Eastern

2 men in Manhattan on a traffic violation and found plans to a public school in the

3 car. The next day, their employer confirmed that the men had the plans because

4 they were performing construction work on the school. Nonetheless, the men

5 were arrested and detained. See OIG Report at 42. In another instance, a Middle

6 Eastern man was arrested for illegally crossing into the United States from

7 Canada over a week before 9/11. After the attacks, the man was placed on New

8 York’s “‘special interest’ list even though a document in his file, dated September

9 26, 2001, stated that FBI New York had no knowledge of the basis for his

10 detention.” Id. at 64 (internal quotation marks omitted).

11

In many cases, the New York FBI did not even attempt to determine

12 whether the alien was linked to terrorism, see id. at 14, 16, 41−42, 47, and it “never

13 labeled a detainee ‘no interest’ until after the clearance process was complete,” id.

14 at 18 (emphasis added). Thus, aliens encountered and arrested pursuant to a

15 PENTTBOM lead in New York were designated “of interest” (or special interest)

16 and held until the local field office confirmed they had no ties to terrorism. Id. at

23

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1 14; see also id. at 53.11 The result was that the MDC Plaintiffs and others similarly

2 situated in New York were held at the MDC ADMAX SHU as if they met the

3 national “of interest” designation. These practices—specifically the absolute lack

4 of triage—appear to have been unique to New York. See id. at 47, 56.12

5

At some point in October 2001, INS representatives to the SIOC Working

6 Group learned that the New York FBI was maintaining a separate list (the “New

7 York List”) of detainees who had not been included in the national INS List. One

8 explanation for maintaining a separate New York List was that the New York FBI

9 could not determine if the detainees had any connection with terrorist activity.

10 Id. at 54.

11

After INS Headquarters learned of the separate New York List, small

12 groups of senior officials from the DAG’s Office, the FBI, and the INS convened

13 on at least two occasions in October and November 2001 to suggest how to deal

14 with the two separate lists of detainees. In discussing how to address the New

11 The OIG Report indicates that 491 of the 762 detainees were arrested in New York. OIG Report at 21−22. However, the OIG Report does not identify how many New York arrests were the result of the New York FBI’s efforts. 12 The OIG Report posits that the New York response differed from the rest of the nation, at least in part, as a result of the New York FBI and U.S. Attorney’s Office’s long tradition of independence from their headquarters in Washington, D.C. See OIG Report at 54.
24

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1 York List, “officials at the INS, FBI, and [DOJ] raised concerns about, among

2 other things, whether the aliens [on the New York List] had any nexus to

3 terrorism.” Id. at 53. Nonetheless, this list was merged with the INS List due to

4 the concern that absent further investigation, “the FBI could unwittingly permit a

5 dangerous individual to leave the United States.” Id. The decision to merge the

6 lists ensured that some of the individuals on the New York List would remain

7 detained in the challenged conditions of confinement as if there were some

8 suspicion that those individuals were tied to terrorism, even though no such

9 suspicion existed.

10 V. The Issues on Appeal

11

In a January 15, 2013 Memorandum and Order, the district court granted

12 in part and denied in part Defendants’ motions to dismiss the Complaint. The

13 district court dismissed all claims against the DOJ Defendants. As to the MDC

14 Defendants, the district court denied their motions to dismiss Plaintiffs’

15 substantive due process conditions of confinement claim (Claim 1); equal

16 protection conditions of confinement claim (Claim 2); free exercise claim (Claim

17 3); unreasonable strip search claim (Claim 6); and conspiracy claim under 42

18 U.S.C. § 1985(3) (Claim 7). See Turkmen III, 915 F. Supp. 2d at 324. The MDC

25

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1 Defendants appealed, and Plaintiffs cross‐appealed the dismissal of the claims 2 against the DOJ Defendants based on a judgment that was entered pursuant to 3 Rule 54(b) of the Federal Rules of Civil Procedure.13

4

DISCUSSION14

5 I. Pleading Standard

6

To satisfy Iqbal’s plausibility standard, Plaintiffs must “plead[] factual

7 content that allows the court to draw the reasonable inference that the defendant

8 is liable for the misconduct alleged.” 556 U.S. at 678. Although plausibility is not

9 a “probability requirement,” Plaintiffs must allege facts that permit “more than a

10 sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation

11 marks omitted). Factual allegations that are “merely consistent with” unlawful

12 conduct do not create a reasonable inference of liability. Id.

13

Moreover, “[t]hreadbare recitals of the elements of a cause of action,

14 supported by mere conclusory statements, do not suffice.” Id. Well‐pleaded

15 factual allegations, in contrast, should be presumed true, and we must determine

13 Plaintiffs have not appealed the district court’s dismissal of their interference with counsel claims (Claims 4 and 5). 14 We review the district court’s determination of Defendants’ Rule 12(b)(6) motions to dismiss de novo. See Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 88 (2d Cir. 2011).

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1 “whether they plausibly give rise to an entitlement to relief.” Id. at 679.

2 Ultimately, every plausibility determination is a “context‐specific task that

3 requires the reviewing court to draw on its judicial experience and common

4 sense.” Id.

5

With the exception of the Section 1985 conspiracy claim, all of Plaintiffs’

6 claims allege constitutional violations based on injuries first recognized by the

7 Supreme Court in Bivens, 403 U.S. at 388. During the course of this litigation, the

8 Supreme Court made it clear in Iqbal that a federal tortfeasor’s Bivens liability

9 cannot be premised on vicarious liability. 556 U.S. at 676. Thus, Plaintiffs must

10 plausibly plead that each Defendant, “through the official’s own individual

11 actions,” violated Plaintiffs’ constitutional rights. Id. In other words, Bivens

12 relief is available only against federal officials who are personally liable for the

13 alleged constitutional tort. Id. at 676−77. Iqbal precludes relying on a

14 supervisor’s mere knowledge of a subordinate’s mental state (i.e., discriminatory

15 or punitive intent) to infer that the supervisor shared that intent. Id. at 677.

16 Knowing that a subordinate engaged in a rogue discriminatory or punitive act is

17 not enough. But that is not to say that where the supervisor condones or ratifies

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1 a subordinate’s discriminatory or punitive actions the supervisor is free of

2 Bivens’s reach. See id. at 683.

3 II. Availability of a Bivens Remedy for Plaintiffs’ Claims

4

Unlike the MDC Defendants, none of the DOJ Defendants challenge the

5 existence of a Bivens remedy in their briefs to this Court. While the DOJ

6 Defendants did raise this issue below, and are represented by able counsel on

7 appeal, they have chosen to not offer that argument now as a further defense of

8 their victory in the district court. However, as the reader will later discover, our

9 dissenting colleague makes much of this defense, raising it as her main objection

10 to our resolution of the appeal. Given the MDC Defendants’ arguments, as well

11 as the dissent’s decision to press the issue, legitimately noting that a district

12 court’s judgment can be affirmed on any ground supported by the record,

13 Dissenting Op., post at 7 n.4 (citing Lotes Co. v. Hon Hai Precision Indus. Co., 753

14 F.3d 395, 413 (2d Cir. 2014)), we think it appropriate to explain our conclusion

15 that a Bivens remedy is available for the MDC Plaintiffs’ punitive conditions of

16 confinement and strip search claims against both the DOJ and the MDC

17 Defendants.

28

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1

In Bivens, 403 U.S. at 388, the Supreme Court “recognized for the first time

2 an implied private action for damages against federal officers alleged to have

3 violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S.

4 61, 66 (2001). “The purpose of Bivens is to deter individual federal officers from

5 committing constitutional violations.” Id. at 70. Because a Bivens claim has

6 judicial parentage, “the Supreme Court has warned that the Bivens remedy is an

7 extraordinary thing that should rarely if ever be applied in new contexts.” Arar

8 v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (internal quotation marks

9 omitted). Thus, a Bivens remedy is not available for all who allege injury from a

10 federal officer’s violation of their constitutional rights.

11

In Arar, we outlined a two‐step process for determining whether a Bivens

12 remedy is available. First, the court must determine whether the underlying

13 claims extend Bivens into a “new context.” Id. at 572. If, and only if, the answer

14 to this first step is yes, the court must then consider (a) “whether there is an

15 alternative remedial scheme available to the plaintiff,” and, even if there is not,

16 (b) “whether special factors counsel hesitation in creating a Bivens remedy.” Id.

17 (internal quotation marks and brackets omitted). As Arar noted, case law

18 provides limited guidance regarding how to determine whether a claim presents

29

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1 a new context for Bivens purposes. Thus, “[w]e construe[d] the word ‘context’ as

2 it is commonly used in law: to reflect a potentially recurring scenario that has

3 similar legal and factual components.” Id.

4

Determining the “context” of a claim can be tricky. The MDC Defendants

5 contend that the context of Plaintiffs’ claims is the nation’s “response to an

6 unprecedented terrorist attack.” Sherman Br. 45. The DOJ Defendants made a

7 similar argument before the district court in an earlier round of this litigation.

8 See Turkmen I, 2006 WL 1662663, at *30. The MDC Defendants, and the dissent

9 on behalf of the DOJ Defendants, contend that Arar supports this view. But if

10 that were the case, then why did Arar take pains to note that the “context” of

11 Arar’s claims was not the nation’s continuing response to terrorism, but the acts

12 of federal officials in carrying out Arar’s extraordinary rendition? 585 F.3d at

13 572. We looked to both the rights injured and the mechanism of the injury to

14 determine the context of Arar’s claims. In rejecting the availability of a Bivens

15 remedy, we focused on the mechanism of his injury: extraordinary rendition—“a

16 distinct phenomenon in international law”—and determined this presented a

17 new context for Bivens‐based claims. Id. Only upon concluding that

18 extraordinary rendition presented a new context did we examine the policy

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1 concerns and competing remedial measures available to Arar. In our view,

2 setting the context of the Bivens claims here as the national response in the wake

3 of 9/11 conflates the two‐step process dictated by this Court in Arar. The reasons

4 why Plaintiffs were held at the MDC as if they were suspected of terrorism do

5 not present the “context” of their confinement—just as the reason for Arar’s

6 extraordinary rendition did not present the context of his claim. Without doubt,

7 9/11 presented unrivaled challenges and severe exigencies—but that does not

8 change the “context” of Plaintiffs’ claims. “[M]ost of the rights that the

9 Plaintiff[s] contend[] were violated do not vary with surrounding circumstances,

10 such as the right not to be subjected to needlessly harsh conditions of

11 confinement, the right to be free from the use of excessive force, and the right not

12 to be subjected to ethnic or religious discrimination. The strength of our system

13 of constitutional rights derives from the steadfast protection of those rights in

14 both normal and unusual times.” Iqbal v. Hasty (Hasty), 490 F.3d 143, 159 (2d Cir.

15 2007), rev’d on other grounds sub nom. Iqbal, 556 U.S. 662.

16

Thus, we think it plain that the MDC Plaintiffs’ conditions of confinement

17 claims are set in the following context: federal detainee Plaintiffs, housed in a

18 federal facility, allege that individual federal officers subjected them to punitive

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1 conditions. This context takes account of both the rights injured (here,
2 substantive due process and equal protection rights)15 and the mechanism of
3 injury (punitive conditions without sufficient cause). The claim—that individual
4 officers violated detainees’ constitutional rights by subjecting them to harsh
5 treatment with impermissible intent or without sufficient cause—stands firmly
6 within a familiar Bivens context. Both the Supreme Court and this Circuit have
7 recognized a Bivens remedy for constitutional challenges to conditions of
8 confinement. In Carlson v. Green, 446 U.S. 14, 17–20 (1980), the Supreme Court
9 recognized an implied remedy for the plaintiff’s claim alleging an Eighth
10 Amendment violation for prisoner mistreatment. Furthermore, in Malesko, in
11 refusing to extend a Bivens remedy to claims against private corporations
12 housing federal detainees, the Supreme Court observed in dicta that, while no
15 The rights‐injured component of Plaintiffs’ claims fall within a recognized Bivens context. This Circuit has presumed the availability of a Bivens remedy for substantive due process claims in several cases. See Arar, 585 F.3d at 598 (Sack, J., dissenting) (citing cases). In addition, the Supreme Court has acknowledged the availability of “a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment.” Iqbal, 556 U.S. at 675 (citing Davis v. Passman, 442 U.S. 228 (1979)). And while it is true that the Supreme Court has subsequently declined to extend Davis to other employment discrimination claims, such as in Chappell v. Wallace, 462 U.S. 296, 300–04 (1983), the Court’s analysis was focused on the special nature of the employer‐employee relationship in the military—or, in other words, the mechanism of injury. Here, where the mechanism of injury is also familiar, a Bivens remedy is plainly available.
32

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1 claim was available against the private corporation, a federal prisoner would have

2 a remedy against federal officials for constitutional claims. 534 U.S. at 72. “If a

3 federal prisoner in a BOP facility alleges a constitutional deprivation, he may

4 bring a Bivens claim against the offending individual officer, subject to the

5 defense of qualified immunity.” Id. The Court went on to recognize that the

6 “prisoner may not bring a Bivens claim against the officer’s employer, the United

7 States, or the BOP.” Id. The MDC Plaintiffs’ claims here plainly follow Malesko’s

8 guidance: the claims are raised against the individual officers, both at the DOJ

9 and the MDC, who were responsible for subjecting the Plaintiffs to punitive

10 conditions of confinement.

11

The Second Circuit has also recognized the availability of Bivens relief for

12 federal prisoners housed in federal facilities bringing claims against individual

13 federal officers. In Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006), this Court

14 reversed the district court’s dismissal of the prisoner plaintiff’s Bivens claim for

15 violation of his due process rights against supervisory prison officials. See also

16 Tellier v. Fields, 280 F.3d 69, 80–83 (2d Cir. 2000) (recognizing a Bivens remedy for

17 a claim of deprivation of procedural due process brought by a federal prisoner

18 against federal prison officials). Furthermore, in Hasty, where we considered

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1 claims nearly identical to those at issue in this case, we “did not so much as hint

2 either that a Bivens remedy was unavailable or that its availability would

3 constitute an unwarranted extension of the Bivens doctrine.” Arar, 585 F.3d at

4 597 (Sack, J., dissenting) (discussing Hasty, 490 F.3d at 177–78).

5

Our sister circuits have also permitted Bivens claims for unconstitutional

6 conditions of confinement. In Cale v. Johnson, 861 F.2d 943, 947 (6th Cir. 1988),

7 abrogated on other grounds by Thaddeus–X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en

8 banc), the Sixth Circuit held that “federal courts have the jurisdictional authority

9 to entertain a Bivens action brought by a federal prisoner, alleging violations of

10 his right to substantive due process.” The Third Circuit has also permitted a

11 federal inmate to bring a civil rights action against prison officials. See Bistrian v.

12 Levi, 696 F.3d 352, 372–75 (3d Cir. 2012) (assuming availability of a Bivens remedy

13 for plaintiff’s Fifth Amendment substantive due process and other constitutional

14 claims challenging his conditions of confinement).

15

Notwithstanding the persuasive precedent suggesting the availability of a

16 Bivens remedy for the MDC Plaintiffs’ conditions of confinement claims, the

17 MDC Defendants, and our dissenting colleague, argue that the MDC Plaintiffs’

18 claims present a new Bivens context because the Plaintiffs are illegal aliens. But

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1 because the MDC Plaintiffs’ right to be free from punitive conditions of

2 confinement is coextensive with that of a citizen, their unlawful presence in the

3 United States at the time of the challenged confinement does not place their

4 standard mistreatment claim into a new context. Indeed, the Fifth Circuit has

5 recognized a Bivens claim raised by a Mexican national for violations of her

6 Fourth and Fifth Amendment rights to be free from false imprisonment and the

7 use of excessive force by law enforcement personnel. See Martinez‐Aguero v.

8 Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006). The Ninth Circuit has also recognized

9 a Bivens claim for due process violations that occurred during an illegal alien

10 plaintiff’s detention. See Papa v. United States, 281 F.3d 1004, 1010–11 (9th Cir.

11 2002).16 Thus, we conclude that a Bivens remedy is available for the Plaintiffs’

12 substantive due process and equal protection conditions of confinement claims.

13

Our understanding of Bivens and this Court’s decision in Arar do not

14 however suggest the availability of a Bivens remedy for the Plaintiffs’ free

15 exercise claim. That claim—that Defendants deliberately interfered with

16 We note that the Ninth Circuit has declined to provide illegal aliens with an implied Bivens remedy for unlawful detention during deportation proceedings. Mirmehdi v. United States, 689 F.3d 975, 981–83 (9th Cir. 2012). Of course, that decision is plainly inapposite here where the MDC Plaintiffs do not challenge the fact that they were detained, but rather the conditions in which they were detained.
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1 Plaintiffs’ religious practices by: (1) denying them timely access to copies of the

2 Koran; (2) denying them Halal food; and (3) failing to stop MDC staff from

3 interfering with Plaintiffs’ prayers—does not fall within a familiar Bivens context.

4 Here, it is the right injured—Plaintiffs’ free exercise right—and not the

5 mechanism of injury that places Plaintiffs’ claims in a new Bivens context.

6 Indeed, the Supreme Court has “not found an implied damages remedy under

7 the Free Exercise Clause” and has “declined to extend Bivens to a claim sounding

8 in the First Amendment.” Iqbal, 556 U.S. at 675 (citing Bush v. Lucas, 462 U.S. 367

9 (1983)). Accordingly, we agree with the MDC Defendants that Plaintiffs’ free

10 exercise claim should have been dismissed.

11

But the MDC Plaintiffs’ claim that they were subjected to unlawful strip

12 searches falls within an established Bivens context: federal detainee plaintiffs,

13 housed in a federal facility, allege that individual federal officers subjected them

14 to unreasonable searches in violation of the Fourth Amendment. The MDC

15 Defendants fail to persuasively explain why recognizing the MDC Plaintiffs’

16 unlawful strip search claim would extend Bivens to a new context. Indeed, the

17 right violated certainly falls within a recognized Bivens context: the Fourth

18 Amendment is at the core of the Bivens jurisprudence, as Bivens itself concerned a

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1 Fourth Amendment claim. In Bivens, the plaintiff brought a Fourth Amendment 2 claim for the defendants’ use of unreasonable force without probable cause, 3 resulting in the plaintiff’s unlawful arrest. 403 U.S. at 389–90; see also Groh v. 4 Ramirez, 540 U.S. 551, 555 (2004) (recognizing the availability of a Bivens remedy 5 for a Fourth Amendment claim of an unreasonable search, as a result of a facially 6 invalid warrant). This Circuit has also permitted Bivens relief for Fourth 7 Amendment claims involving unreasonable searches. See, e.g., Castro v. United 8 States, 34 F.3d 106, 107 (2d Cir. 1994). And the mechanism of the violation—here, 9 an unreasonable search performed by a prison official—has also been recognized 10 by this Circuit. Indeed, in Arar, we stated that “[i]n the small number of contexts 11 in which courts have implied a Bivens remedy, it has often been easy to identify 12 both the line between constitutional and unconstitutional conduct, and the 13 alternative course which officers should have pursued. . . . [T]he immigration 14 officer who subjected an alien to multiple strip searches without cause should 15 have left the alien in his clothes.” 585 F.3d at 580; see also Hasty, 490 F.3d at 170– 16 73 (assuming the existence of a Bivens remedy to challenge strip searches under 17 the Fourth Amendment).
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1

Accordingly, we conclude that a Bivens remedy is available for Plaintiffs’

2 conditions of confinement claims, under both the Due Process and Equal

3 Protection Clauses of the Fifth Amendment, and Fourth Amendment

4 unreasonable and punitive strip searches claim.17 However, Plaintiffs’ free

5 exercise claim would require extending Bivens to a new context, a move we

6 decline to make absent guidance from the Supreme Court.

7 III. Claim 1: Substantive Due Process Conditions of Confinement

8

The MDC Plaintiffs allege that the harsh conditions of confinement in the

9 MDC violated their Fifth Amendment substantive due process rights and that all

10 Defendants are liable for this harm.18 Plaintiffs present distinct theories of

11 liability as to the DOJ and MDC Defendants.

12

A. Applicable Legal Standard

13

The Fifth Amendment’s Due Process Clause forbids subjecting pretrial

14 detainees to punitive restrictions or conditions. See Bell v. Wolfish (Wolfish), 441

17 Because we conclude that Plaintiffs’ substantive due process, equal protection, and unreasonable punitive strip searches claims do not extend Bivens to a new context, we need not address “whether there is an alternative remedial scheme available to the plaintiff” or “whether special factors counsel hesitation in creating a Bivens remedy.” Arar, 585 F.3d at 572 (internal quotation marks and brackets omitted). 18 Turkmen and Sachdeva, the Passaic Plaintiffs, do not bring a substantive due process conditions of confinement claim or unreasonable strip search claim (Claims 1 and 6).
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1 U.S. 520, 535 & n.16 (1979).19 Plaintiffs must plausibly plead that Defendants, (1)

2 with punitive intent, (2) personally engaged in conduct that caused the

3 challenged conditions of confinement. See id. at 538; see also Iqbal, 556 U.S. at 676–

4 77. Absent “an expressed intent to punish,” Wolfish, 441 U.S. at 538, we may only

5 infer that Defendants acted with punitive intent if the challenged conditions

6 were “not reasonably related to a legitimate goal—if [they were] arbitrary or

7 purposeless,” id. at 539.

8

B. The DOJ Defendants

9

While the DOJ Defendants do not raise a no‐Bivens‐claim defense, they do

10 forcefully contest liability here with powerful post‐Iqbal assertions that “the

11 former Attorney General and FBI Director did not themselves require or specify

12 any of the particular conditions set forth in the complaint. And they cannot be

13 held liable on what amounts to a theory of respondeat superior for the actions of

14 others who may have imposed those conditions.” Ashcroft & Mueller Br. 10.

15 They contend that because the former Attorney General’s initial detention order

16 was constitutional, having been approved by the Supreme Court in Iqbal, the DOJ

19 The parties have not argued for a different standard in this appeal. Accordingly, we do not address whether the rights of civil immigration detainees should be governed by a standard that is even more protective than the standard that applies to pretrial criminal detainees.

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1 Defendants were “entitled to presume that the facially constitutional policy

2 would in turn be implemented lawfully . . . .” Id. at 9. We agree . . . to a point.

3

The MDC Plaintiffs concede that the DOJ Defendants did not create the

4 particular conditions in question. See Turkmen III, 915 F. Supp. 2d at 326 n.4; see

5 also OIG Report at 19, 112−13 (reporting that, at least initially, BOP officials

6 determined the conditions under which detainees would be held, without

7 direction from the FBI or elsewhere). The MDC Plaintiffs similarly fail to plead

8 that Ashcroft’s initial arrest and detention mandate required subordinates to

9 apply excessively restrictive conditions to civil detainees against whom the

10 government lacked individualized suspicion of terrorism. Given the mandate’s

11 facial validity, the DOJ Defendants had a right to presume that subordinates

12 would carry it out in a constitutional manner. See Al‐Jundi v. Estate of Rockefeller,

13 885 F.2d 1060, 1065−66 (2d Cir. 1989). But that is not the end of the matter.

14

The MDC Plaintiffs plausibly plead that the DOJ Defendants were aware

15 that illegal aliens were being detained in punitive conditions of confinement in

16 New York and further knew that there was no suggestion that those detainees

17 were tied to terrorism except for the fact that they were, or were perceived to be,

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1 Arab or Muslim.20 The MDC Plaintiffs further allege that while knowing these
2 facts, the DOJ Defendants were responsible for a decision to merge the New York
3 List with the national INS List, which contained the names of detainees whose
4 detention was dependent not only on their illegal immigrant status and their
5 perceived Arab or Muslim affiliation, but also a suspicion that they were
6 connected to terrorist activities. The merger ensured that the MDC Plaintiffs
7 would continue to be confined in punitive conditions. This is sufficient to plead
8 a Fifth Amendment substantive due process violation.21 Given the lack of
20 The dissent counters that “[t]his is not apparent in the record,” citing Plaintiff Bajracharya’s videotaping of a building in Queens as evidence of that Plaintiff’s possible tie to terrorism. Dissenting Op., post at 43 n.28. The dissent makes no mention, of course, of Plaintiff Khalifa, who was told that the FBI was only interested in his roommates, but who was arrested and then detained in the ADMAX SHU anyway, Compl. ¶ 197; or of Plaintiff Mehmood, who was arrested and detained in the ADMAX SHU in place of his wife, in whom the FBI had apparently expressed interest, but who was still breastfeeding their son, id. ¶ 159. The dissent further claims that detainees were not sent to the ADMAX SHU based on their perceived race or religion, but—as the OIG Report states—based on whether they were designated of “high interest” to the PENTTBOM investigation. Dissenting Op., post at 44 n.28 (citing OIG Report at 18, 111). But, as the dissent concedes, id., Plaintiffs’ well‐pleaded Complaint specifically contradicts this point: the MDC Plaintiffs were detained in the ADMAX SHU “even though they had not been classified ‘high interest,’” Compl. ¶ 4. 21 We acknowledge, as the dissent points out, that the MDC Plaintiffs did not advance the “lists‐merger theory” before this Court or the district court. Dissenting Op., post at 43 n.28. Rather, they structured the Complaint to challenge Ashcroft’s arrest and detention mandate as initially formulated and generally applied. In examining the Complaint’s sufficiency, we have been clear that the pleadings are inadequate to challenge the validity of the policy ab initio, but do state a claim with regard to the merger decision, an event that Plaintiffs explicitly reference in the Complaint. See
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1 individualized suspicion, the decision to merge the lists was not “reasonably

2 related to a legitimate goal.” See Wolfish, 441 U.S. at 539. The only reason why

3 the MDC Plaintiffs were held as if they were suspected of terrorism was because

4 they were, or appeared to be, Arab or Muslim. We conclude that this plausibly

5 pleads punitive intent. Id.

6

1. Punitive Conditions of Confinement

7

Contrary to the district court’s conclusion that Plaintiffs failed to “allege

8 that the DOJ [D]efendants were even aware of [the] conditions,” Turkmen III, 915

9 F. Supp. 2d at 340, the Complaint and the OIG Report each contain allegations of

10 the DOJ Defendants’ knowledge of the challenged conditions. Plaintiffs allege,

11 inter alia, that Mueller ran the 9/11 investigation out of FBI Headquarters; and

12 that “Ashcroft, Mueller[,] and Ziglar received detailed daily reports of the arrests

13 and detentions,” Compl. ¶ 47; see also id. ¶¶ 63−65.

14

The OIG Report makes plain the plausibility of Plaintiffs’ allegations. The

15 “[DOJ] was aware of the BOP’s decision to house the September 11 detainees in

16 high‐security sections in various BOP facilities.” OIG Report at 19. The Deputy

17 Chief of Staff to Ashcroft told the OIG that an allegation of mistreatment was

Compl. ¶ 47; Pls.’ Br. 38. Sufficiency analysis requires a careful parsing of the Complaint and that is all that has occurred here.

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1 called to the Attorney General’s attention. Id. at 20. And BOP Director Kathy 2 Hawk Sawyer stated that in the weeks following 9/11, the Deputy Attorney 3 General’s Chief of Staff and the Principal Associate Deputy Attorney General 4 “called her . . . with concerns about detainees’ ability to communicate both with 5 those outside the facility and with other inmates,” id. at 112, which she said 6 confirmed for her that the decision to house detainees in the restrictive 7 conditions of the ADMAX SHU was appropriate, id. at 112–113. This supports 8 the reasonable inference that not only was Ashcroft’s office aware of some of the 9 conditions imposed, but affirmatively supported them. See also id. at 113 (DOJ 10 officials told Sawyer to “take [BOP] policies to their legal limit”).22 Furthermore, 11 the OIG Report also makes clear that conditions in the ADMAX SHU began to
22 The dissent attempts to minimize the force of these comments, claiming that communications about a condition of confinement that was lifted before the merger decision cannot support an inference as to what the DOJ Defendants knew about the conditions in the ADMAX SHU. Dissenting Op., post at 56–57. Simply put, we disagree. The fact remains that a condition of confinement, less severe and abusive than the conditions at issue here, garnered the attention of senior officials; it stands to reason that conditions that kept detainees in their cells for twenty‐three hours a day, denied them sleep by bright lights, and involved excessive strip searches and physical abuse, would have come to the DOJ Defendants’ attention.
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1 receive media attention soon after detentions began, see id. at 2, 5;23 thus, it seems

2 implausible that the public’s concerns did not reach the DOJ Defendants’ desks.

3

Of course, we cannot say for certain that daily reports given to Ashcroft

4 and Mueller detailed the conditions at the ADMAX SHU or that the daily

5 meetings of the SIOC Working Group (containing representatives from each of

6 the DOJ Defendants’ offices) discussed those conditions. But on review of a

7 motion to dismiss, Plaintiffs need not prove their allegations; they must plausibly

8 plead them. At a minimum, a steady stream of information regarding the

9 challenged conditions flowed between the BOP and senior DOJ officials. Given

10 the MDC Plaintiffs’ allegations, the media coverage of conditions at the MDC,

11 and the DOJ Defendants’ announced central roles in PENTTBOM, it seems to us

12 plausible that information concerning conditions at the MDC, which held eighty‐

13 four of the 9/11 detainees, reached the DOJ Defendants.24

23 See, e.g., Neil A. Lewis, A Nation Challenged: The Detainees; Detentions After Attacks Pass 1,000, U.S. Says, N.Y. TIMES, Oct. 30, 2001, available at http://www.nytimes.com/2001/10/30/us/a‐nation‐challenged‐the‐detainees‐detentions‐ after‐attacks‐pass‐1000‐us‐says.html (citing “common news reports of abuse involv[ing] mistreatment of prisoners of Middle Eastern background at jails”). 24 Furthermore, the OIG reports were issued pursuant to the Office of the Inspector General’s responsibilities under the USA PATRIOT Act, which was enacted on October 26, 2001. See OIG Report at 3 n.6. The PATRIOT Act, Section 1001, reads: “The Inspector General of the Department of Justice shall designate one official who shall— (1) review information and receive complaints alleging abuses of civil rights and civil

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1

2. Lack of Individualized Suspicion

2

The MDC Plaintiffs also plausibly plead that the DOJ Defendants were

3 aware that the FBI had not developed any connection between some of the

4 detainees and terrorist activities. The Complaint and OIG Report both make

5 clear that the New York FBI arrested all “out‐of‐status” aliens encountered—

6 even coincidentally—in the course of investigating a PENTTBOM lead. OIG

7 Report at 41–42, 69–70. These arrestees were “deemed ‘of interest’ for purposes

8 of the ‘hold until cleared’ policy, regardless of the strength of the evidence or the

9 origin of the lead.” Id. at 41. Those deemed of “high interest” were sent to the

10 MDC’s ADMAX SHU, id. at 111, but “there was little consistency or precision to

11 the process that resulted in detainees being labeled ‘high interest,’” id. at 158.25

liberties by employees and officials of the Department of Justice.” PATRIOT Act, Pub. L. No. 107‐56, § 1001, 115 Stat. 272 (2001). “On October 30, 2001, the OIG reviewed a newspaper article in which a September 11 detainee alleged he was physically abused when he arrived at the MDC on October 4, 2001. Based on the allegations in the article, the OIG’s Investigations Division initiated an investigation into the matter.” OIG Report at 144. It seems to us most plausible that if the OIG—who is “under the authority, direction, and control of the Attorney General with respect to audits or investigations,” 5 U.S.C. App. 3 § 8E(a)(1)—was aware of the challenged conditions at the MDC, the DOJ Defendants were as well. 25 Even some detainees who were not labeled “high interest” were nonetheless sent to the MDC’s ADMAX SHU. For example, “Abbasi, Bajracharya, Mehmood, and Khalifa[] were placed in the ADMAX SHU even though they had not been classified ‘high interest’ and despite the absence of any information indicating they were dangerous or involved in terrorism, or any other legitimate reason for such treatment.” Compl. ¶ 4.
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1

Even if the DOJ Defendants were not initially aware of this practice, the

2 Complaint and OIG reports support the reasonable inference that Ashcroft and

3 Mueller learned of it within weeks of 9/11. The Complaint clearly alleges that the

4 DOJ Defendants agreed that individuals for whom the FBI could only articulate

5 an immigration law violation as a reason for detention—and for whom the FBI

6 had not developed any reliable tie to terrorism—would continue to be treated as

7 if the FBI had reason to believe the detainees had ties to terrorist activity. Compl.

8 ¶ 67. Plaintiffs point to the detailed daily reports that the DOJ Defendants

9 received regarding arrests and detentions and allege that the DOJ Defendants

10 “were aware that the FBI had no information tying Plaintiffs and class members

11 to terrorism prior to treating them as ‘of interest’ to the PENTTBOM

12 investigation.” Id. ¶ 47. Indeed, they claim that Ashcroft, in particular, “insisted

13 on regular, detailed reporting on arrests”; they allege that he received a daily

14 “Attorney General’s Report” on persons arrested. Id. ¶ 63. They further allege

15 that it was Ziglar who was ultimately responsible for providing much of this

16 information—which he gleaned from his twice daily briefings with his staff

17 regarding the 9/11 detentions—to Ashcroft, indicating that he too was aware of

18 the lack of individualized suspicion. Id. ¶ 64.

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1

Once again, the OIG reports also support the MDC Plaintiffs’ allegation

2 that the DOJ Defendants became aware of the lack of individualized suspicion

3 for some detainees held in the challenged conditions of confinement. The OIG

4 Report states that “[a] variety of INS, FBI, and [DOJ] officials who worked on

5 the[] September 11 detainee cases told the OIG that it soon became evident that

6 many of the people arrested during the PENTTBOM investigation might not

7 have a nexus to terrorism.” OIG Report at 45. Other DOJ officials also stated

8 that it “soon became clear” that only some of the detainees were of “genuine

9 investigative interest”—as opposed to aliens identified by the FBI as “of interest”

10 for whom the FBI had no suspicion of a connection to the attacks or terrorism in

11 general. Id. at 47.

12

The OIG Report supports the reasonable inference that this information,

13 known by other DOJ officials, came to the attention of the DOJ Defendants. In

14 particular, the OIG Report specifies that Ashcroft and Mueller were involved in a

15 “‘continuous meeting’ for the first few months” after 9/11, at which “the issue of

16 holding aliens until they were cleared was discussed.” Id. at 39–40.

17 Furthermore, the OIG Report makes clear that the SIOC Working Group,

18 containing representatives from the offices of each of the DOJ Defendants, was

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1 aware of the lack of evidence tying detainees to terrorism. Id. at 53–57. As we 2 have already noted, the OIG Report details how at some point in October 2001, 3 the SIOC Working Group learned about the New York List and that “officials at 4 the INS, FBI, and [DOJ] raised concerns about, among other things, whether the 5 aliens had any nexus to terrorism.” Id. at 53. Clearly this created a major 6 problem for the DOJ. The existence of the New York List suddenly presented the 7 possibility of more than doubling the number of detainees subject to the hold‐ 8 until‐cleared policy.26 It seems quite plausible that DOJ officials would confer 9 with the Attorney General and the Director of the FBI (it was, after all, his agents 10 who were arresting out‐of‐status Arab and Muslim aliens and holding them as if 11 they were “of interest” without any suspicion of terrorist connections) about the 12 problem of the New York List and the hundreds of detainees picked up in 13 contravention of Ashcroft’s stated policy. Indeed, it seems to us implausible they 14 did not. Finally, the OIG Report once again makes clear that media reports 15 regarding allegations of mistreatment of detainees alleged that detainees
26 In October and November of 2001, the New York List contained approximately 300 detainees while the INS List for the rest of the nation contained only 200 detainees. OIG Report at 54.
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1 remained in detention even though they had no involvement in terrorism. Id. at

2 2, 5.

3

3. The Decision to Merge the Lists

4

Plaintiffs plausibly plead that, despite the DOJ Defendants’ knowledge of

5 the conditions at the ADMAX SHU and the lack of any form of verified suspicion

6 for a large number of those detainees on the New York List, Ashcroft approved,

7 or at least endorsed, a decision to merge the New York List. The MDC Plaintiffs

8 contend that he did so notwithstanding vocal opposition from various internal

9 sources. The Complaint clearly alleges that “[a]gainst significant internal

10 criticism from INS agents and other federal employees involved in the sweeps,

11 Ashcroft ordered that, despite a complete lack of any information or a statement

12 of FBI interest, all such Plaintiffs and class members [on the New York List] be

13 detained until cleared and otherwise treated as ‘of interest.’” Compl. ¶ 47. By

14 taking this action, Ashcroft ensured that some of the individuals on the New

15 York List would be placed in, or remain detained in, the challenged conditions of

16 confinement.

17

Our dissenting colleague levels a concern as to the import of the merger of

18 the lists and counters that nothing in the OIG reports confirms Ashcroft’s

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1 personal knowledge of the correlation between the merger of the lists and the

2 lack of individualized suspicion as to the MDC Plaintiffs. The dissent contends

3 that, because Plaintiffs’ allegations are not based on personal knowledge, there is

4 no factual basis in the record for them. Dissenting Op., post at 45. True enough

5 that Ashcroft did not acknowledge that he was aware of the merger of the lists

6 and its implication for the MDC Plaintiffs, nor did he take responsibility for it.

7 But then again a review of the OIG Report gives no indication that anybody

8 asked him.

9

The absence of an inquiry to the former Attorney General is not a criticism

10 of the Office of the Inspector General’s methods, but a simple recognition of a

11 fact that points out a key difference between our view of the OIG reports and

12 that of the dissent. For us, the OIG reports provide context for the allegations of

13 the Complaint. See supra note 6. However, it would be a mistake to think of the

14 OIG reports as a repository of all relevant facts of that troubled time; but that is

15 exactly what the dissent seems inclined to do. The dissent measures plausibility

16 by the absence or presence of fact‐findings in the OIG reports. Thus, for the

17 dissent, the fact that the Attorney General may not have been questioned is

18 confirmation that he knew nothing. The reports make no such assertion.

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1

It may be that following discovery it will be clear that Ashcroft was not

2 responsible for the merger decision (nor was Mueller or Ziglar), but that is not

3 the question at the pleading stage. The question is whether the MDC Plaintiffs

4 plausibly plead that Ashcroft was responsible. Given the importance of the

5 merger and its implications for how his lawful original order was being carried

6 out, we think the MDC Plaintiffs plausibly allege that he was.

7

Indeed, the OIG Report supports the MDC Plaintiffs’ allegation that

8 Ashcroft was responsible for the merger decision. An incident at one of the New

9 York List meetings provides additional context that supports that allegation. At

10 the November 2, 2001 meeting, the group discussed the necessity of CIA checks,

11 often a prerequisite to a 9/11 detainee’s release from detention. OIG Report at 55.

12 In response, Stuart Levey, the Associate Deputy Attorney General responsible for

13 oversight of immigration issues, stated that he had to “check” before

14 communicating a decision on whether “any detainees could be released without

15 the CIA check.” Id. at 56. This response could reasonably indicate (a) a lack of

16 authority to respond to the question, or (b) that Levey wanted to consider other

17 views before making the decision. Because either is plausible, it is irrelevant that

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1 only inference (a) supports the conclusion that Levey could not answer the

2 question on his own and had to take it to more senior officials.27

3

Furthermore, in late November 2001, when the INS Chief of Staff

4 approached Levey about the CIA check policy, Levey said that he “did not feel

5 comfortable making the decision about [the] request to change the CIA check

6 policy without additional input.” Id. at 62. It seems to us that if Levey was not

7 comfortable changing the CIA check policy without input from more senior

8 officials, he certainly would not have been comfortable making the decision on

9 his own to double the number of detainees subject to that policy in the first

10 instance.28

27 The OIG Report states that Levey specifically consulted David Laufman, the Deputy Attorney General’s Chief of Staff. OIG Report at 62. The dissent takes this as definitive proof that Ashcroft was not consulted on this, or the merger, decision. Dissenting Op., post at 47–49. The dissent mischaracterizes our reference to the CIA checks decision. We do not contend that Levey consulted Ashcroft about that decision, nor do we need to. In our view, the fact that Levey spoke to Laufman about that decision is not the end of the matter; indeed, the only relevance of the CIA checks decision, period, is that Levey was not capable of making it on his own, suggesting that he also would not be able to make the list‐merger decision on his own. 28 Indeed, Ziglar told the OIG that he contacted Ashcroft’s office on November 7, 2001, to discuss concerns about the process of clearing names from the INS Custody List, especially the impact that merging the lists would have on that process and said that “based on these and other contacts with senior Department officials, he believed the Department was fully aware” of the INS’s concerns. OIG Report at 66–67. This also suggests that Levey had communicated those concerns to Ashcroft, who nonetheless made the decision to merge the lists.
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1

The dissent argues that the OIG Report forecloses the plausibility of the

2 allegation that Levey brought the list‐merger decision to Ashcroft because

3 “Levey made the lists‐merger decision ‘[a]t the conclusion of the [November 2]

4 meeting’ at which the subject was first raised to him.” Dissenting Op., post at 49

5 (quoting OIG Report at 56). But the OIG Report does not indicate that the merger

6 issue was first raised to Levey at the November 2 meeting. Rather, the OIG

7 Report makes clear that the issue of the New York List was discovered in

8 October 2001,29 and that the decision to merge the lists was communicated at the

9 November 2 meeting. Thus, surely it is plausible that Levey consulted with more

10 senior officials, including Ashcroft, prior to that meeting.30 Of course, discovery

11 may show that Levey was solely responsible for the decision. But, again, the

29 While the dissent’s observation that Levey did not attend the October 22, 2001 meeting during which the “problems presented by the New York List” were discussed is accurate, it is also irrelevant. See Dissenting Op., post at 49–50 (quoting OIG Report at 55). We do not contend that Levey learned about the New York List at the October 22 meeting, but simply that he learned about it before the November 2 meeting, giving him time to consult with more senior officials, including Ashcroft, before communicating a decision at that November meeting. Indeed, one would think that Levey would not attend the November 2 meeting without knowing its agenda. 30 The dissent challenges the sufficiency of Plaintiffs’ allegations and our reading of them as “wholly speculative.” Dissenting Op., post at 48. Of course, Plaintiffs have no way of knowing what Levey and Ashcroft discussed; nor do we. Iqbal does not require as much, but rather “sufficient factual matter, accepted as true” to allow the court to draw the reasonable inference that Ashcroft was ultimately responsible for the decision. 556 U.S. at 678. We believe that Plaintiffs have met this burden.
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1 question is whether Plaintiffs’ allegations support the inference that the decision

2 was Ashcroft’s; they do.

3

The MDC Plaintiffs’ allegations against Mueller and Ziglar are also

4 sufficient. The Complaint alleges, inter alia, that Ashcroft made the decision to

5 merge the lists in spite of the lack of individualized suspicion linking the MDC

6 Plaintiffs to terrorism and that “Mueller and Ziglar were fully informed of this

7 decision, and complied with it.” Compl. ¶ 47; see also id. ¶¶ 55−57, 67. Mueller

8 and Ziglar are not exculpated from this claim merely because Plaintiffs allege

9 that they complied with, as opposed to ordered, the list merger. Plaintiffs

10 plausibly plead that both were aware that the separate list contained detainees

11 for whom the FBI had asserted no interest and that subjecting them to the

12 challenged conditions would be facially unreasonable. Even if an official is not

13 the source of a challenged policy, that official can be held personally liable for

14 constitutional violations stemming from the execution of his superior’s orders if

15 those orders are facially invalid or clearly illegal. See, e.g., Varrone v. Bilotti, 123

16 F.3d 75, 81 (2d Cir. 1997) (granting defendants qualified immunity where there

17 was “no claim that the order was facially invalid or obviously illegal”). In this

18 instance, Plaintiffs plausibly allege that Ashcroft’s decision was facially invalid; it

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1 would be unreasonable for Mueller and Ziglar to conclude that holding ordinary

2 civil detainees under the most restrictive conditions of confinement available was

3 lawful.

4

4. Punitive Intent

5

The MDC Plaintiffs must show not only that the DOJ Defendants knew of

6 and approved continued use of the ADMAX SHU, but also that they did so with

7 punitive intent—that they endorsed the use of those conditions with an intent to

8 punish the MDC Plaintiffs. Federal courts have long recognized that punitive

9 intent is not often admitted. The Supreme Court has noted that it can be inferred

10 if the conditions of confinement are “not reasonably related to a legitimate goal.”

11 Wolfish, 441 U.S. at 539. If the conditions under which one is held have no

12 reasonable connection to a legitimate goal of the state, then one logical

13 assumption is that they are imposed for no other purpose than to punish. See id.

14

The DOJ Defendants argue that even if they knew of the plight of the MDC

15 Plaintiffs, the decision to continue their confinement at the MDC under

16 exceptionally harsh conditions was motivated by national security concerns—a

17 legitimate worry during the days following the 9/11 attacks—and not some

18 animus directed at the MDC Plaintiffs. They seem to imply that once “national

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1 security” concerns become a reason for holding someone, there is no need to

2 show a connection between those concerns and the captive other than that the

3 captive shares common traits of the terrorist: illegal immigrant status and a

4 perceived Arab or Muslim affiliation. Indeed, our dissenting colleague asserts

5 that because the MDC Plaintiffs were, or appeared to be, members of the

6 group—Arab or Muslim males—that was targeted for recruitment by al Qaeda

7 that they could be held in the ADMAX SHU without any reasonable suspicion of

8 terrorist activity. Dissenting Op., post at 64–65, 76–77. Under this view, the MDC

9 Plaintiffs were not held with punitive intent because there was no way to know

10 that they were not involved in terrorist activities. Simply being in the United

11 States illegally and being, or appearing to be, Arab or Muslim was enough to

12 justify detention in the most restrictive conditions of confinement available.

13 Indeed, Levey admitted that the decision to merge the lists, ensuring that some

14 of the 9/11 detainees would be subject to the challenged harsh conditions of

15 confinement, was made because he “wanted to err on the side of caution so that a

16 terrorist would not be released by mistake.” OIG Report at 56.

17

This argument rests on the assumption that if an individual was an out‐of‐

18 status Arab or Muslim, and someone called the FBI for even the most absurd

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1 reason, that individual was considered a possible threat to national security. It

2 presumes, in essence, that all out‐of‐status Arabs or Muslims were potential

3 terrorists until proven otherwise. It is built on a perception of a race and faith

4 that has no basis in fact. There was no legitimate governmental purpose in

5 holding someone in the most restrictive conditions of confinement available

6 simply because he happened to be—or, worse yet, appeared to be—Arab or

7 Muslim.

8

To be clear, it is “no surprise”—nor is it constitutionally problematic—that

9 the enforcement of our immigration laws in the wake of 9/11 had a “disparate,

10 incidental impact on Arab Muslims.” Iqbal, 556 U.S. at 682. And we do not

11 contend that Supreme Court, or our own, precedent requires individualized

12 suspicion to subject detainees to generally restrictive conditions of confinement;

13 restriction is an incident of detention. Rather, we simply acknowledge that “if a

14 restriction or condition is not reasonably related to a legitimate goal—if it is

15 arbitrary or purposeless—a court permissibly may infer that the purpose of the

16 governmental action is punishment that may not constitutionally be inflicted

17 upon detainees qua detainees.” Wolfish, 441 U.S. at 539. We believe, then, that

18 the challenged conditions—keeping detainees in their cells for twenty‐three

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1 hours a day, constructively denying them recreation and exposing them to the

2 elements, strip searching them whenever they were removed from or returned to

3 their cells, denying them sleep by bright lights—were not reasonably related to a

4 legitimate goal, but rather were punitive and unconstitutional.

5

While national security concerns could justify detaining those individuals

6 with suspected ties to terrorism in these challenged conditions for the litany of

7 reasons articulated by the dissent, see Dissenting Op., post at 67–68, those

8 concerns do not justify detaining individuals solely on the basis of an

9 immigration violation and their perceived race or religion in those same

10 conditions. Individualized suspicion is required here because, absent some

11 indication that the detainees had a tie to terrorism, the restrictions or conditions

12 of the ADMAX SHU were “arbitrary or purposeless.” Wolfish, 441 U.S. at 539.31

31 The dissent cites several cases that it claims demonstrate that individualized suspicion is not required for imposing restrictive conditions of confinement. Dissenting Op., post at 62–63. We do not disagree: individualized suspicion is not required to impose conditions that are reasonably related to a legitimate governmental objective. Wolfish, 441 U.S. at 539. Thus, in each of the cases cited by the dissent, rather than announce that individualized suspicion was not required, the Supreme Court determined that the restrictions at issue in each of those cases were related to the legitimate goal of prison security and, therefore, were not punitive. Thus, the cases cited by the dissent do not change our conclusion here, where the challenged conditions—the most restrictive available and imposed on detainees qua detainees—are not reasonably related to either the goal of prison security, or national security.
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1

Indeed, in Wolfish, the Supreme Court acknowledged that “loading a

2 detainee with chains and shackles and throwing him in a dungeon may ensure

3 his [detention] and preserve the security of the institution. But it would be

4 difficult to conceive of a situation where conditions so harsh, employed to

5 achieve objectives that could be accomplished in so many alternative and less

6 harsh methods, would not support a conclusion that the purpose for which they

7 were imposed was to punish.” Id. at 539 n.20. That is the situation before us.

8 Clearly detention conditions less restrictive than the ADMAX SHU were feasible

9 for the MDC Plaintiffs, given that the detainees held in the Passaic facility “were

10 not held in isolation or otherwise placed in restrictive confinement.” Compl.

11 ¶ 66. Placing the MDC Plaintiffs in chains and shackles and throwing them in

12 the ADMAX SHU ensured that they posed no threat in the aftermath of 9/11; but

13 we can reach no conclusion other than that the DOJ Defendants’ decision to do so

14 was made with punitive intent.

15

In view of the foregoing, we hold that the MDC Plaintiffs fail to plausibly

16 plead a substantive due process claim against the DOJ Defendants coextensive

17 with the entire post‐9/11 investigation and reaching back to the time of Plaintiffs’

18 initial detention. Nonetheless, Plaintiffs’ well‐pleaded allegations, in conjunction

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1 with the OIG Report’s documentation of events such as the New York List

2 controversy, render plausible the claim that by the beginning of November 2001,

3 Ashcroft knew of, and approved, the MDC Plaintiffs’ confinement under severe

4 conditions, and that Mueller and Ziglar complied with Ashcroft’s order

5 notwithstanding their knowledge that the government had no evidence linking

6 the MDC Plaintiffs to terrorist activity. Discovery may ultimately prove

7 otherwise, but for present purposes, the MDC Plaintiffs’ substantive due process

8 claim—with the exception of the temporal limitation noted above—may proceed

9 against the DOJ Defendants.

10

5. Qualified Immunity

11

A defendant is entitled to qualified immunity if he can establish (1) that

12 the complaint fails to plausibly plead that the defendant personally violated the

13 plaintiff’s constitutional rights, or (2) that the right was not clearly established at

14 the time in question. See Pearson v. Callahan, 555 U.S. 223, 232 (2009); Varrone, 123

15 F.3d at 78 (noting that the qualified immunity inquiry turns, generally, on the

16 objective legal reasonableness of a defendant’s actions).

17

For the reasons stated above, the MDC Plaintiffs plausibly plead that the

18 DOJ Defendants violated their substantive due process rights. With regard to the

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1 second prong of this inquiry, the law regarding the punishment of pretrial

2 detainees was clearly established in the fall of 2001. As discussed, Wolfish made

3 clear that a particular condition or restriction of pretrial detention not reasonably

4 related to a legitimate governmental objective is punishment in violation of the

5 constitutional rights of detainees. See 441 U.S. at 535−39 & n.20. And in Hasty,

6 this Court denied qualified immunity with respect to a materially identical

7 conditions claim against Hasty. 490 F.3d at 168−69. We explained that “[t]he

8 right of pretrial detainees to be free from punitive restraints was clearly

9 established at the time of the events in question, and no reasonable officer could

10 have thought that he could punish a pretrial detainee by subjecting him to the

11 practices and conditions alleged by the Plaintiff.” Id. at 169.

12

Hasty further rejected the argument that the post‐9/11 context warranted

13 qualified immunity even if it was otherwise unavailable. Id. at 159−60, 169.

14 Recognizing the “gravity of the situation” that 9/11 presented, we explained that

15 qualified immunity remained inappropriate because a pretrial detainee’s right to

16 be free from punishment does not vary with the surrounding circumstances. Id.

17 at 159. Nothing has undermined the logic or precedential authority of our

18 qualified immunity holding in Hasty. We therefore conclude that the DOJ

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1 Defendants are not entitled to qualified immunity on the MDC Plaintiffs’

2 conditions of confinement claim.

3

C. The MDC Defendants

4

In his opinion below, Judge Gleeson divided the MDC Plaintiffs’

5 conditions of confinement claim against the MDC Defendants into two

6 categories: “official conditions” allegations and “unofficial abuse” allegations.

7 The “official conditions” allegations concern express confinement policies that

8 the MDC Defendants approved and implemented; the “unofficial abuse”

9 allegations concern the physical and verbal abuse that the MDC Defendants

10 employed or permitted their subordinates to employ. We find this taxonomy

11 helpful in analyzing the conditions claim against Hasty, Sherman, and Zenk.32

12

1. Official Conditions

13

The MDC Plaintiffs generally allege that the “official conditions” to which

14 the MDC Defendants subjected them constituted punishment. We do not

15 address whether Plaintiffs have sufficiently alleged an express intent to punish,

16 but rather analyze whether they have plausibly pleaded that (1) the MDC

32 Plaintiffs’ allegations against Zenk do not extend to the “unofficial abuse” nor to any harm arising from the “official conditions” that occurred prior to April 22, 2002, the date he became MDC Warden.
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1 Defendants caused them to suffer the challenged conditions, and that (2) the

2 challenged conditions were “not reasonably related to a legitimate goal,” which

3 allows us to infer punitive intent, Wolfish, 441 U.S. at 539.

4

The MDC Plaintiffs plausibly plead that Hasty and Sherman are personally

5 responsible for and caused the MDC Plaintiffs to suffer the challenged

6 conditions. The Complaint contains allegations that Hasty ordered the creation

7 of the ADMAX SHU and directed two of his subordinates to design “extremely

8 restrictive conditions of confinement.” Compl. ¶¶ 24, 75; see also id. ¶ 76

9 (describing the extreme conditions in the ADMAX SHU). According to the

10 Complaint, those conditions were then approved and implemented by Hasty and

11 Sherman. Id. ¶ 75.

12

The OIG reports support these allegations. While the decision to impose

13 highly restrictive conditions was made at BOP headquarters, OIG Report at 19,

14 MDC officials created the particular conditions imposed, id. at 124–25. The

15 reports specify that MDC officials modified one wing of the preexisting SHU to

16 accommodate the detainees and that the ADMAX SHU was “designed to confine

17 the detainees in the most restrictive and secure conditions permitted by BOP

18 policy.” Supplemental OIG Report at 2–3. As Warden and Associate Warden of

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1 the MDC, Hasty and Sherman had the responsibility to carry out these tasks. But

2 that alone would not sustain liability for either.

3

However, the MDC Plaintiffs also plausibly plead that Hasty and Sherman

4 subjected them to the challenged conditions with punitive intent because the

5 conditions were “not reasonably related to a legitimate goal.” Wolfish, 441 U.S. at

6 539. Specifically, the MDC Plaintiffs allege that Hasty and Sherman imposed

7 these harsh conditions despite the fact that they “were aware that the FBI had not

8 developed any information to tie the MDC Plaintiffs [and other detainees] they

9 placed in the ADMAX SHU to terrorism.” Compl. ¶ 69. As discussed above

10 with respect to the DOJ Defendants, individualized suspicion was not required

11 to subject detainees to the restrictive conditions of confinement inherent in any

12 detention. But the challenged conditions were not simply restrictive; they were

13 punitive: there is no legitimate governmental purpose in holding someone as if

14 he were a terrorist simply because he happens to be, or appears to be, Arab or

15 Muslim.

16

The MDC Defendants, and our dissenting colleague, note that BOP

17 Headquarters ordered that the detainees “be placed in the highest level of

18 restrictive detention” and, thus, argue that we cannot infer punitive intent from

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1 the MDC Defendants’ compliance with that order. See Dissenting Op., post at 70

2 n.40, 71 (quoting OIG Report at 112). They further claim that because the FBI had

3 designated the individuals held in the ADMAX SHU as “of interest,” the MDC

4 Defendants are absolved from liability. See, e.g., Hasty Br. 17, 25–26.

5

But even if Hasty and Sherman initially believed that they would be

6 housing only those detainees who were suspected of ties to terrorism, the

7 Complaint contains sufficient factual allegations that the MDC Defendants

8 eventually knew that the FBI lacked any individualized suspicion for many of

9 the detainees that were sent to the ADMAX SHU. Plaintiffs allege that Hasty

10 and Sherman received regular written updates explaining why each detainee had

11 been arrested and including “all evidence relevant to the danger he might pose”

12 to the MDC, and that these updates often lacked any indication of a suspicion of

13 a tie to terrorism. Compl. ¶ 69.33 They further explain that “[t]he exact language

14 of these updates was repeated weekly, indicating the continued lack of any

33 For example, the MDC Defendants were informed that Plaintiff Abbasi was “‘encountered’ by INS pursuant to an FBI lead; that he used a fraudulent passport to enter the U.S. to seek asylum, and later destroyed that passport; that he requested and was denied various forms of immigration relief; that he obtained and used a fraudulent advance parole letter to enter the country, and that he was thus inadmissible. The update included no statement of FBI interest in Abbasi.” Compl. ¶ 72.
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1 information tying [Plaintiffs] to terrorism, or tending to show that any of them

2 might pose a danger.” Id. ¶ 73.

3

The MDC Plaintiffs relatedly allege that Hasty and Sherman knew that

4 BOP regulations require individualized assessments for detainees placed in the

5 SHU for more than seven days, yet ordered the MDC Plaintiffs’ continued

6 detention in the ADMAX SHU without performing these assessments, and Hasty

7 “ordered [his] subordinates to ignore BOP regulations regarding detention

8 conditions.” Id. ¶ 68; see also id. ¶¶ 73–74.

9

The MDC Plaintiffs further allege that Hasty and Sherman approved a

10 document that falsely stated that “executive staff at MDC had classified the

11 ‘suspected terrorists’ as ‘High Security’ based on an individualized assessment of

12 their ‘precipitating offense, past terrorist behavior, and inability to adapt to

13 incarceration.’” Id. ¶ 74. In addition, the MDC Plaintiffs allege that Hasty and

14 Sherman continued to detain them in the ADMAX SHU even after affirmatively

15 learning that the FBI lacked individualized evidence linking Plaintiffs to

16 terrorism. See id. ¶¶ 69−71, 74. These allegations are buttressed by Plaintiffs’

17 assertions that they remained confined in the ADMAX SHU even after receiving

18 final clearance from the New York FBI field office and FBI Headquarters. For

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1 instance, the Complaint alleges that Benamar Benatta was cleared on November

2 14, 2001, that this information was available to the MDC, and that Benatta

3 nonetheless remained in the ADMAX SHU until April 30, 2002. See id. ¶ 188.

4

The OIG Report directly supports these allegations; as stated by one BOP

5 official, all 9/11 detainees at the MDC were placed in the ADMAX SHU and

6 subjected to the official conditions because, at least initially, “the BOP did not

7 really know whom the detainees were.” OIG Report at 19; see also Compl. ¶ 4;

8 OIG Report at 112, 126. Specific factual allegations that Hasty and Sherman

9 failed to assess whether the restrictive conditions were appropriate for

10 individual 9/11 detainees buttress the MDC Plaintiffs’ claim that the challenged

11 conditions were not reasonably related to a legitimate goal, and that Hasty and

12 Sherman were personally responsible for the treatment.

13

We recognize that the MDC Defendants may have been in a difficult

14 position when they received detainees without accompanying information

15 regarding those individuals. Record proof may eventually establish that the

16 MDC Plaintiffs’ claim is limited to the period of time that Hasty and Sherman

17 knew that the MDC Plaintiffs were being held without suspicion of ties to

18 terrorism. But we cannot conclude, at least at the motion to dismiss stage, that it

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1 was reasonable to take a default position of imposing the most restrictive form of

2 detention available when one lacks individualized evidence that the detainee

3 poses a danger to the institution or the nation. Accordingly, we conclude that

4 the MDC Plaintiffs plausibly plead a substantive due process claim against Hasty

5 and Sherman as to the official conditions.

6

The Complaint does not, however, permit an inference of personal liability

7 as to Zenk, who did not become MDC Warden until April 22, 2002, when only

8 two Plaintiffs remained in the ADMAX SHU. Fundamentally, the allegations

9 that personally identify Zenk are too general and conclusory to support

10 Plaintiffs’ claim. We therefore dismiss the MDC Plaintiffs’ substantive due

11 process claim against Zenk.

12

2. Unofficial Abuse

13

The district court properly viewed the MDC Plaintiffs’ “unofficial abuse”

14 allegations under the deliberate indifference standard commonly applied in the

15 Eighth Amendment prisoner‐mistreatment context. See Turkmen III, 915 F. Supp.

16 2d at 341 & n.13.34 Given the nature of the MDC Plaintiffs’ “unofficial abuse”

34 The deliberate indifference standard would clearly apply if the MDC Plaintiffs had been prisoners entitled to the Eighth Amendment’s protection against cruel and unusual punishment. See Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). Because a
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1 allegations, premising liability on Hasty and Sherman’s deliberate indifference is

2 consistent with Iqbal’s holding that Bivens defendants are liable only if, through

3 their own actions, they satisfy each element of the underlying constitutional tort.

4 See 556 U.S. at 676.

5

Prior to Iqbal, this Court recognized claims against a supervisory defendant

6 so long as the defendant was personally involved with the alleged constitutional

7 violation. In Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), this Court

8 identified five ways in which a plaintiff may establish a defendant’s personal

9 involvement. One is through a defendant’s “deliberate indifference.” Id. As the

10 district court explained, the fact that a particular type of conduct constitutes

11 “personal involvement” under Colon does not inherently preclude the conduct

12 from also supporting a theory of direct liability. Turkmen III, 915 F. Supp. 2d at

13 335–36. For instance, plausibly pleading that a defendant “participated directly

14 in the alleged constitutional violation”—one form of personal involvement

pretrial detainee’s rights are at least as robust as those of a sentenced prisoner, we have applied the Eighth Amendment deliberate indifference test to pretrial detainees bringing claims under the Due Process Clause of the Fifth Amendment. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). We do not address whether civil immigration detainees should be governed by an even more protective standard than pretrial criminal detainees.

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1 enumerated in Colon, 58 F.3d at 873—could establish direct, as opposed to

2 vicarious, liability. The proper inquiry is not the name we bestow on a particular

3 theory or standard, but rather whether that standard—be it deliberate

4 indifference, punitive intent, or discriminatory intent—reflects the elements of

5 the underlying constitutional tort. See Iqbal, 556 U.S. at 676 (“The factors

6 necessary to establish a Bivens violation will vary with the constitutional

7 provision at issue.”).

8

Our conclusion is consistent with Iqbal, this Court’s prior rulings, see

9 Walker, 717 F.3d at 125, and the weight of Circuit precedent. For instance, in Starr

10 v. Baca, 652 F.3d 1202, 1206–07 (9th Cir. 2011), the Ninth Circuit determined that

11 Iqbal does not preclude Bivens claims premised on deliberate indifference when

12 the underlying constitutional violation requires no more than deliberate

13 indifference. See also Dodds v. Richardson, 614 F.3d 1185, 1204–05 (10th Cir. 2010);

14 Sandra T.E. v. Grindle, 599 F.3d 583, 590–91 (7th Cir. 2010); Sanchez v. Pereira–

15 Castillo, 590 F.3d 31, 49 (1st Cir. 2009).

16

The MDC Plaintiffs’ “unofficial abuse” claim therefore survives so long as

17 Plaintiffs plausibly plead that the conditions were sufficiently serious, and Hasty

18 and Sherman “kn[e]w of, and disregard[ed], an excessive risk to inmate health or

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1 safety.” Walker, 717 F.3d at 125 (internal quotation marks omitted); accord Cuoco,

2 222 F.3d at 107. The MDC Plaintiffs clearly meet this standard with respect to

3 Hasty. Simply stated, their factual allegations permit the inference that he knew

4 that MDC staff subjected the MDC Plaintiffs to the “unofficial abuses” and

5 permitted—if not facilitated—the continuation of these abuses. See Compl.

6 ¶¶ 24, 77–78, 107, 109−10.

7

For example, the Complaint contains allegations that Hasty avoided

8 evidence of detainee abuse by “neglecting to make rounds on the ADMAX

9 [SHU] unit,” as was required of him by BOP policy. Id. ¶ 24. The MDC Plaintiffs

10 also allege that Hasty was nonetheless made aware of the abuse “through inmate

11 complaints, staff complaints, hunger strikes, and suicide attempts.” Id.; see also

12 id. ¶¶ 77–78 (detailing how Hasty made it difficult for detainees to file

13 complaints and ignored the evidence when they did, and how staff officials who

14 complained were called “snitches” and were threatened). Indeed, complaints

15 about abuse of 9/11 detainees were pervasive enough to cause the BOP to

16 videotape all detainee movements and resulted in the investigations later

17 detailed in the OIG reports. Id. ¶ 107. The MDC Plaintiffs also complain that

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1 Hasty encouraged his subordinates’ harsh treatment of the detainees by himself

2 referring to the detainees as terrorists. Id. ¶¶ 77, 109.

3

The allegations against Sherman, because they are more general and

4 conclusory in nature, are more tenuous. For instance, Plaintiffs allege principally

5 that Sherman “allowed his subordinates to abuse MDC Plaintiffs and class

6 members with impunity. Sherman made rounds on the ADMAX SHU and was

7 aware of conditions there.” Id. ¶ 26. These allegations lack a specific factual

8 basis to support a claim that Sherman was aware of the particular abuses at

9 issue. Therefore, we hold that the MDC Plaintiffs fail to plausibly plead an

10 unofficial conditions claim as to Sherman.35

11

3. Qualified Immunity

12

The MDC Defendants claim that qualified immunity is appropriate

13 because they were merely following the orders of BOP superiors, “with the input

14 and guidance of the FBI and INS.” See, e.g., Hasty Br. 33. Specifically, Hasty

15 claims that the “BOP, INS, and FBI officials ordered [him] to place ‘high interest’

16 9/11 detainees in the ADMAX SHU, and directed that they be subject to the

17 ‘tightest’ security possible.” Id. He further argues that “[t]he sole basis for the

35 The MDC Plaintiffs nonetheless maintain a substantive due process claim against Sherman as to the official conditions, as discussed supra.

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1 detainees’ confinement in the ADMAX SHU—the FBI’s investigative interest—

2 was outside the scope of MDC officials’ discretion.” Id. at 35. By extension, he

3 claims that it was reasonable to detain the MDC Plaintiffs and other “high

4 interest” 9/11 detainees in the ADMAX SHU.

5

These arguments fail. First, as with the DOJ Defendants, our qualified

6 immunity analysis in Hasty applies with equal force to the MDC Plaintiffs’

7 conditions claim against Hasty and Sherman in this case. See Hasty, 490 F.3d at

8 168–69. In 2001, it was clearly established that punitive conditions of

9 confinement, like those involved here, could not be imposed on pretrial

10 detainees such as the MDC Plaintiffs. As discussed above with respect to the

11 DOJ Defendants, Wolfish made clear that a condition of pretrial detention not

12 reasonably related to a legitimate governmental objective is punishment in

13 violation of the constitutional rights of detainees. See 441 U.S. at 535–39 & n.20;

14 Hasty, 490 F.3d at 169. Furthermore, given the nearly identical claims and

15 circumstances in Hasty and this case, we see no reason to depart from our prior

16 determination that Hasty was not entitled to qualified immunity.

17

Nor is Hasty entitled to qualified immunity with regard to the unofficial

18 conditions claim. As discussed, the MDC Plaintiffs have plausibly alleged that

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1 Hasty personally violated their constitutional rights by knowing of, and

2 disregarding, an excessive risk to their health or safety. The right of the MDC

3 Plaintiffs to be free from such unofficial abuse was clearly established at the time

4 of the events in question. See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc.

5 Servs., 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its

6 power so restrains an individual’s liberty that it renders him unable to care for

7 himself, and at the same time fails to provide for his basic human needs—e.g.,

8 food, clothing, shelter, medical care, and reasonable safety—it transgresses the

9 substantive limits on state action set by . . . the Due Process Clause.”); see also

10 Walker, 717 F.3d at 125, 130; Cuoco, 222 F.3d at 106.

11

Plaintiffs’ allegations, the OIG Report, and the MDC Defendants’

12 arguments confirm that Hasty and Sherman housed 9/11 detainees for extended

13 periods of time in highly restrictive conditions without ever obtaining

14 individualized information that would warrant this treatment. Because

15 Plaintiffs’ allegations support an inference of punitive intent, and it would be

16 inappropriate to wrestle with competing factual accounts at this stage of the

17 litigation, we hold that a reasonable officer in the MDC Defendants’ position

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1 would have concluded that this treatment was not reasonably related to a

2 legitimate goal.

3 IV. Claim 2: Equal Protection − Conditions of Confinement

4

Plaintiffs next assert a claim that Defendants subjected them to the harsh

5 conditions of confinement detailed above based on their race, ethnicity, religion,

6 and/or national origin, in violation of the equal protection guarantee of the Fifth

7 Amendment.36

8

A. Applicable Legal Standard

9

To state an equal protection violation under the Fifth Amendment, “the

10 plaintiff must plead and prove that the defendant acted with discriminatory

11 purpose.” Iqbal, 556 U.S. at 676. “[P]urposeful discrimination requires more than

12 intent as volition or intent as awareness of consequences.” Id. (internal quotation

13 marks omitted). “It instead involves a decisionmaker’s undertaking a course of

14 action because of, not merely in spite of, [the action’s] adverse effects upon an

15 identifiable group.” Id. at 676–77 (alteration in original) (internal quotation

16 marks omitted).

36 All Plaintiffs assert an equal protection claim against the DOJ Defendants. Abbasi, Khalifa, Mehmood, and Bajracharya do not assert this claim against Zenk, and Sachdeva and Turkmen do not make this claim against any of the MDC Defendants.
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1

A plaintiff can show intentional discrimination by: (1) “point[ing] to a law

2 or policy that expressly classifies persons on the basis of” a suspect classification;

3 (2) “identify[ing] a facially neutral law or policy that has been applied in an

4 intentionally discriminatory manner[;]” or (3) “alleg[ing] that a facially neutral

5 statute or policy has an adverse effect and that it was motivated by

6 discriminatory animus.” Brown v. City of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir.

7 2000) (internal quotation marks omitted).

8

The district court characterized Plaintiffs’ equal protection claim as falling

9 within the first category—that is, a claim that Defendants subjected Plaintiffs to

10 the challenged conditions of confinement pursuant to a policy that expressly

11 classified Plaintiffs on the basis of their race, ethnicity, religion, and/or national

12 origin. Given our reading of Plaintiffs’ allegations and arguments on appeal, we

13 will not analyze this claim, particularly as it relates to the MDC Defendants,

14 under the first equal protection theory alone.

15

B. The DOJ Defendants

16

The district court concluded that Plaintiffs failed to state an equal

17 protection claim against the DOJ Defendants, but “f[ou]nd the issue to be a close

18 one.” Turkmen III, 915 F. Supp. 2d at 345. In view of our analysis of Plaintiffs’

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1 substantive due process claim against the DOJ Defendants, and particularly these

2 Defendants’ roles with respect to the merger of the New York List, we hold that

3 the MDC Plaintiffs have adequately alleged an equal protection claim against

4 Ashcroft, Mueller, and Ziglar.

5

Plaintiffs’ well‐pleaded allegations and the OIG Report give rise to the

6 following reasonable inferences, which render plausible the MDC Plaintiffs’

7 equal protection claim against the DOJ Defendants: (1) the New York FBI field

8 office discriminatorily targeted individuals in the 9/11 investigation not based on

9 individualized suspicion, but rather based on race, ethnicity, religion, and/or

10 national origin, and those individuals were then placed on the New York List;

11 (2) the DOJ Defendants knew about the discriminatory manner in which the New

12 York FBI field office placed individuals on the New York List; and (3) the DOJ

13 Defendants condoned the New York FBI’s discrimination by merging the New

14 York List with the INS List, thereby ensuring that some of the individuals on the

15 New York List would be subjected to the challenged conditions of confinement.

16

Plaintiffs allege that the New York FBI field office targeted individuals in

17 the PENTTBOM investigation and placed them on the New York List based on

18 race, ethnicity, religion, and/or national origin. “[T]he head of the New York FBI

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1 field office stated that an individual’s Arab appearance and status as a Muslim

2 were factors to consider in the investigation.” Compl. ¶ 42. Even more telling, a

3 supervisor in the same local FBI office, “who oversaw the clearance process[,]

4 stated that a tip about Russian tourists filming the Midtown tunnel was

5 ‘obviously’ of no interest, but that the same tip about Egyptians was of interest.”

6 Id. Individuals who were arrested by the New York FBI and INS in connection

7 with a PENTTBOM lead were automatically treated as “of interest,” OIG Report

8 at 40–41, and were placed on the New York List, see id. at 53.

9

This discriminatory approach, focusing on “an individual’s Arab

10 appearance,” Compl. ¶ 42, is consistent with what is alleged to have occurred in

11 Bajracharya’s case. Bajracharya, who as noted, is a Buddhist and native of Nepal,

12 came to the FBI’s attention when an employee from the Queens County District

13 Attorney’s Office “observed an ‘[A]rab male’ videotaping outside a Queens[]

14 office building that contained the Queens County District Attorney[’s] Office and

15 a New York FBI office.” Id. ¶ 230. Investigators from the District Attorney’s

16 Office questioned Bajracharya about “why he was taking pictures,” and

17 Bajracharya “tried to explain that he was a tourist.” Id. He was arrested after

18 acknowledging he overstayed his visa and was detained in the ADMAX SHU.

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1 Given the Complaint’s allegations regarding the New York FBI’s tactics, it is

2 reasonable to infer that officials in the New York FBI targeted certain individuals,

3 including Plaintiffs, for investigation, arrest, and placement on the New York

4 List simply because they were, or appeared to be, Arab or Muslim, and not

5 because of any suspicion regarding a link to terrorism.

6

As we conclude above with respect to the substantive due process claim,

7 the DOJ Defendants were informed of the problems presented by the New York

8 List. As noted, the OIG Report reveals that by October 2001 the SIOC Working

9 Group learned about the New York List and that “officials at the INS, FBI, and

10 [DOJ] raised concerns about, among other things, whether the aliens had any

11 nexus to terrorism.” OIG Report at 53. Plaintiffs allege that a high‐ranking DOJ

12 official noted that individuals were detained “without any attempt” to determine

13 if they were of “actual interest,” and that the official “was concerned early in the

14 investigation that detainees were being held simply on the basis of their

15 ethnicity.” Compl. ¶ 45. The DOJ Defendants were unlikely to have remained

16 unaware of these concerns, as they “received detailed daily reports of the arrests

17 and detentions,” id. ¶ 47, see also id. ¶¶ 63–64, and Mueller “was in daily contact

18 with the FBI field offices regarding the status of individual clearances,” id. ¶ 57.

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1 In light of these allegations, we can reasonably infer that these Defendants were

2 aware that the New York FBI field office was placing individuals on the New

3 York List not because of any suspected ties to terrorism but rather because they

4 were, or were perceived to be, Arab or Muslim.

5

While the DOJ Defendants’ mere knowledge of this discriminatory action

6 by the New York FBI field office would be insufficient to allow for the reasonable

7 inference that these Defendants possessed the discriminatory purpose required

8 to state an equal protection claim, Plaintiffs’ allegations are not limited to the

9 DOJ Defendants’ knowledge alone. Rather, as we discuss in detail in the

10 substantive due process analysis above, Plaintiffs plausibly plead that Ashcroft

11 made the decision to merge the New York List with the national INS List,

12 ensuring that some of the individuals on the New York List would be placed in,

13 or remain detained in, the challenged conditions of confinement. Plaintiffs

14 further allege that Mueller and Ziglar were aware that the New York List

15 contained detainees against whom the FBI had asserted no interest and that

16 subjecting them to the challenged conditions would be facially unreasonable. In

17 ordering and complying with the merger of the New York List, the DOJ

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1 Defendants actively condoned the New York FBI field office’s discriminatory

2 formulation of that list.

3

The DOJ Defendants’ condonation of the New York FBI field office’s

4 purposeful discrimination allows us to reasonably infer at the motion to dismiss

5 stage that the DOJ Defendants themselves acted with discriminatory purpose.

6 The Supreme Court in Iqbal stated that “discrete wrongs—for instance,

7 beatings—by lower level Government actors[] . . . if true, and if condoned by

8 [Ashcroft and Mueller], could be the basis for some inference of wrongful intent

9 on [Ashcroft and Mueller’s] part.” 556 U.S. at 683. In a similar vein, we have

10 held, in a case involving an equal protection claim under 42 U.S.C. § 1983, that a

11 reasonable factfinder could conclude that the Commissioner of the Fire

12 Department of the City of New York intended to discriminate when he decided

13 to continue to use the results of employment examinations that he knew had a

14 disparate impact based on race. See United States v. City of New York, 717 F.3d 72,

15 94 (2d Cir. 2013). Here, it is reasonable to infer that Ashcroft, Mueller, and Ziglar

16 possessed the requisite discriminatory intent because they knew that the New

17 York List was formed in a discriminatory manner, and nevertheless condoned

18 that discrimination by ordering and complying with the merger of the lists,

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1 which ensured that the MDC Plaintiffs and other 9/11 detainees would be held in

2 the challenged conditions of confinement.

3

Contrary to the dissent’s contentions, see Dissenting Op., post at 76−78, this

4 case is distinguishable from Iqbal, where the Supreme Court concluded that the

5 plaintiff failed to state an equal protection claim. In Iqbal, there were “more

6 likely explanations” for why the plaintiff was detained in harsh conditions other

7 than his race, religion, or national origin. 556 U.S. at 681. Those more likely

8 explanations for the plaintiff’s treatment, according to the Supreme Court, were

9 that Ashcroft and Mueller supported “a legitimate policy . . . to arrest and detain

10 individuals because of their suspected link to the attacks,” which “produce[d] a

11 disparate, incidental impact on Arab Muslims, even though the purpose of the

12 policy was to target neither Arabs nor Muslims.” Id. at 682 (emphasis added).

13 The Supreme Court noted that “[o]n the facts respondent alleges the arrests Mueller

14 oversaw were likely lawful and justified by his nondiscriminatory intent to

15 detain aliens who were illegally present in the United States and who had potential

16 connections to those who committed terrorist acts.” Id. (emphasis added); see also id.

17 at 683 (noting that all the allegations in Iqbal “suggest[ed] is that the Nation’s top

18 law enforcement officers . . . sought to keep suspected terrorists in the most secure

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1 conditions available until the suspects could be cleared of terrorist activity”

2 (emphasis added)).

3

In this case, unlike in Iqbal, it is not “more likely” that the MDC Plaintiffs

4 were detained in the challenged conditions because of their suspected ties to the

5 9/11 attacks. Indeed, as discussed at length earlier, Plaintiffs have plausibly

6 alleged that they were detained without any suspicion of a link to terrorist

7 activity and that the DOJ Defendants knew that the government lacked

8 information tying Plaintiffs to terrorist activity, but decided to merge the lists

9 anyway.37 Thus, unlike in Iqbal, there was no legitimate reason to detain the

10 MDC Plaintiffs in the challenged conditions and, thus, no obvious, more likely

37 Given the clear language used by the Supreme Court in Iqbal regarding the detainees’ connections to terrorism, 556 U.S. at 682−83, we understand the Iqbal Court to have rejected as conclusory the allegation in the Iqbal complaint identified by the dissent, which only pleads in the broadest terms that the Iqbal plaintiffs were confined without “any individual determination” that such restrictions were “appropriate or should continue.” See Dissenting Op., post at 81−82 (quoting First Am. Compl. ¶ 97, App. to Pet. for Cert. 173a, Ashcroft v. Iqbal, No. 07‐1015 (U.S. Feb. 6, 2008), available at http://1.usa.gov/1CfHJQF). Here, in contrast, the well‐pleaded allegations, as supported by the OIG reports, allege that the DOJ Defendants made, and complied with, the decision to merge the New York List with the national INS List, thereby ensuring that the MDC Plaintiffs, and others, remained in the challenged conditions of confinement despite the absence of any suspicion that they were tied to terrorism.
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1 explanation for the DOJ Defendants’ actions with respect to the New York List

2 merger.38

3

The dissent also argues that we cannot plausibly infer the DOJ Defendants’

4 discriminatory intent from the merger decision because not all of the individuals

5 on the New York List were subjected to the same level of restrictive confinement.

6 See Dissenting Op., post at 79−80. But the fact that some individuals of the same

7 race, ethnicity, religion, and/or national origin as the MDC Plaintiffs were

8 restrained in the Passaic County Jail, as opposed to the ADMAX SHU, hardly

9 dooms the MDC Plaintiffs’ claim against the DOJ Defendants. There is no

10 allegation that the DOJ Defendants were responsible for the assignment of

11 certain actual or perceived Arab and Muslim males to Passaic as opposed to the

12 more restrictive ADMAX SHU. See OIG Report at 17–18, 126–27, 158 (noting that

13 assignment responsibility fell largely to the arresting FBI agent). Rather,

14 Plaintiffs have plausibly alleged that the DOJ Defendants condoned and ratified

15 the New York FBI’s discrimination in identifying detainees by merging the New

38 Furthermore, the fact that Plaintiffs plausibly plead that the DOJ Defendants merged the New York List, and complied with the list merger, based on punitive intent (the substantive due process claim) arguably suggests the plausibility of the MDC Plaintiffs’ allegations that the DOJ Defendants also possessed the discriminatory intent required for an equal protection claim. See supra Section III.B.
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1 York List with the INS List. The DOJ Defendants, apparently deferring to others’

2 designation of detainees for particular facilities, thus ensured that some (and for

3 all they knew, all) of the individuals on the New York List would be subjected to

4 the challenged conditions of confinement solely on the basis of discriminatory

5 criteria. The fact that some of these individuals were actually assigned to the less

6 restrictive Passaic facility is thus a red herring.39

7

Based on the foregoing, we conclude that the MDC Plaintiffs’ allegations

8 are sufficient to state an equal protection claim against Ashcroft, Mueller, and

9 Ziglar for their condonation of the New York FBI’s discriminatory formulation of

10 the New York List, which resulted in the MDC Plaintiffs being subjected to the

11 conditions of confinement challenged here.

39 Moreover, to the extent this differential assignment of class members, again apparently by agents of the New York FBI and not the DOJ Defendants, might be relevant to Plaintiffs’ equal protection claim, because it could suggest that the New York FBI was not actually discriminating, it is more appropriately considered at summary judgment. Indeed, the cases embraced by the dissent conclude that evidence of differential treatment of members of the same class may weaken an inference of discrimination at the summary judgment stage. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 309 (1996) (summary judgment); Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 116 (2d Cir. 2010) (summary order) (summary judgment); James v. N.Y. Racing Ass’n, 233 F.3d 149, 151 (2d Cir. 2000) (summary judgment). In light of the well‐ pleaded allegations regarding discrimination by the New York FBI, Plaintiffs have hardly pleaded themselves out of court on this point.
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1

C. The MDC Defendants

2

We agree with the district court that the MDC Plaintiffs have stated a

3 plausible equal protection claim against Hasty and Sherman, although we base

4 our decision on somewhat different reasoning than that employed by the court

5 below. However, we do not agree with the district court that the MDC Plaintiffs

6 have adequately alleged this claim against Zenk.

7

Our conclusion focuses on allegations of mendacity by Hasty and Sherman

8 regarding the basis for detaining the MDC Plaintiffs in the ADMAX SHU. The

9 Complaint asserts that Hasty and Sherman “were aware that placing the 9/11

10 detainees in the ADMAX SHU unit without an individualized determination of

11 dangerousness or risk was unlawful.” Compl. ¶ 74. However, these Defendants

12 never actually undertook that “required individualized assessment.” Id. ¶ 73.

13 Nevertheless, Hasty and Sherman approved a document that “untruthfully

14 stated that the executive staff at [the] MDC had classified the ‘suspected

15 terrorists’ as ‘High Security’ based on an individualized assessment of their

16 ‘precipitating offense, past terrorist behavior, and inability to adapt to

17 incarceration.’” Id. ¶ 74. In fact, neither Hasty nor Sherman “saw or considered

18 information in any of these categories in deciding to place the 9/11 detainees in

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1 the ADMAX SHU.” Id.; 40 see also id. ¶¶ 68–72 (Hasty and Sherman held the MDC

2 Plaintiffs in the ADMAX SHU knowing that they were not tied to terrorism and

3 without performing the required individualized assessment of whether Plaintiffs

4 posed a danger to the facility).

5

Based on the foregoing allegations of duplicity regarding the basis for

6 confining the 9/11 detainees, it is reasonable to infer that Hasty and Sherman

7 approved this false document to justify detaining actual or perceived Arabs and

8 Muslims in the harsh conditions of the ADMAX SHU based on discriminatory

9 intent. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (in the

10 employment discrimination context, “the trier of fact can reasonably infer from

11 the falsity of the explanation that the employer is dissembling to cover up a

12 discriminatory purpose”); id. (an inference of discriminatory purpose based on

13 an employer’s false explanation “is consistent with the general principle of

14 evidence law that the factfinder is entitled to consider a party’s dishonesty about

15 a material fact as affirmative evidence of guilt” (internal quotation marks

40 As previously noted, the term “9/11 detainees” is defined in the Complaint as non‐ citizens from the Middle East, South Asia, and elsewhere who are Arab or Muslim, or were perceived to be Arab or Muslim. Individuals with certain of these characteristics who were arrested and detained in response to the 9/11 attacks constitute the putative class in this case.
87

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1 omitted)); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (“disbelief of the

2 reasons put forward by the defendant (particularly if disbelief is accompanied by

3 a suspicion of mendacity) may . . . show intentional discrimination” in the

4 employment discrimination context).

5

The dissent argues that we cannot infer discriminatory intent from the

6 MDC Defendants’ approval of this false document, concluding that the “more

7 likely” reason for this mendacity is these Defendants’ concern for national

8 security. See Dissenting Op., post at 83−84. Although recognizing that the MDC

9 Defendants might be faulted for approving a false document stating that each

10 detainee had been assessed as a “High Security” “suspected terrorist[],” our

11 dissenting colleague believes Hasty and Sherman’s actions are more likely

12 explained by reliance on the FBI’s designation of each MDC Plaintiff as a person

13 “of interest” or “of high interest” to the ongoing terrorism investigation. Yet, the

14 allegations in the Complaint belie this alternative explanation for Hasty and

15 Sherman’s dishonesty. Plaintiffs allege that the “MDC Defendants were aware

16 that the FBI had not developed any information” to tie the 9/11 detainees to

17 terrorism. Compl. ¶ 69 (emphasis added). Indeed, the MDC Defendants

18 received regular updates on the FBI’s investigation, including the dearth of

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1 evidence connecting the 9/11 detainees to terrorism. Such briefing—placing

2 Hasty and Sherman on repeated notice of the lack of any specific information

3 justifying restrictive confinement in the ADMAX SHU—renders implausible the

4 innocent explanation for their mendacity.

5

As an additional matter, the fact that the false document that Hasty and

6 Sherman approved, on its face, applied to suspected terrorists and not just actual

7 or perceived Arabs and Muslims does not undermine the reasonableness of the

8 inference that these Defendants acted based on discriminatory intent. Plaintiffs

9 allege that Hasty and Sherman approved the document even though they had

10 not performed the required individualized assessments and knew that keeping

11 “the 9/11 detainees” in the ADMAX SHU without those assessments was

12 unlawful. Id. ¶¶ 73−74. They further allege that, in approving the document,

13 Hasty and Sherman failed to consider the past offenses, past terrorist activity,

14 and inability to adapt to incarceration with respect to “the 9/11 detainees.” Id.

15 ¶ 74. Based on Plaintiffs’ allegations about how the false document related in

16 particular to the 9/11 detainees, a group the Complaint specifically defines on

17 racial, ethnic, and religious grounds, see id. ¶ 1, it is reasonable to infer, at least at

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1 the motion to dismiss stage, that Hasty and Sherman lied in order to conceal an

2 intent to discriminate on the basis of suspect classifications.

3

Further buttressing this inference, the Complaint asserts that MDC staff

4 used racially, ethnically, and religiously charged language to refer to the MDC

5 Plaintiffs. See id. ¶ 109 (MDC staff referred to the MDC Plaintiffs as terrorists and

6 insulted their religion); id. ¶ 110 (Saeed Hammouda and others complained “that

7 MDC staff called them ‘camel[s]’”); id. ¶ 136 (MDC staff mocked Plaintiffs’

8 prayers and interrupted their praying by “screaming derogatory anti‐Muslim

9 comments”); id. ¶ 218 (during his transport and processing Hammouda was

10 called “Arabic asshole”). These allegations are supported by the OIG reports.

11 See OIG Report at 144 (noting allegations that MDC officers used racial slurs);

12 Supplemental OIG Report at 28–30 (concluding that some MDC staff verbally

13 abused detainees based on their Muslim faith, among other grounds).

14

The context in which the term “terrorist” was used at the MDC bolsters the

15 inference that the MDC Plaintiffs were believed to be terrorists simply because

16 they were, or were perceived to be, Arab or Muslim. Significantly, the term

17 “terrorist” was not used in isolation. Rather, MDC staff called the MDC

18 Plaintiffs “‘fucking Muslims’ and ‘terrorists,’” Compl. ¶ 147, as well as

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1 “‘terrorist’ and ‘Arabic asshole,’” id. ¶ 218; see also Supplemental OIG Report at

2 28 (noting that along with the term “terrorists,” MDC staff referred to detainees

3 as “fucking Muslims” and “bin Laden Junior” (internal quotation marks

4 omitted)).

5

While most of the aforementioned comments are not directly attributed to

6 Hasty, Sherman, or Zenk, Plaintiffs do allege that the use of racially, ethnically,

7 and religiously charged language was brought to the attention of the MDC

8 Defendants through detainee complaints and reports from MDC staff, among

9 other means. Mere knowledge of the MDC staff’s discriminatory comments, of

10 course, is insufficient to infer shared discriminatory intent by Hasty, Sherman, or

11 Zenk. See Iqbal, 556 U.S. at 676–77. However, with respect to Hasty, Plaintiffs

12 allege more than mere awareness of the MDC staff’s discriminatory treatment of

13 the MDC Plaintiffs. Plaintiffs claim that Hasty fostered the MDC staff’s use of

14 discriminatory language to refer to the MDC Plaintiffs by himself “referring to

15 the detainees as ‘terrorists,’” Compl. ¶ 77, see also id. ¶ 109, notwithstanding

16 Hasty’s knowledge that the MDC Plaintiffs lacked ties to terrorism. Hasty’s

17 knowledge about the charged manner in which the term “terrorist” was used to

18 refer to the MDC Plaintiffs, and his personal use of the term in that context,

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1 renders even more plausible the conclusion that he approved the false document

2 justifying the MDC Plaintiffs’ detention in the ADMAX SHU based on

3 discriminatory animus. Given the fact that the 9/11 hijackers were Arab

4 Muslims, and Hasty knew that there were no articulable ties between the MDC

5 Plaintiffs and terrorism, Plaintiffs plausibly plead that Hasty referred to the MDC

6 Plaintiffs as terrorists, and treated them as if they were, simply because they

7 were, or he believed them to be, Arab or Muslim.

8

In view of the foregoing, the MDC Plaintiffs have stated a plausible claim

9 that Hasty and Sherman detained them in the challenged conditions because of

10 their race, ethnicity, religion, and/or national origin. These Defendants’ approval

11 of the false document, and Hasty’s use of charged language in the particular

12 context of the MDC Plaintiffs’ detention, support the reasonable inference that

13 Hasty and Sherman subjected the MDC Plaintiffs to harsh conditions of

14 confinement based on suspect classifications.

15

With respect to Zenk, the MDC Plaintiffs’ allegations are more limited and

16 fail to support the reasonable inference that he established or implemented the

17 alleged conditions of confinement based on animus that offends notions of equal

18 protection.

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1

D. Qualified Immunity

2

The DOJ Defendants, Hasty, and Sherman are not entitled to qualified

3 immunity on the MDC Plaintiffs’ equal protection claim. With regard to the first

4 prong of this inquiry, whether the complaint plausibly pleads that a defendant

5 personally violated the plaintiff’s constitutional rights, for the reasons stated

6 above, the MDC Plaintiffs have plausibly alleged that Ashcroft, Mueller, Ziglar,

7 Hasty, and Sherman violated their rights under the equal protection guarantee.

8

With respect to the second prong of the inquiry, it was clearly established at

9 the time of Plaintiffs’ detention that it was illegal to hold individuals in harsh

10 conditions of confinement and otherwise target them for mistreatment because of

11 their race, ethnicity, religion, and/or national origin. Plaintiffs’ right “not to be

12 subjected to ethnic or religious discrimination[] w[as] . . . clearly established prior

13 to 9/11, and . . . remained clearly established even in the aftermath of that horrific

14 event.” Hasty, 490 F.3d at 160. In Hasty, the plaintiff alleged “that he was

15 deemed to be ‘of high interest,’ and accordingly was kept in the ADMAX SHU

16 under harsh conditions, solely because of his race, ethnicity, and religion,” and

17 “that Defendants specifically targeted [him] for mistreatment because of [his]

18 race, religion, and national origin.” Id. at 174 (alterations in original). We

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1 concluded “that any reasonably competent officer would understand [those

2 alleged actions] to have been illegal under prior case law.” Id. (internal quotation

3 marks omitted). There is no reason that this analysis should not govern here.

4 Although, as the dissent notes, see Dissenting Op., post at 62, Hasty employed a

5 more lenient pleading standard than what we now utilize in assessing factual

6 allegations, this hardly prevents us from relying on its conclusions as to whether

7 certain legal principles were clearly established at the time of Plaintiffs’

8 detention. Accordingly, in view of the sufficiency of the MDC Plaintiffs’

9 allegations here, the DOJ Defendants, Hasty, and Sherman are not entitled to

10 qualified immunity on this claim.

11

We reverse the portion of the district court’s decision that dismissed the

12 MDC Plaintiffs’ equal protection claim against the DOJ Defendants, affirm the

13 district court’s denial of Hasty and Sherman’s motions to dismiss the MDC

14 Plaintiffs’ claim, and reverse the district court’s decision denying Zenk’s motion

15 to dismiss the equal protection claim.

16

Because the Passaic Plaintiffs were held in the general population and not

17 the ADMAX SHU, we agree with the district court that they have failed to

18 adequately plead that they were subjected to harsh conditions of confinement

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1 because of their race, ethnicity, religion, and/or national origin. Thus, we affirm

2 the district court’s dismissal of the Passaic Plaintiffs’ equal protection claim.

3 V. Claim 6: Unreasonable and Punitive Strip Searches

4

The MDC Plaintiffs claim that they were subject to unreasonable and

5 punitive strip searches while detained at the MDC, in violation of the Fourth and

6 Fifth Amendments.41

7

A. Applicable Legal Standard

8

Determining the legal standard that applies to this claim turns on whether

9 the MDC Plaintiffs were held in a prison or a jail. See Hasty, 490 F.3d at 172. In

10 Hasty, we decided that the plaintiff, who was detained in the ADMAX SHU at

11 the MDC (like the MDC Plaintiffs here), should be treated in accordance with the

12 standard governing prisons. See id. Under that standard, a “regulation is valid if

13 it is reasonably related to legitimate penological interests.” Turner v. Safley, 482

41 Only the MDC Plaintiffs assert this claim, which is only raised against the MDC Defendants. Benatta and Hammouda alone assert this claim against Zenk. To the extent that the MDC Plaintiffs’ allegations regarding the strip searches are cognizable under the Fifth Amendment, we factor these allegations into our analysis of the substantive due process claim, which is discussed above. See supra Section III.C.
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1 U.S. 78, 89 (1987). Given that the parties here do not argue for a different

2 standard, we assume that the foregoing standard applies in this case.42

3

B. The MDC Defendants

4

The MDC Plaintiffs allege that Defendant Joseph Cuciti, a former lieutenant

5 at the MDC and not a party on appeal, was tasked with “developing the strip‐

6 search policy on the ADMAX [SHU].” Compl. ¶ 111. Plaintiffs further claim that

7 “Hasty ordered . . . Cuciti to design extremely restrictive conditions of

8 confinement.” Id. ¶ 75. The reasonable inference based on these allegations is

9 that Hasty ordered Cuciti to develop the strip‐search policy, which was “then

10 approved and implemented by Hasty and Sherman, and, later, by Zenk.” Id.

11

Plaintiffs allege that the 9/11 detainees at the MDC were strip searched

12 upon arrival, and again after they had been escorted in shackles and under

13 continuous guard to the ADMAX SHU. They were also strip searched every

14 time they were taken from or returned to their cells, including after non‐contact

42 We note, however, that this standard governs prison regulations, see Turner, 482 U.S. at 89, and that the application of this standard in Hasty may have been justified because the plaintiff in that case faced criminal charges (apparently felonies), see 490 F.3d at 147– 48 & n.1, 162 n.8, 172. In contrast, Plaintiffs here were almost exclusively charged with civil immigration violations and were detained on that basis. While it may be that a different standard, one more favorable to detainees, should govern the constitutionality of searches in the context of civil immigration detention, we leave that question for another day.

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1 attorney visits, when “physical contact between parties was prevented by a clear

2 partition,” OIG Report at 123, and when being transferred from one cell to

3 another. Benatta was strip searched on September 23, 24, and 26 of 2001, even

4 though he was not let out of his cell on any of those days. Numerous strip

5 searches were documented in a “visual search log” that was created for review

6 by MDC management, including Hasty. Compl. ¶ 114 (internal quotation marks

7 omitted).

8

Plaintiffs’ allegations regarding the strip searches are supported by the

9 Supplemental OIG Report, which concluded that MDC staff “inappropriately

10 used strip searches to intimidate and punish detainees.” Supplemental OIG

11 Report at 35. That report also “questioned the need for the number of strip

12 searches, such as after attorney and social visits in non‐contact rooms.” Id.

13

The foregoing allegations, supported as they are by the Supplemental OIG

14 Report, are sufficient to establish at this stage of the litigation that Hasty and

15 Sherman were personally involved in creating and executing a strip‐search

16 policy that was not reasonably related to legitimate penological interests. Hasty

17 ordered the policy, and both he and Sherman approved and implemented it.

18 Under that policy, the MDC Plaintiffs were strip searched when there was no

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1 possibility that they could have obtained contraband. Plaintiffs have alleged that 2 Hasty and Sherman were aware of these searches either based on the search log 3 that was created for review by MDC management, or because they were 4 involved in the implementation of the strip‐search policy.43 These allegations 5 give rise to a plausible Fourth Amendment claim against Hasty and Sherman. 6 See Hasty, 490 F.3d at 172 (finding a plausible allegation of a Fourth Amendment 7 violation in the post‐9/11 context where the plaintiff alleged that he “was 8 routinely strip searched twice after returning from the medical clinic or court and 9 that, on one occasion, [he] was subjected to three serial strip and body‐cavity 10 searches in the same room”); Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir. 1983) 11 (noting that because “there was no possibility that [the plaintiff] could have 12 obtained and concealed contraband[] . . . the second search appears to have been 13 unnecessary”).44
43 To the extent the dissent believes that we premise Hasty and Sherman’s personal involvement entirely on these Defendants’ alleged review of the visual search log, see Dissenting Op., post at 90, that assertion is incorrect. As discussed, Plaintiffs have plausibly alleged that Hasty ordered the development of, and that he and Sherman approved and implemented, the challenged strip‐search policy. Plaintiffs’ allegations regarding the visual search log only buttress the inference of Hasty’s personal involvement. 44 Although the dissent correctly notes that Hodges was decided before the Supreme Court’s opinion in Turner, see Dissenting Op., post at 88, we have ratified Hodges in subsequent strip search case law. See Hasty, 490 F.3d at 172; N.G. v. Connecticut, 382 F.3d
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1

With respect to Zenk, however, the MDC Plaintiffs fail to state a plausible

2 Fourth Amendment claim. As noted earlier, Plaintiffs do not assert any claim

3 against Zenk for injuries they suffered prior to the date on which he became

4 Warden of the MDC, which was April 22, 2002. Only two Plaintiffs, Benatta and

5 Hammouda, were still detained at the MDC as of that date. These Plaintiffs have

6 not sufficiently alleged that they were unlawfully strip searched during the

7 period in which Zenk was Warden of the MDC.

8

C. Qualified Immunity

9

Hasty and Sherman are not entitled to qualified immunity on the MDC

10 Plaintiffs’ strip search claim. With respect to the first prong of the qualified

11 immunity analysis, Plaintiffs have plausibly alleged that Hasty and Sherman

12 each violated the MDC Plaintiffs’ rights under the Fourth Amendment. With

13 regard to the second prong of the inquiry, Plaintiffs’ Fourth Amendment rights

14 were clearly established at the time of the searches at issue.
225, 233−34 (2d Cir. 2004). Similarly, we reject the dissent’s attempt to confine Hodges to its facts, only finding the absence of a legitimate penological purpose where the strip searches are “immediately successive.” Dissenting Op., post at 88 (emphasis added). Like previous panels, we read Hodges as holding that a search may be unnecessary and purposeless where “there was no possibility that [the plaintiff] could have obtained and concealed contraband.” 712 F.2d at 35; see also N.G., 382 F.3d at 233−34. Here, consistent with Hodges, Plaintiffs have plausibly alleged that they were strip searched when there was no opportunity to acquire contraband, including in instances where they were shackled and under escort, or were never permitted to leave their cells.

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1

In Hasty, we denied Hasty qualified immunity on the plaintiff’s Fourth

2 Amendment claim, stating that in the wake of 9/11 “it was clearly established

3 that even the standard most favorable to prison officials required that strip and

4 body‐cavity searches be rationally related to legitimate government purposes.”

5 490 F.3d at 172; see also id. at 159–60 (the “right not to be needlessly harassed and

6 mistreated in the confines of a prison cell by repeated strip and body‐cavity

7 searches” was “clearly established prior to 9/11, and . . . remained clearly

8 established even in the aftermath of that horrific event”). Because the MDC

9 Plaintiffs’ claim here is substantially the same as the Fourth Amendment claim at

10 issue in Hasty, we are bound by that decision and thus deny Hasty and Sherman

11 qualified immunity on the Fourth Amendment claim in this case.

12

Accordingly, we affirm the district court’s denial of Hasty and Sherman’s

13 motions to dismiss the MDC Plaintiffs’ Fourth Amendment strip search claim,

14 and reverse the district court’s denial of Zenk’s motion to dismiss this claim.

15 VI. Claim 7: Conspiracy Under 42 U.S.C. § 1985

16

Plaintiffs’ final claim is that Defendants conspired to deprive them of their

17 rights in violation of 42 U.S.C. § 1985(3).

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1

A. Applicable Legal Standard

2

A conspiracy claim under Section 1985(3) has four elements: “(1) a

3 conspiracy, (2) for the purpose of depriving any person or class of persons of the

4 equal protection of the laws or of equal privileges and immunities under the

5 laws, (3) an act in furtherance of the conspiracy, and (4) whereby a person is

6 injured in his person or property or deprived of a right or privilege of a citizen.”

7 Hasty, 490 F.3d at 176.45 In addition, this claim requires that “there must be some

8 racial, or perhaps otherwise class‐based, invidiously discriminatory animus

9 behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971);

10 accord Reynolds v. Barrett, 685 F.3d 193, 201–02 (2d Cir. 2012).

11

B. The Sufficiency of the Allegations

12

In this case, the MDC Plaintiffs have sufficiently alleged that Ashcroft,

13 Mueller, and Ziglar met regularly and eventually agreed to subject the detainees

14 to the challenged conditions of confinement by merging, and complying with the

45 Section 1985(3) of Title 42 of the United States Code provides, in pertinent part, that: If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

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1 merger of, the New York List. The MDC Plaintiffs have also plausibly alleged

2 that the DOJ Defendants’ actions with respect to the New York List merger were

3 based on the discriminatory animus required for a Section 1985(3) conspiracy

4 claim, as we conclude above in our analysis of the equal protection claim. With

5 respect to Hasty and Sherman, their joint approval of the false document without

6 performing the requisite individualized assessment supports the reasonable

7 inference that these two Defendants came to an agreement to and did subject

8 Plaintiffs to harsh conditions of confinement based on the discriminatory animus

9 required by Section 1985(3).

10

Plaintiffs also allege an agreement, albeit not an explicit one, among the

11 DOJ Defendants and Hasty and Sherman to effectuate the harsh conditions of

12 confinement with discriminatory intent. Such a tacit agreement can suffice

13 under Section 1985(3). See Webb v. Goord, 340 F.3d 105, 110–11 (2d Cir. 2003). The

14 Complaint asserts that the conditions of confinement at the MDC “were

15 formulated in consultation with the FBI.” Compl. ¶ 65. In addition, Hasty

16 ordered, and Hasty and Sherman approved and implemented, the conditions of

17 confinement “[t]o carry out Ashcroft, Mueller[,] and Ziglar’s unwritten policy to

18 subject the 9/11 detainees to harsh treatment.” Id. ¶ 75; see also id. ¶ 68. The

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1 foregoing allegations are sufficient to support the reasonable inference that the

2 DOJ Defendants, Hasty, and Sherman shared such a tacit understanding about

3 carrying out the unlawful conduct with respect to the MDC Plaintiffs’ detention.

4

Accordingly, the MDC Plaintiffs’ allegations state a plausible claim for a

5 Section 1985(3) conspiracy against Ashcroft, Mueller, Ziglar, Hasty, and

6 Sherman.

7

C. The Intracorporate Conspiracy Doctrine

8

The MDC Defendants argue that they are legally incapable of conspiring

9 with each other, and with the DOJ Defendants, because they are all part of the

10 same governmental entity—the DOJ. In Girard v. 94th Street & Fifth Avenue Corp.,

11 530 F.2d 66, 70–72 (2d Cir. 1976), we recognized that the defendants—officers

12 and directors of a single corporation, and the corporation itself—could not

13 legally conspire with one another in violation of Section 1985(3). We reached

14 that conclusion because the defendants formed a “single business entity with a

15 managerial policy implemented by the one governing board.” Id. at 71. Thus,

16 the defendants could not satisfy the statutory requirement of a conspiracy

17 between two or more persons. Id. We also noted, however, that where various

18 entities in a single institution have “disparate responsibilities and functions,” a

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1 conspiracy claim could lie because the actions of those entities would not be

2 “actions of only one policymaking body.” Id.

3

Assuming that Defendants can ultimately invoke the intracorporate

4 conspiracy doctrine in this case, at this stage of the litigation, we cannot conclude

5 that Ashcroft, Mueller, Ziglar, Hasty, and Sherman acted as members of a single

6 policymaking entity for purposes of the MDC Plaintiffs’ Section 1985(3)

7 conspiracy claim. According to the Complaint, the former Attorney General, the

8 former Director of the FBI, the former Commissioner of the INS, and the former

9 Warden and Associate Warden at the MDC had varied responsibilities and

10 functions that distinguish them from the single corporate entity in Girard.

11 Although Hasty and Sherman may have acted, at least in part, to implement the

12 DOJ Defendants’ policy, it is also the case that Hasty and Sherman themselves

13 established policies at the MDC. Thus, factual questions about how disparate or

14 distinct Defendants’ functions were, and how policy was created by the various

15 Defendants, preclude us from deciding as a matter of law that Defendants

16 resemble the single policymaking body of a corporation.46

46 We note that the BOP and, therefore, the MDC, are subject to the supervision of the Attorney General. See 18 U.S.C. § 4041. We have also found one unpublished district court decision that concludes that the Attorney General and employees of a BOP facility
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1

D. Qualified Immunity

2

The DOJ Defendants, Hasty, and Sherman are not entitled to qualified

3 immunity on this claim. First, the MDC Plaintiffs have plausibly alleged a

4 Section 1985(3) conspiracy claim against these Defendants. In addition, as we

5 concluded in Hasty, in the wake of the 9/11 attacks, “even without a definitive

6 ruling from this Court on the application of section 1985(3) to federal officials,

7 federal officials could not reasonably have believed that it was legally

8 permissible for them to conspire with other federal officials to deprive a person

9 of equal protection of the laws.” 490 F.3d at 177. In that case, we denied the

10 defendants qualified immunity on the Section 1985(3) claim. See id. Given the

11 sufficiency of the allegations in this case, our qualified immunity decision in

12 Hasty controls here.

13

Accordingly, we reverse the district court’s dismissal of the Section 1985(3)

14 claim against the DOJ Defendants and affirm the denial of Hasty and Sherman’s

15 motions to dismiss this claim. Because the MDC Plaintiffs fail to adequately

cannot conspire together under Section 1985. See Chesser v. Walton, No. 12‐cv‐01198‐ JPG, 2013 WL 1962285, at *3 (S.D. Ill. May 10, 2013). However, for the reasons stated above, neither this statutory provision nor district court case satisfy us that Defendants here were sufficiently similar to the members of a single corporate policymaking body such that the intracorporate conspiracy doctrine should apply.
105

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1 plead that Zenk acted with discriminatory animus, we reverse the denial of

2 Zenk’s motion to dismiss the conspiracy claim. This claim is also dismissed with

3 respect to the Passaic Plaintiffs, as they fail to adequately plead that Defendants

4 acted with the requisite discriminatory animus.

5 VII. Final Thoughts

6

If there is one guiding principle to our nation it is the rule of law. It

7 protects the unpopular view, it restrains fear‐based responses in times of trouble,

8 and it sanctifies individual liberty regardless of wealth, faith, or color. The

9 Constitution defines the limits of the Defendants’ authority; detaining

10 individuals as if they were terrorists, in the most restrictive conditions of

11 confinement available, simply because these individuals were, or appeared to be,

12 Arab or Muslim exceeds those limits. It might well be that national security

13 concerns motivated the Defendants to take action, but that is of little solace to

14 those who felt the brunt of that decision. The suffering endured by those who

15 were imprisoned merely because they were caught up in the hysteria of the days

16 immediately following 9/11 is not without a remedy.

17

Holding individuals in solitary confinement twenty‐three hours a day with

18 regular strip searches because their perceived faith or race placed them in the

106

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1 group targeted for recruitment by al Qaeda violated the detainees’ constitutional

2 rights. To use such a broad and general basis for such severe confinement

3 without any further particularization of a reason to suspect an individual’s

4 connection to terrorist activities requires certain assumptions about the “targeted

5 group” not offered by Defendants nor supported in the record. It assumes that

6 members of the group were already allied with or would be easily converted to

7 the terrorist cause, until proven otherwise. Why else would no further

8 particularization of a connection to terrorism be required? Perceived

9 membership in the “targeted group” was seemingly enough to justify extended

10 confinement in the most restrictive conditions available.

11

Discovery may show that the Defendants—the DOJ Defendants, in

12 particular—are not personally responsible for detaining Plaintiffs in these

13 conditions. But we simply cannot conclude at this stage that concern for the

14 safety of our nation justified the violation of the constitutional rights on which

15 this nation was built. The question at this stage of the litigation is whether the

16 MDC Plaintiffs have plausibly pleaded that the Defendants exceeded the bounds

17 of the Constitution in the wake of 9/11. We believe that they have.

107

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1

CONCLUSION

2

For the foregoing reasons, we affirm in part and reverse in part the district

3 court’s decision on Defendants Rule 12(b)(6) motions. More specifically, we

4 conclude that: (1) the MDC Plaintiffs have plausibly alleged a substantive due

5 process claim against the DOJ Defendants, against Hasty with regard to both

6 official and unofficial conditions, and against Sherman with regard to official

7 conditions only, and these Defendants are not entitled to qualified immunity on

8 this claim; (2) the MDC Plaintiffs have plausibly alleged an equal protection

9 claim against the DOJ Defendants, Hasty, and Sherman, and these Defendants

10 are not entitled to qualified immunity on this claim; (3) the free exercise claim is

11 dismissed as to all Defendants; (4) the MDC Plaintiffs have plausibly alleged

12 their Fourth Amendment strip search claim against Hasty and Sherman, and

13 these Defendants are not entitled to qualified immunity on this claim; (5) the

14 MDC Plaintiffs have plausibly alleged the Section 1985(3) conspiracy claim

15 against the DOJ Defendants, Hasty, and Sherman, and these Defendants are not

16 entitled to qualified immunity on this claim; and (6) the MDC Plaintiffs have not

17 plausibly alleged any claims against Zenk. We affirm the dismissal of the claims

18 brought by the Passaic Plaintiffs.

108

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1

The Clerk of the Court is directed to enter an order consistent with these

2 conclusions, AFFIRMING in part and REVERSING in part, and REMANDING

3 the matter to the district court for further proceedings consistent with this

4 opinion.

109

Case 13-981, Document 266-2, 06/17/2015, 1534154, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: June 17, 2015 Docket #: 13-981cv Short Title: Turkmen v. Ashcroft

DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-0237 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Judge: Gold DC Judge: Gleeson

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 13-981, Document 266-3, 06/17/2015, 1534154, Page1 of 2

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: June 17, 2015 Docket #: 13-981cv Short Title: Turkmen v. Ashcroft

DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-0237 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Docket #: 02-cv-2307 DC Court: EDNY (BROOKLYN) DC Judge: Gold DC Judge: Gleeson

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

Case 13-981, Document 266-3, 06/17/2015, 1534154, Page2 of 2

(VERIFICATION HERE)

________________________ Signature

 </s> REENA RAGGI, Circuit Judge, concurring in part in judgment and dissenting in part:
Today, our court becomes the first to hold that a Bivens action can be maintained against the nation’s two highest ranking law enforcement officials—the Attorney General of the United States and the Director of the Federal Bureau of Investigation (“FBI”)—for policies propounded to safeguard the nation in the immediate aftermath of the infamous al Qaeda terrorist attacks of September 11, 2001 (“9/11").1 I respectfully dissent from this extension of Bivens to a context not previously recognized by Supreme Court or Second Circuit precedent. I do not suggest that executive action in this, or any other, context is not subject to constitutional constraints. I conclude only that when, as here, claims challenge official executive policy (rather than errant conduct by a rogue official—the typical Bivens scenario), and particularly a national security policy pertaining to the detention of illegal aliens in the aftermath of terrorist attacks by aliens operating within this country, Congress, not the judiciary, is the appropriate branch to decide whether the detained aliens should be allowed to sue executive policymakers in
1 To date, four Courts of Appeals—for the Fourth, Seventh, Ninth, and D.C. Circuits—have declined to extend Bivens to suits against executive branch officials for national security actions taken after the 9/11 attacks. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc); Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012); see also Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011); Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009).

their individual capacities for money damages. Even if a Bivens action were properly recognized in this context—which I
submit it is not—I would still dissent insofar as the majority denies qualified immunity to five former federal officials, Attorney General John Ashcroft, FBI Director Robert Mueller, Immigration and Naturalization Service (“INS”) Commissioner James Ziglar (“DOJ Defendants”), Metropolitan Detention Center (“MDC”) Warden Dennis Hasty, and Associate Warden James Sherman (“MDC Defendants”), on plaintiffs’ policy-challenging claims of punitive and discriminatory confinement and unreasonable strip searches. The majority does narrow these claims by allowing their pursuit only (1) by those aliens confined in the MDC’s most restrictive housing unit, the “ADMAX SHU” (“MDC Plaintiffs”); and (2) for restrictive confinement after defendants purportedly learned that plaintiffs were being detained without individualized suspicion of their connection to terrorism. See Majority Op., ante at 41–42, 77. Even with the claims so narrowed, however, I think defendants are entitled to qualified immunity because plaintiffs fail to plead plausible policy-challenging claims that were clearly established at law in the period September 2001 to April 2002, when one or more MDC Plaintiffs were confined in the ADMAX SHU. As the majority acknowledges, the 9/11 attacks killed 3,000
2

people and presented “unrivaled challenges and severe exigencies” for the security
of the nation. Majority Op., ante at 31. The law did not then clearly alert federal
authorities responding to these challenges that they could not hold lawfully arrested
illegal aliens—identified in the course of the 9/11 investigation and among the group
targeted for recruitment by al Qaeda—in restrictive (as opposed to general)
confinement pending FBI-CIA clearance of any ties to terrorism unless there was
prior individualized suspicion of a terrorist connection. Indeed, I am not sure that
conclusion is clearly established even now.
Accordingly, because I conclude both that a Bivens remedy should not be
extended to plaintiffs’ policy-challenging claims and that the DOJ and MDC
defendants are entitled, in any event, to qualified immunity, I dissent from the majority’s refusal to dismiss these claims.2
2 In concluding its opinion, the majority asserts that plaintiffs’ claims cannot be dismissed because “[i]f there is one guiding principle to our nation it is the rule of law.” Majority Op., ante at 106. The rule of law, however, is embodied not only in amendments to the Constitution, but also, and first, in that document’s foundational structure of separated powers. See 1 Annals of Cong. 581 (1789) (reporting Madison’s statement in first Congress that “if there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the Legislative, Executive, and Judicial powers”); see also Mass. Const. of 1780, Part the First, art. XXX (John Adams) (separating powers “to the end it may be a government of laws, and not of men”); Bowsher v. Synar, 478 U.S. 714, 721–22 (1986) (observing that “declared purpose of separating . . . powers of government, of
3

I. Bivens Should Not Be Extended to Plaintiffs’ Policy-Challenging Claims
A. The Narrow Scope of Bivens Actions
On three occasions in the decade between 1971 and 1980, the Supreme Court
implied directly from the Constitution private damages actions against federal
officials for alleged violations of rights. See Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (implying action for unlawful
course, was to ‘diffus[e] power the better to secure liberty,’” (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring))). Thus, it is the rule of law that demands that a court do more than identify a possible wrong; it must consider what authority the judiciary has to imply a remedy—specifically, a damages remedy—in the absence of legislative action. See The Federalist No. 47, at 251–52 (James Madison) (Carey & McClellan, ed. 2001) (quoting Montesquieu’s maxim that “were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator”); INS v. Chadha, 462 U.S. 919, 951 (1983) (stating that “hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted”); J. Harvie Wilkinson III, Our Structural Constitution, 104 Colum. L. Rev. 1687, 1707 (2004) (observing that “threshold question” for judge is not, “How should I resolve this case?” but “To whom does the Constitution entrust the resolution of this issue?”).
It is also the rule of law—to which both sides in a lawsuit have a right—that requires a court to consider whether certain defenses, such as qualified immunity, shield a particular defendant in any event from a suit for damages. See, e.g., Pearson v. Callahan, 555 U.S. 223, 231–32 (2009) (reiterating that qualified immunity should be decided at earliest possible stage of litigation because it is immunity from suit, not just liability).
Thus, the rule of law animates this dissent no less than the majority opinion.
4

arrest and excessive force in arrest from Fourth Amendment prohibition of unreasonable searches and seizures); accord Carlson v. Green, 446 U.S. 14 (1980) (implying action for deliberate indifference to prisoner’s medical needs from Eighth Amendment prohibition of cruel and unusual punishment); Davis v. Passman, 442 U.S. 228 (1979) (implying action for sex discrimination in federal employment from equal protection component of Fifth Amendment). The Court has never done so again. Instead, it has “consistently refused to extend Bivens liability to any new context or new category of defendants,” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001), emphasizing that “implied causes of actions are disfavored,” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009), and “in most instances . . . unjustified,” Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
This reluctance to extend Bivens is grounded in our constitutional structure of separated powers. As the Supreme Court has explained, deciding whether to extend Bivens focuses not on “the merits of the particular remedy” sought, but on “who should decide whether such a remedy should be provided,” specifically, the legislative branch of government, Congress, or the adjudicative branch, the judiciary. Bush v. Lucas, 462 U.S. 367, 380 (1983). For more than thirty years now, the Supreme Court has invariably answered that question in favor of Congress. See,
5

e.g., Wilkie v. Robbins, 551 U.S. at 562 (“‘Congress is in a far better position than a court to evaluate the impact of a new species of litigation’ against those who act in the public’s behalf.” (quoting Bush v. Lucas, 462 U.S. at 389)).
Heeding this precedent, our own court, en banc, has stated “that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts.” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (internal quotation marks omitted). Most particularly, it should not be applied in a new context if any alternative process is available to address the claimed constitutional interest or if “special factors” counsel hesitation in recognizing a new damages action. Bush v. Lucas, 462 U.S. at 378; accord Minneci v. Pollard, 132 S. Ct. 617, 621 (2012); Wilkie v. Robbins, 551 U.S. at 550; Arar v. Ashcroft, 585 F.3d at 572 (collecting cases). In short, a Bivens remedy is never “an automatic entitlement”; it “has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie v. Robbins, 551 U.S. at 550.
Applying these principles here, I conclude that plaintiffs’ constitutional challenges to an alleged executive policy for confining lawfully arrested illegal aliens in the aftermath of the 9/11 attacks cannot pass the stringent test for recognizing a Bivens action. In holding otherwise, the panel majority maintains that plaintiffs’
6

challenges to the conditions of their confinement—with the exception of their Free
Exercise challenge—“stand[] firmly within a familiar Bivens context,” thus avoiding
the need to consider factors counseling hesitation or alternative remedies. Majority Op., ante at 31–32, 35–36.3 The majority can reach that conclusion, however, only by
fashioning a new standard for construing the few recognized Bivens contexts that
employs an impermissibly “high level of generality.” Wilkie v. Robbins, 551 U.S. at
561 (cautioning against such construction); accord Arar v. Ashcroft, 585 F.3d at 572. I respectfully disagree with that analysis.4
3 I concur in the panel judgment dismissing plaintiffs’ Free Exercise challenge. See Majority Op., ante at 35–36. Not only has the Supreme Court consistently declined to extend a Bivens remedy to a First Amendment claim in any context, see, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009), but also Congress has provided alternative relief under the Religious Freedom Restoration Act, see 42 U.S.C. § 2000bb et seq. 4 I dissent from the majority’s allowance of Bivens claims against both the DOJ and the MDC Defendants even though the former group, having secured dismissal on other grounds in the district court, did not renew their Bivens challenge in defending that judgment on appeal. No matter. We can affirm on any ground supported by the record, see Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014), and the lists-merger theory on which the majority reverses dismissal was never advanced by plaintiffs’ in either the district court or on appeal, see infra at 43 n.28.
7

B. Plaintiffs’ Claims Do Not Arise in an Established Bivens Context 1. The Arar v. Ashcroft Standard for Identifying Bivens Context Is Holistic and Cannot Be Reduced to Two Factors
In deciding whether a claim arises in a previously recognized Bivens context, this panel is bound by our court’s en banc decision in Arar v. Ashcroft, which defines “context” as “a potentially recurring scenario that has similar legal and factual components.” 585 F.3d at 572. The majority pays lip service to this definition, see Majority Op., ante at 29, but then significantly narrows it to demand commonality only as to the “rights injured” and the “mechanism of injury,” id. at 32. This substitution cannot be reconciled with controlling precedent. Arar’s definition of context is unqualified, contemplating a careful, holistic examination of all legal and factual components of the “scenario” in which a claim arises to see if it is, indeed, a recurrent example of a previously recognized Bivens context. Arar v. Ashcroft, 585 F.3d at 572. Such an inquiry does not denominate any particular factors—such as the “rights injured” or “mechanism of injury”—as determinative. Nor does it pronounce other factors—such as a challenge to an executive policy, implicating the exercise of national security and immigration authority in a time of
8

crisis—irrelevant.5 By doing both here, the majority not only fails to conduct the full inquiry mandated by Arar’s definition of context. It also fails to heed the Supreme Court admonition that animates the Arar definition, i.e., that a Bivens remedy—generally “disfavored,” Ashcroft v. Iqbal, 556 U.S. at 675, and usually “unjustified,” Wilkie v. Robbins, 551 U.S. at 550—is never “an automatic entitlement” but, rather, the product of a considered “judgment about the best way to implement a constitutional guarantee” in particular circumstances, id. Such a judgment necessarily requires more than the general identification of a constitutional right or a mechanism of injury. It demands consideration of all factors counseling for and against an implied damages action in the specific legal and factual circumstances presented.
It is precisely because a Bivens judgment is made only after weighing all factors relevant to a given scenario that, when another case arises presenting similar legal and factual components, a court need not repeat the process. But where a
5 In pronouncing the national security challenges following the 9/11 attacks irrelevant to a Bivens context determination, the majority cites Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), rev’d in part sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Majority Op., ante at 31. That reliance is misplaced because it conflates the question of clearly established rights—the qualified immunity concern at issue in Iqbal v. Hasty, 490 F.3d at 159—with the distinct Bivens question of previously established context.
9

proposed Bivens claim presents legal and factual circumstances that were not present in an earlier Bivens case, a new assessment is necessary because no court has yet made the requisite “judgment” that a judicially implied damages remedy is “the best way” to implement constitutional guarantees in that context. Wilkie v. Robbins, 551 U.S. at 550.
That is the concern here. No court has ever made the judgment that an implied damages remedy is the best way to implement constitutional guarantees of substantive due process, equal protection, and reasonable search when lawfully arrested illegal aliens challenge an executive confinement policy, purportedly made at the cabinet level in a time of crisis, and implicating national security and immigration authority. In the absence of a judgment made in that context, the majority cannot conclude that a Bivens remedy is available to these plaintiffs simply because they assert rights and mechanisms of injury present in some other Bivens cases. Indeed, because rights and mechanisms of injury can arise in a variety of circumstances, presenting different legal and factual components, these two factors cannot alone identify context except at an impermissibly high level of generality. See Wilkie v. Robbins, 551 U.S. at 561; Arar v. Ashcroft, 585 F.3d at 572.
This generality concern is only exacerbated by the majority’s apparent
10

willingness to mix and match a “right” from one Bivens case with a “mechanism of injury” from another and to conclude that wherever such a right and such a mechanism of injury are paired together, the resulting Bivens claim arises in an established context. See Majority Op., ante at 31–35; 37. The problem is that no court has previously made the requisite judgment with respect to that pairing, much less made it in a legal and factual scenario similar to the one presented here.
2. The Majority Cites No Case Affording a Bivens Remedy in a Scenario Legally and Factually Similar to that Presented Here a. Punitive Confinement Claim
The majority cites two cases, Carlson v. Green, 446 U.S. 14, and Thomas v. Ashcroft, 470 F.3d 491 (2d Cir. 2006), in which federal prisoners were allowed to maintain Bivens actions for injuries sustained in confinement. See Majority Op., ante at 32–33. But in each case, the claim asserted was deliberate indifference to the prisoner’s particular medical needs. That scenario is neither legally nor factually similar to a substantive due process claim of punitive pre-trial confinement implied from allegedly purposeless restrictions. See generally Bell v. Wolfish, 441 U.S. 520 (1970).6 Indeed, the difference in context is only highlighted by law affording prison
6 When, in Bell v. Wolfish, the Supreme Court discussed the substantive due process prohibition on punitive pre-trial confinement, it did so on a petition for a writ of
11

authorities considerable discretion in establishing confinement policies. See generally Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1517 (2012).
Deliberate indifference to an individual inmate’s particular health needs was also the basis for the constitutional claim in Correctional Services Corp. v. Malesko, 534 U.S. 61. In that case, however, the Supreme Court declined to extend a Bivens remedy to such a claim when brought against a private corporation operating detention facilities under a contract with the Bureau of Prisons (“BOP”). See id. at 74. Thus, the Malesko observation cited by the majority—that “[i]f a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officers, subject to the defense of qualified immunity,” Majority Op., ante at 33 (quoting Malesko, 534 U.S. at 72)—cannot be read apart from the context in which it was made. It would, in fact, be extraordinary to conclude that in a deliberate indifference case such as Malesko, in which all claims against individuals had been dismissed, and in which the Supreme Court declined to extend Bivens to the private corporate defendant, the Court was, nevertheless, using a single sentence of dictum to sweep well beyond Carlson and to hold that Bivens remedies are available to federal prisoners raising any constitutional
habeas corpus, not in a Bivens action. See 441 U.S. at 526, 528. 12

challenge to any aspect of their confinement against individual federal employees. Indeed, that reading is foreclosed in this circuit by Arar, which observed that Carlson extended Bivens to Eighth Amendment violations by prison officials, after which “the Supreme Court has declined to extend the Bivens remedy in any new direction at all.” Arar v. Ashcroft, 585 F.3d at 571 (emphasis added).
In Tellier v. Fields, also cited by the majority, ante at 34, a prison inmate did seek a Bivens remedy for restrictive confinement, but the right he asserted was procedural not substantive due process. See 280 F.3d 69, 73 (2d Cir. 2001). In short, he complained that defendants had failed to follow controlling procedures for imposing prison discipline. He did not contend that the restrictive conditions themselves were substantively unreasonable, a claim with quite different legal and factual components.7
In sum, the panel majority points to no case in which the Supreme Court or this court has yet extended a Bivens remedy to claims of punitive confinement by federal pre-trial detainees, and certainly not in the unprecedented context of a challenge to executive policy implicating the exercise of national security and
7 This court has already dismissed procedural due process challenges to the confinement policy here at issue on grounds of qualified immunity. See Iqbal v. Hasty, 490 F.3d at 167–68.
13

immigration authority in a time of crisis.8
b. Discriminatory Confinement Claim
Nor does the majority cite to any case affording a Bivens remedy for alleged
discriminatory conditions of confinement. The context of the single equal protection
case cited, Davis v. Passman, 442 U.S. 228, was employment discrimination by a
member of Congress. See Majority Op., ante at 32 n.15. That scenario bears almost
no factual and legal similarity to the equal protection claim here, which is informed
not only by the discretion afforded prison authorities in establishing confinement
policies, see generally Florence v. Bd. of Chosen Freeholders, 132 S. Ct. at 1517, but
also by the particular circumstances of the 9/11 attacks, see generally Ashcroft v.
8 The majority cites two cases—not controlling on this court—that allowed federal detainees to pursue a Bivens remedy for restrictive confinement. See Bistrian v. Levi, 696 F.3d 352, 374–75 (3d Cir. 2012); Cale v. Johnson, 861 F.2d 943, 947 (6th Cir. 1988), abrogated on other grounds by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999 (en banc). In neither case, however, did these courts assess “context” by reference to the standard we articulated in Arar. In fact, Bistrian conducted no Bivens extension analysis. Much less were these other circuit courts confronted with the circumstances contributing to the unique scenario presented here.
Insofar as the majority cites the dissenting opinion in Arar for the proposition that this court has “presumed the availability of a Bivens remedy for substantive due process claims,” Majority Op., ante at 32 n.15 (citing Arar, 585 F.3d at 598 (Sack, J., dissenting)), it is, of course, not the dissent, but the en banc majority opinion in Arar that controls our context consideration here. For reasons already discussed, that controlling opinion requires us to look to more than the right alleged to identify an established Bivens context.
14

Iqbal, 556 U.S. at 682 (observing that because 9/11 attacks were ordered and conducted by Arab Muslims, it was “no surprise” that legitimate law enforcement policies to identify 9/11 assailants and to prevent future attacks “would produce a disparate incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims”).
Even in the context of employment discrimination claims, the Supreme Court has been reluctant to construe Davis v. Passman to reach beyond its particular factual scenario, especially where factors—not present in Davis—counsel hesitation. See Chappell v. Wallace, 462 U.S. 296, 297–305 (1979) (declining to extend Bivens to enlisted soldiers’ claims of race discrimination against commanding officers). If, as the majority seems to recognize, Davis cannot be construed to afford a Bivens remedy for every claim of employment discrimination, see Majority Op., ante at 32 n.15, it can hardly be understood to afford a Bivens remedy in the altogether different context of alleged prison confinement discrimination.
c. Strip-Search Claim In challenging the strip-search component of their restrictive confinement, the MDC Plaintiffs invoke the Fourth as well as the Fifth Amendment. The Fourth Amendment cases cited by the majority—Bivens, Groh v. Ramirez, 540 U.S. 551
15

(2004), and Castro v. United States, 34 F.3d 106 (2d Cir. 2006), see Majority Op., ante at 36–37—do not present scenarios similar to that here.
The potentially recurring scenario in Bivens was unlawful arrest, executed without probable cause and with excessive force. See 403 U.S. at 389. That hardly represents a judgment that an implied Bivens damages action is the best way to vindicate every Fourth Amendment claim. See Majority Op., ante at 37. Rather, to come within the context established by Bivens, a Fourth Amendment claim must have legal and factual components akin to unlawful arrest. See generally Arar v. Ashcroft, 585 F.3d at 572. Plaintiffs here do not challenge their arrests, which were all supported by probable cause to believe that each detained alien had violated immigration laws, and which were all effected without undue force. Instead, plaintiffs challenge a policy of restrictive confinement (including strip searches) after lawful arrest.
As for Groh and Castro, the searches there at issue were of private residences, a factually distinct scenario presenting different legally cognizable expectations of privacy giving rise to different legal standards of constitutional reasonableness than those applicable to prison searches. See Covino v. Patrissi, 967 F.2d 73, 75 (2d Cir. 1992) (observing, in § 1983 action, that constitutionality of pre-trial detainee strip
16

searches should be assessed under “legitimate penological interests” standard outlined in Turner v. Safley, 482 U.S. 78, 87 (1987)); accord Iqbal v. Hasty, 490 F.3d at 172.
To summarize, I respectfully dissent from the majority’s conclusion that plaintiff’s policy-challenging claims to restrictive confinement arise in a familiar Bivens context because (1) to the extent the majority employs a rights-injury calculus to reach that conclusion, it construes context at an impermissibly high level of generality; and (2) no case cited by the plaintiffs or the majority has yet made the requisite judgment that a Bivens remedy is the best way to implement constitutional rights in a scenario with legal and factual components similar to those presented here. In short, the context here is “fundamentally different from anything recognized in Bivens or subsequent cases.” Correctional Servs. Corp. v. Malesko, 534 U.S. at 70. Thus, this court must conduct the full analysis necessary to extend a Bivens remedy to a new context. Because the majority declines to do so, see Majority Op., ante at 38 n.17, I undertake that task here.
C. Factors Counseling Against Extending Bivens to Plaintiffs’ PolicyChallenging Claims
Not only do the unique circumstances of this case not fall within an established Bivens context, but a number of those circumstances also counsel
17

hesitation in extending a Bivens remedy here. See Bush v. Lucas, 462 U.S. at 378 (instructing courts to pay “particular heed” to “any special factors counseling hesitation before authorizing a new kind of federal litigation”); accord Minneci v. Pollard, 132 S. Ct. at 621; Wilkie v. Robbins, 551 U.S. at 550; Arar v. Ashcroft, 585 F.3d at 573 (characterizing “special factors” as “embracing category,” which includes any circumstance provoking hesitation about propriety of court entertaining damages claim in absence of congressional action). I discuss four factors in particular, the first three of which are inextricably intertwined: (1) plaintiffs challenge an official executive policy (rather than rogue action), implicating (2) the executive’s immigration authority, (3) as well as its national security authority, and (4) Congress has afforded no damages remedy to 9/11 detainees despite awareness of the concerns raised here.
1. Official Executive Policy Plaintiffs challenge what they themselves characterize as an official confinement policy propounded by the nation’s two highest ranking law enforcement officials, the Attorney General and the FBI Director, in response to the national security threat raised by the terrorist attacks of 9/11. Neither plaintiffs nor the panel majority identifies any case affording a Bivens remedy in the context of a
18

constitutional challenge to executive branch policy, and certainly not to policy made at the cabinet level. This is not surprising. A Bivens action has never been considered a “proper vehicle for altering an entity’s policy.” Correctional Servs. Corp. v. Malesko, 534 U.S. at 74. While Malesko made this observation in declining to extend Bivens to a suit against a corporate defendant, this court has recognized en banc that it applies with equal force to claims against individuals. As we explained in Arar v. Ashcroft, allowing a private party to maintain a Bivens action against federal officials for “policies promulgated and pursued by the executive branch, not simply isolated actions of individual federal employees . . . is without precedent and implicates questions of separation of powers as well as sovereign immunity.” 585 F.3d at 578.
That admonition counsels particular hesitation here where the challenged confinement policy was purportedly propounded and maintained not by rogue actors, see Kreines v. United States, 33 F.3d 1105, 1108 (9th Cir. 1994) (stating that Bivens actions are generally brought “against rogue officers who step outside the scope of their official duties”), but by persons specifically charged by the President
19

with primary responsibility for homeland defense after 9/11.9 In this regard, it is
worth recalling that the confinement policy here at issue was not the only action
taken by the nation in response to the security exigencies presented by the 9/11
attacks. Within a week, the United States went to war.10 Defendants Ashcroft and
Mueller were among those senior officials who served as the President’s “war
council,” and it was in that context that they were charged with homeland defense.11
These circumstances should only add to our hesitation in judicially implying a
damages remedy against executive officials who might well be understood to have
been acting as “the hand of the president” in formulating policies responding to a
9 See The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks upon the United States (“9/11 Report”) 333 (2004), available at http://1.usa.gov/1AMXOO4 (detailing President’s written assignment of responsibility for homeland security after 9/11 to Attorney General Ashcroft, FBI Director Mueller, and CIA Director George Tenet); see also Jack Goldsmith, The Terror Presidency 75 (2007) (recounting that, at September 12, 2001 meeting of National Security Council, President Bush told Attorney General Ashcroft, “‘Don’t ever let this happen again,’” a “simple sentence” that “set the tone for everything Ashcroft’s Justice Department would do in the aftermath of 9/11”). 10 See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). 11 See 9/11 Report 330 (identifying Attorney General and FBI Director, along with Vice President, Secretaries of State and Defense, Chairman and Vice-Chairman of Joint Chiefs, National Security Advisor, CIA Director, and President’s Chief of Staff, as “top advisers” convened by President on night of 9/11 and subsequently denominated by him as his “war council” in responding to terrorist attacks).
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national emergency.12
Nor is a different conclusion warranted here because subordinates of the
Attorney General may have disagreed among themselves about the parameters of
the challenged policy. See Majority Op., ante at 49.13 As this court has recognized,
a Bivens damages action is not the appropriate vehicle for reopening executive
branch debates so that the judiciary can second-guess the final policy decision. See
Benzman v. Whitman, 523 F.3d 119, 126 (2d Cir. 2008) (observing that “right of
federal agencies to make discretionary decisions when engaged in disaster relief
without the fear of judicial second-guessing” raises separation-of-powers concern
cautioning hesitation in extending Bivens (internal quotation marks omitted)). The
12 In Ponzi v. Fessenden, 258 U.S. 254, 262 (1922), Chief Justice (and former President) Taft described the Attorney General as “the hand of the president” in protecting United States interests in legal proceedings. 13 The majority locates evidence of disagreement between the FBI and INS with respect to the MDC Plaintiffs’ continued restrictive confinement in the ADMAX SHU in an OIG Report’s account of a November 2, 2001 meeting. See Dep’t of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (“OIG Report”) 55–56 (April 2003), available at http://1.usa.gov/1ygkjKg. This is misleading. As I explain infra at 52–53, the OIG Report makes plain that the disagreement voiced by FBI and INS representatives at that meeting pertained not to whether illegal aliens detained at the MDC should continue to be held in the ADMAX SHU, but to whether New York list detainees (housed both restrictively at the MDC and in general population at the Passaic County Jail) should continue to be held at all.
21

Fourth Circuit reached that same conclusion in declining to extend Bivens to a due process challenge to the executive’s designation of enemy combatants in the war on terrorism, a matter on which the FBI and Defense Department had allegedly disagreed. See Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012). In so ruling, Lebron observed that the claims not only intruded on “past executive deliberations affecting sensitive matters of national security,” but also risked chilling frank, future policy discussions in this area “shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.” Id. at 551.
As earlier stated, hesitation in extending Bivens does not suggest that federal policymakers—even those appointed by the President and of cabinet rank—are not bound by constitutional constraints. See supra at 1–2. It simply recognizes that where an executive policy is at issue, Congress, not the judiciary, is the branch best suited to decide whether a damages action is the appropriate vehicle for challenging that policy. See Arar v. Ashcroft, 585 F.3d at 574 (explaining that “federal system of checks and balances provides means to consider allegedly unconstitutional executive policy, but a [judicially created] private action for money damages against individual policymakers is not one of them”); see also Vance v. Rumsfeld, 701 F.3d
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193, 205 (7th Cir. 2012) (en banc) (observing that “normal means to handle defective policies and regulations is a suit under the Administrative Procedure Act or an equivalent statute, not an award of damages against the policy’s author”).
2. Implicating Executive’s Immigration Authority Further removing plaintiffs’ claims from any recognized Bivens context, and certainly counseling hesitation in extending a Bivens remedy, is the fact that the challenged policy implicates the executive’s immigration authority. As the Supreme Court has stated—in general and not simply with respect to Bivens—“any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government,” matters “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference” absent congressional authorization. Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952); accord Arar v. Ashcroft, 585 F.3d at 570. The majority, however, concludes that plaintiffs’ immigration status is irrelevant to assessing a Bivens context because illegal aliens have the same rights as citizens to be free from punitive or discriminatory conditions of confinement. See Majority Op., ante at 35. Whatever the merits of that conclusion generally, it begs
23

the relevant Bivens extension question, which is not whether the Constitution affords illegal aliens certain rights co-extensive with those of citizens, but whether a judicially implied damages remedy is the best way to implement such rights when the plaintiff is an illegal alien and not a citizen. See Wilkie v. Robbins, 551 U.S. at 550; Mirmehdi v. United States, 689 F.3d 975, 981 (9th Cir. 2012) (observing that “immigrants’ remedies for vindicating the rights which they possess under the Constitution are not coextensive with those afforded to citizens,” and declining to extend Bivens to illegal alien’s claim of wrongful detention pending deportation).
Even assuming that in the familiar Bivens contexts of false arrest or deliberate indifference, the law were to conclude that the distinction between citizens and aliens did not counsel hesitation in extending a Bivens remedy, that is not this case. Plaintiffs here seek to employ a Bivens action to challenge an executive policy for the restrictive confinement of lawfully arrested illegal aliens while the FBI and CIA determined if they had any connection to recent terrorist attacks by aliens operating in this country or if they posed a threat of future attacks. This is hardly a familiar Bivens context, and such an intrusion on the executive’s immigration authority counsels hesitation in denominating a judicially implied damages remedy against policymakers as the “best way” to implement constitutional guarantees in those
24

circumstances. Wilkie v. Robbins, 551 U.S. at 550. 3. Implicating Executive’s National Security Authority
Plaintiffs’ claims also propose to inquire into—and dispute—the executive’s exercise of its national security authority. Indeed, that seems to be their primary purpose. This is an unprecedented Bivens context strongly counseling hesitation.
To explain, plaintiffs’ due process and equal protection claims require proof of defendants’ specific intent, either to punish, see Bell v. Wolfish, 441 U.S. at 538, or to discriminate, see Washington v. Davis, 426 U.S. 229, 241–42 (1976). Such intent may be either express or implied. See Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). The majority here concludes that plaintiffs plausibly imply proscribed intent through allegations that the challenged confinement policy was “not reasonably related to a legitimate goal.” See Majority Op., ante at 55–58 (citing Bell v. Wolfish, 441 U.S. at 539). It similarly concludes that plaintiffs’ plausibly plead that frequent strip searches were unreasonable relative to any legitimate penological interest. See id. at 97.
The “legitimate goal” at issue here is national security. MDC Plaintiffs propose to prove that their confinement in the ADMAX SHU was punitive and/or discriminatory by showing that there was no real national security need to maintain
25

them in such restrictive confinement pending FBI-CIA clearance, at least not in the absence of prior individualized suspicion that each alien posed a terrorism threat. Plaintiffs propose to make essentially the same showing in challenging the reasonableness of the strip-search policy that accompanied restrictive confinement. Thus, the executive’s exercise of national security authority, far from being irrelevant to plaintiffs’ Bivens claims, see Majority Op., ante at 31, will be the critical focus of this litigation—and of the exhaustive discovery that will undoubtedly attend it.
The Supreme Court has never afforded a Bivens remedy to a party challenging the executive’s exercise of its national security authority. See Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012) (making observation in declining to recognize Bivens action). Indeed, the Court has observed—in general and not simply with respect to Bivens—that “[m]atters intimately related to . . . national security are rarely proper subjects for judicial intervention” in the absence of congressional authorization. Haig v. Agee, 453 U.S. 280, 292 (1981); see Department of Navy v. Egan, 484 U.S. 518, 529–30 (1988) (stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security
26

affairs”); accord Arar v. Ashcroft, 585 F.3d at 578 (noting that intrusion on executive’s national security authority raises “grave concerns about the separation of powers” dictated by the Constitution and, thus, counsels hesitation in extending Bivens).
Further counseling hesitation is the judiciary’s limited competency to make national security assessments, see Arar v. Ashcroft, 585 F.3d at 575–78, particularly ones that could be informed by classified information, see generally Boumediene v. Bush, 553 U.S. 723, 797 (2009) (observing that federal judges do not “begin the day with briefings that may describe new and serious threats to our Nation and its people”).14 That competency concern is only heightened here by the extensive inquiry that will be necessary to understand and assess the risk concerns reasonably informing the challenged restrictive confinement policy. At a minimum, such an inquiry would have to consider the 9/11 attacks, the al Qaeda terrorist organization that ordered them, the attacks’ alien perpetrators, and how those aliens—and, therefore, similarly minded others—could operate in the United States without
14 See also Goldsmith, The Terror Presidency 71–74 (describing “threat matrix” provided daily to President and select officials, including Attorney General and FBI Director).
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detection.15 It would have to consider the history of al Qaeda attacks on American
interests prior to 9/11,16 as well as terrorists’ frequent use of immigration fraud to
conceal their murderous plans.17 It would have to consider past life-threatening
actions by Islamic terrorists while in federal custody.18 It would have to consider
events after 9/11—during the time when the challenged confinement policy was
maintained—that fueled fears of further attacks.19
15 See, e.g., 9/11 Report 227–29 (reporting how, when 9/11 hijackers Mohamed Atta and Marwan al Shehhi encountered difficulty re-entering United States in January 2001 without presenting student visas, they nevertheless persuaded INS inspectors to admit them so that they could continue flight training).
16 Previous al Qaeda attacks included (1) the 1993 World Trade Center bombing (six deaths); (2) the thwarted 1993 conspiracy to bomb New York City landmarks led by the “Blind Sheikh,” Omar Abdel Rahman; (3) the thwarted 1995 plot to explode American commercial airplanes over the Pacific Ocean, led by Ramzi Yousef; (4) the 1996 bombing of an apartment complex housing United States Air Force personnel in Khobar, Saudi Arabia (19 deaths); (5) the 1998 bombings of United States embassies in Tanzania and Kenya (224 deaths); (6) the thwarted millennial bombing of Los Angeles International Airport; and (7) the 2000 bombing of the U.S.S. Cole (17 deaths). See United States v. Farhane, 634 F.3d 127, 132 n.4 (2d Cir. 2011); In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 103–05 (2d Cir. 1998).
17 See, e.g., 9/11 Report 177–78 (discussing how conspirators in Los Angeles Airport plot followed “a familiar terrorist pattern” of using “fraudulent passports and immigration fraud to travel” in furtherance of their scheme).
18 See, e.g., infra at 67–68 (discussing prison actions of Omar Abdel Rahman and Mamdouh Mahmud Salim).
19 Among these events were (1) the September 18, 2001 transmittal of anthrax in letters sent to various government and media offices, killing five, and infecting 17;
28

Hesitation is also counseled by sober recognition that national security
assessments, “particularly in times of conflict, do not admit easy answers, especially
not as products of the necessarily limited analysis undertaken in a single case.”
Lebron v. Rumsfeld, 670 F.3d at 549. This contrasts sharply with “the small number
of contexts in which courts have implied a Bivens remedy,” where it generally has
“been easy to identify both the line between constitutional and unconstitutional
conduct, and the alternative course which officers should have pursued.” Arar v.
Ashcroft, 585 F.3d at 580.
Here, the majority proposes to draw a line between generally and restrictively
confining illegal aliens until they are cleared of terrorist connections. It concludes
that general confinement raises no constitutional concerns—even though the aliens
(2) the mysterious November 12, 2001 crash of an American Airlines plane soon after takeoff from John F. Kennedy Airport, killing all onboard; (3) the thwarted December 22, 2001 attempt by Richard Reid to detonate a shoe bomb onboard an American Airlines plane traveling from Paris to Miami; and (4) the January 2002 kidnapping, and February 2002 beheading of Wall Street Journal reporter Daniel Pearl in Pakistan. Subsequent investigation would link the last two events to al Qaeda, with 9/11 mastermind Khalid Sheikh Mohammed claiming particular credit for the Pearl murder. See Peter Finn, Khalid Sheik Mohammed killed U.S. Journalist Daniel Pearl, report finds, Wash. Post, Jan. 20, 2011, http://wapo.st/NyvICX; Pam Belluck, Threats and Responses: The Bomb Plot; Unrepentant Shoe Bomber Is Given a Life Sentence For Trying to Blow Up Jet, N.Y. Times, Jan. 31, 2003, http://nyti.ms/ZhFZJF.
29

so confined were mostly Arab and Muslim. But it concludes that restrictive confinement of such aliens (at least in the absence of individualized suspicion) goes too far reasonably to relate to national security. See Majority Op., ante at 40–41. Setting aside the question of judicial competency to make this national security assessment, the Supreme Court has specifically cautioned against extending Bivens to claims that propose to show that government officials “went too far” in pursuit of a legitimate objective. Wilkie v. Robbins, 551 U.S. at 556–57. That caution is particularly apt here where, before 9/11, the executive had never had to consider whether, and how restrictively, to confine illegal aliens in the aftermath of a surprise terrorist attack by aliens operating within this country. Much less had the courts ever confronted these questions. Precedent provided no easy answer—and certainly no easy negative answer—to whether it “reasonably related” to national security to hold lawfully arrested illegal aliens in restrictive confinement, at least until the FBI and CIA cleared them of terrorist connections. The law does not, after all, invariably demand individualized suspicion to support the restrictive confinement of lawfully arrested persons to ensure security, a point I discuss further infra at 62–63, and with which the majority agrees. See Bell v. Wolfish, 441 U.S. at 560–62; accord Florence v. Bd. of Chosen Freeholders, 132 S. Ct. at 1523; Whitley v. Albers, 475 U.S. 312, 316
30

(1986); Block v. Rutherford, 468 U.S. 576, 577 (1984); see also Majority Op., ante at 58 n.31.
Where plaintiffs’ policy-challenging claims thus turn on a “reasonably related” inquiry implicating national security decisions made within “a complex and rapidly changing legal framework beset with critical legal judgments that have not yet been made, as well as policy choices that are by no means easily reached,” we not only confront a new Bivens context, but also one strongly counseling hesitation. Arar v. Ashcroft, 585 F.3d at 575, 580 (declining to extend Bivens to claim requiring “inquiry into the perceived need for the [challenged] policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats”).
Again, this does not mean that executive detention and confinement decisions implicating national security are insulated from judicial review. The Constitution’s guarantee of habeas corpus ensures against that. See Boumediene v. Bush, 553 U.S. at 771; Hamdi v. Rumsfeld, 542 U.S. 507, 525, 533 (2004); see also Bell v. Wolfish, 441 U.S. at 526. But the fact that the Constitution expressly affords a libertysafeguarding remedy against the sovereign even when national security concerns are present is hardly an invitation to the judiciary to imply a damages remedy
31

against individual executive officials in these circumstances. See Lebron v. Rumsfeld, 670 F.3d at 550 (drawing distinction). Such a decision is more properly made by the legislative rather than the adjudicative branch of government.20
Thus, where, as here, plaintiffs urge this court to imply a damages action where none has been provided by Congress so that persons unlawfully in this country can challenge executive policy relating to national security in a time of crisis, a proper regard for separation of powers counsels hesitation in judicially extending Bivens to that new context. Indeed, I would decline to extend Bivens to plaintiffs’ policy-challenging claims for this reason alone. There is, however, yet one further factor counseling hesitation.
4. Congress’s Failure To Provide a Damages Remedy The judiciary will not imply a Bivens action where Congress itself “has provided what it considers adequate remedial mechanisms for constitutional
20 Were Congress to afford compensatory relief in the circumstances at issue, it is hardly obvious that it would place the burden on individual officials rather than the sovereign on whose behalf they acted. See generally John Paul Stevens, Reflections About the Sovereign’s Duty to Compensate Victims Harmed by Constitutional Violations, Lawyers for Civil Justice Membership Meeting (“Stevens Reflections”) 11 (May 4, 2015), available at http://1.usa.gov/1Ih51e4 (proposing that “sovereign, rather than its individual agents,” compensate any persons whose rights were violated in course of 9/11 investigation).
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violations.” Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Even where a
congressionally prescribed remedy is lacking, however, courts will hesitate to
extend Bivens to a new context where there is reason to think Congress’s inaction
is not “inadvertent.” Id.; accord Dotson v. Griesa, 398 F.3d 156, 167 (2d Cir. 2005).
That conclusion is warranted here, where Congress has not provided a damages
remedy to post-9/11 detainees despite its awareness that (1) DOJ was arresting and
detaining illegal aliens as part of its response to 9/11, (2) DOJ might press hard
against constitutional bounds in its efforts to safeguard national security, and
(3) concerns had arisen pertaining to the detention of Arab and Muslim aliens.
As to the first point, Attorney General Ashcroft and FBI Director Mueller (as
well as other DOJ officials) repeatedly testified before Congress that the arrest of illegal aliens was part of DOJ’s post-9/11 strategy against terrorism.21
As to the second point, when Congress enacted the PATRIOT Act in October
21 See, e.g., Dep’t of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 312 (Dec. 6, 2001) (statement of John Ashcroft, Att’y Gen. of the United States) (explaining “deliberate campaign of arrest and detention to remove suspected terrorists who violate the law from our streets,” noting that “INS has detained 563 individuals on immigration violations” and that BOP had “acted swiftly to intensify security precautions in connection with al Qaeda and other terrorist inmates,” and adding that DOJ “has briefed members of the House, the Senate and their staffs on more than 100 occasions”).
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2001, it anticipated possible DOJ overreaching and required the Department’s
Inspector General to review and report semi-annually to Congress on any identified
abuses of civil rights and civil liberties in fighting terrorism.22 Indeed, it is pursuant
to this legislative mandate that the Inspector General provided Congress with the
very OIG Reports upon which plaintiffs rely in pleading their complaint.
As to the third point, these OIG Reports discussed concerns about the
treatment of confined Arab and Muslim aliens, and Congress’s attention to these
concerns is evident in the public record.23 Despite its awareness of these matters,
however, neither in enacting the PATRIOT Act, nor in the more than thirteen years
that have now followed—during which time portions of the PATRIOT Act were re-
authorized five times24—has Congress afforded a damages remedy to aliens who
22 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“PATRIOT Act”), Pub. L. No. 107-56, § 1001, 115 Stat. 272, 391 (2001). 23 See, e.g., Oversight Hearing: Law Enforcement and Terrorism: Hearing Before the S. Comm. on the Judiciary, 108th Cong. 192 (July 23, 2003) (questioning by Sen. Patrick Leahy of FBI Director Mueller about OIG report “alleging, among other things, the abuse of immigrants being held in Federal custody,” particularly “Muslim and Arab immigrants being held on civil violations of our immigration laws”). 24 See Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (“USA FREEDOM Act”), Pub. L. No. 114-23, 129 Stat. 268 (2015); PATRIOT Sunsets Extension Act of 2011, Pub. L. No.
34

were, or in the future could be, detained in connection with terrorism investigations.
We must presume that Congress was aware that alternative, albeit non-
compensatory, remedies were available to challenge unconstitutional confinement,
notably, habeas corpus and the “remedial mechanisms established by the BOP,
including suits in federal court for injunctive relief.” Correctional Servs. Corp. v.
Malesko, 534 U.S. at 74 (observing that injunctive relief has long been recognized as
proper means for altering unconstitutional policy); see Bell v. Wolfish, 441 U.S. at
526 (habeas corpus review).25 Where Congress, with awareness of the concerns at
issue, as well as the remedies available to address them, legislates repeatedly in an
112-14, 125 Stat. 216 (2011); Act to Extend Expiring Provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 2011, Pub. L. No. 111-141, 124 Stat. 37 (2010); USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub. L. No. 109-178, 120 Stat. 278 (2006); USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (2005). 25 MDC Plaintiff Baloch was among the illegal aliens arrested in the 9/11 investigation who filed a habeas petition to challenge his confinement. See Turkmen v. Ashcroft, No. 02 CV 2307 (JG), 2006 WL 1662663, at *5 (E.D.N.Y. June 14, 2006) (“Turkmen I”) (stating that Baloch filed habeas petition and six weeks later was transferred from ADMAX SHU to general population), aff’d in part, vacated in part, 589 F.3d 542 (2d Cir. 2009) (“Turkmen II”); see also OIG Report 87, 99–100, 102 (reporting other detainees’ filing of habeas petitions).
The Ninth Circuit has cited the availability of a habeas remedy (and plaintiffs’ pursuit of such relief) as a factor counseling hesitation in extending Bivens to claims of unlawful detention. See Mirmehdi v. United States, 689 F.3d at 982.
35

area without affording a damages remedy, there is strong reason to think that its inaction was not inadvertent and, thus, for the judiciary to hesitate before extending Bivens to that area. See Klay v. Panetta, 758 F.3d 369, 376 (D.C. Cir. 2014) (“If Congress has legislated pervasively on a particular topic but has not authorized the sort of suit that a plaintiff seeks to bring under Bivens, respect for the separation of powers demands that courts hesitate to imply a remedy.”); Lebron v. Rumsfeld, 670 F.3d at 551–52 (observing that where “Congress was no idle bystander” and had “devoted extensive attention” to the concerns at issue in case but nonetheless did not create damages remedy, court could infer that “congressional inaction ha[d] not been inadvertent”); cf. Arar v. Ashcroft, 585 F.3d at 573 (stating that “complexity” of remedial immigration scheme created (and frequently amended) by Congress would ordinarily warrant “strong inference that Congress intended the judiciary to stay its hand and refrain from creating a Bivens action in this context”).
Accordingly, insofar as plaintiffs invoke Bivens to challenge an official executive policy for the restrictive confinement and strip searching of illegal aliens in the aftermath of the 9/11 attacks, I conclude that their claims must be dismissed because a Bivens remedy has not been extended to such a context, and factors strongly counsel against this court doing so here. If illegal aliens should be afforded
36

a damages remedy to challenge an executive policy implicating immigration and national security authority, that decision should be made by Congress rather than by the courts. See Arar v. Ashcroft, 585 F.3d at 580–81 (“Congress is the appropriate branch” to decide whether policy decisions “directly related to the security of the population and the foreign affairs of the country” should be “subjected to the influence of litigation brought by aliens”). II. Defendants Are Entitled to Qualified Immunity
A. The Concept of Qualified Immunity Whether or not a Bivens action is available to challenge the executive policy at issue, defendants are entitled to dismissal on grounds of qualified immunity. Qualified immunity—a concept derived from common law—shields federal and state officials from claims for money damages “unless a plaintiff pleads facts showing that (1) the official violated a statutory or constitutional right, and (2) the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. alKidd, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For law to be clearly established, it is not necessary to identify a case directly on point. But precedent must have spoken with sufficient clarity to have placed the constitutional question “beyond debate.” Id. at 2083; accord Carroll v.
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Carman, 135 S. Ct. 348, 350 (2014). Put another way, the law must have made “the contours” of the asserted right “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. alKidd, 131 S. Ct. at 2083 (internal quotation marks omitted).
Qualified immunity affords such a broad shield to protect not simply government officials but government itself, specifically, “government’s ability to perform its traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167 (1992). Thus, qualified immunity is afforded to ensure both that talented persons are not deterred from entering public service by the threat of crippling damages suits, see id., and that those in government service act “with the decisiveness and the judgment required by the public good,” Scheuer v. Rhodes, 416 U.S. 232, 240 (1974); accord Filarsky v. Delia, 132 S. Ct. 1657, 1665 (2012); Richardson v. McKnight, 521 U.S. 399, 409 (1997) (describing “unwarranted timidity” on the part of those engaged in public’s business as “most important special government immunity-producing concern”); Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010) (recognizing that qualified immunity is animated by “concern that for the public benefit, public officials be able to perform their duties unflinchingly and without constant dread of retaliation”).
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Toward this end, qualified immunity serves to give public officials “breathing
room to make reasonable but mistaken judgments” without fear of disabling
liability. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (internal quotation
marks omitted). Indeed, the standard is sufficiently forgiving that it protects “‘all
but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v.
al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).26
It is difficult to imagine a public good more demanding of decisiveness or
more tolerant of reasonable, even if mistaken, judgments than the protection of this
nation and its people from further terrorist attacks in the immediate aftermath of the
horrific events of 9/11.27 Whatever lessons hindsight might teach about how best to
achieve this legitimate government objective within our system of laws, I cannot
26 The Supreme Court’s recent repeated unanimous awards of qualified immunity emphasize the narrow circumstances in which government officials may be held personally liable for their actions in suits for money damages. See, e.g., Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015); Carroll v. Carman, 135 S. Ct. at 350–52; Lane v. Franks, 134 S. Ct. 2369, 2383 (2014); Wood v. Moss, 134 S. Ct. 2056, 2070 (2014); Plumhoff v. Richard, 134 S. Ct. 2012, 2023–24 (2014); Stanton v. Sims, 134 S. Ct. 3, 7 (2013). 27 See generally Stevens Reflections 9 (advocating absolute immunity for “dedicated public officials”—including Ashcroft and Mueller—who, in aftermath of 9/11, were “attempting to minimize the risk of another terrorist attack,” while proposing that federal government assume responsibility for compensating any persons whose rights were violated).
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conclude that defendants here were plainly incompetent or defiant of established law in instituting or maintaining the challenged restrictive confinement policy. Insofar as the majority decides otherwise based on its determinations that plaintiffs have (1) plausibly pleaded violations of Fourth and Fifth Amendment rights, (2) which rights were clearly established at the time of defendants’ actions, I respectfully dissent. As to the second point in particular, I think the majority defines established law at an impermissibly “high level of generality.” Id. at 2084.
B. Punitive Confinement The MDC Plaintiffs having been lawfully arrested for, but not yet convicted of, violations of federal immigration law, their confinement status was that of pretrial detainees. The Fifth Amendment guarantee of substantive due process does not permit pre-trial detainees to be subjected to confinement, or to restrictive conditions of confinement, “for the purpose of punishment.” Bell v. Wolfish, 441 U.S. at 538. At the same time, due process does not preclude restrictive confinement “incident of some other legitimate government purpose.” Id. In short, pre-trial confinement, or a condition of pre-trial confinement is not deemed “punishment” in the abstract, but only by virtue of the purpose for which it is imposed. To maintain a punitive confinement claim, then, a pre-trial detainee must
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plausibly plead that a defendant imposed restrictive confinement with the specific intent to punish. See id. Where, as here, plaintiffs propose for such intent to be implied, they must plead facts sufficient to admit a plausible inference that the challenged conditions of their confinement were “not reasonably related to a legitimate goal” but, rather, were “arbitrary or purposeless.” Id. at 539. The burden is significant because a reasonable relatedness inquiry is not an end in itself. Rather, it is a proxy for determining a defendant’s true intent. Thus, a plaintiff does not plausibly plead punitive intent simply by alleging some mismatch between challenged conditions of confinement and the legitimate goal they are intended to serve. See, e.g., id. at 558–60 (rejecting challenge to routine body cavity searches of pre-trial detainees following contact visits even though there had been only one reported attempt to smuggle contraband into facility in body cavity); accord Block v. Rutherford, 468 U.S. at 587 (rejecting lower courts’ characterization of total ban on contact visits as excessive in relation to security and other interests at stake). The mismatch must be so glaring as to make the challenged condition “arbitrary or purposeless” relative to any legitimate goal. Moreover, when the professed legitimate goal is security, the plausibility of any arbitrary or purposeless assertion must be considered in light of the “wide-ranging deference” that the law accords
41

prison administrators in determining the conditions necessary to preserve discipline and security. Bell v. Wolfish, 441 U.S. at 547 (cautioning that courts must not depend on their own “idea of how best to operate a detention facility”); accord Florence v. Bd. of Chosen Freeholders, 132 S. Ct. at 1517; Trammell v. Keane, 338 F.3d 155, 163 (2d Cir. 2003).
Further, as the Supreme Court recently explained in rejecting an earlier discriminatory confinement challenge to the very policy here at issue, plaintiffs cannot carry their pleading burden by alleging facts that admit only a “possibility” of defendants’ proscribed intent. Ashcroft v. Iqbal, 556 U.S. at 678. “[F]acts that are merely consistent with a defendant’s liability . . . stop[] short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). This is particularly so where “more likely” legitimate explanations for defendants’ actions are “obvious.” Id. at 681–82.
1. DOJ Defendants The panel majority concludes—and I agree—that plaintiffs fail plausibly to plead that the DOJ hold-until-cleared policy, as applied ab initio to illegal aliens arrested in the course of the FBI’s 9/11 investigation, implies the DOJ Defendants’ punitive intent. The “obvious” and “more likely explanation[]” for the policy was
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the government’s legitimate interest in national security, specifically, in identifying and apprehending any persons connected with the 9/11 terrorist attacks and in detecting and preventing future attacks. Id. In pursuing those goals, the DOJ Defendants were entitled to assume that subordinates would lawfully implement the hold-until-cleared policy. See Majority Op., ante at 40; see also Turkmen v. Ashcroft, 915 F. Supp. 2d 314, 340 (E.D.N.Y. 2013) (“Turkmen III”).
Where I depart from the majority is in its determination that plaintiffs plausibly plead that the DOJ Defendants’ legitimate national security purpose transformed to proscribed punitive intent by November 2001, when they approved merger of the FBI New York detainee list with the INS national detainee list, thereby maintaining the MDC Plaintiffs in the ADMAX SHU pending FBI-CIA clearance without individualized suspicion of these aliens’ connection to terrorism. See Majority Op., ante at 40–42. Much less can I agree that clearly established law alerted every reasonable official that such actions violated substantive due process.28
28 Plaintiffs themselves never raised this lists-merger theory, either in their briefs to this court or in the district court. The majority, however, views merger of the New York and national lists as the critical event because it construes the pleadings to allege that “illegal aliens were being detained in punitive conditions of confinement in New York” with “no suggestion that those detainees were tied to terrorism except for the fact that they were, or were perceived to be Arab or Muslim.” Majority Op., ante at 40–41. This is not apparent in the record.
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First, insofar as the November 2001 lists-merger decision is the critical factor
For example, when MDC Plaintiff Purna Raj Bajracharya was placed in restrictive confinement, federal officials knew that, approximately two weeks before the 9/11 attacks, he had been observed videotaping a Queens building that housed both a New York FBI unit and the Queens County District Attorney’s Office. See id. at 19. They further knew that when Bajracharya—who had lived illegally in the United States for five years—was questioned about this conduct, he falsely claimed to be a tourist. While these circumstances did not conclusively link Bajracharya to terrorism, no more so did Zacarias Moussaoui’s pre-9/11 interest in flight simulator training for large jets. What both circumstances did provide, however, was individualized suspicion for investigating these mens’ ties to terrorism, which in Moussaoui’s case led to his conviction for participation in the 9/11 conspiracy. See United States v. Moussaoui, 591 F.3d 263, 266 (4th Cir. 2010).
Further, New York list detainees were not uniformly detained in “punitive” conditions—by which I understand the majority to be referring to highly restrictive conditions of confinement rather than to the intent with which such restrictions were imposed. Much less were they so confined for no reason other than ethnicity or religion. This is evident from the fact that the vast majority of the approximately 300 persons on the New York list at the time of the merger decision were Arab or Muslim. Nevertheless, no more than 84 detainees were ever restrictively confined in the ADMAX SHU. See OIG Report 2, 22, 111. The remainder were held in general confinement at the Passaic County Jail. The designation difference appears generally to have been based on whether an arrested illegal alien was designated “high interest,” “of interest,” or “interest undetermined” to the 9/11 investigation. See OIG Report 18, 111 (explaining that arrested illegal aliens in first category were generally held in high security confinement at MDC, while persons in latter two categories were generally held in less restrictive confinement at Passaic County Jail). Nevertheless, because the OIG Report provides no specifics on this point, and because plaintiffs allege that some of them were detained at the MDC “even though they had not been classified ‘high interest,’” Fourth Am. Compl. ¶ 4. I do not pursue the matter further. Rather, I proceed to explain why plaintiffs fail, even under the majority’s lists-merger theory, plausibly to plead a claim for punitive (or discriminatory) confinement, much less one supported by clearly established law.
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in the majority’s identification of a plausible punitive confinement claim, plaintiffs fail to plead a sufficient factual basis for ascribing the merger decision to any of the three DOJ Defendants. See Ashcroft v. Iqbal, 556 U.S. at 678. Their allegations—that Attorney General Ashcroft “ordered that” New York list detainees “be detained until cleared and otherwise treated as ‘of interest,’” and that FBI Director Mueller and INS Commissioner Ziglar “were fully informed of this decision, and complied with it,” Fourth Am. Compl. (“Compl.”) ¶ 47—are plainly not based on personal knowledge and, in fact, are belied by the very OIG Report on which they rely to support their claims, see id. ¶ 3 n.1. That report states quite clearly that it was Associate Deputy Attorney General Stuart Levey who, at the end of the November 2, 2001 meeting with FBI and INS representatives, “decided that all the detainees on the New York list would be added to the INS Custody List and held without bond.” OIG Report 56. To be sure, plaintiffs profess to incorporate the OIG Report into their pleadings only to the extent it is not “contradicted” by their own allegations. Compl. ¶ 3 n.1. But that begs the question of whether there is sufficient factual matter—either in plaintiffs’ allegations or in the OIG Report—plausibly to ascribe merger responsibility to any of the DOJ Defendants. There is not. Nothing in the OIG Report indicates that Levey’s merger decision was ever ordered or endorsed
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by Attorney General Ashcroft, FBI Director Mueller, or INS Commissioner Ziglar, or even communicated to them.
In concluding otherwise, the majority asserts that OIG identification of Levey as the lists-merger decisionmaker does not absolve Ashcroft of responsibility because the OIG appears not to have asked Ashcroft about his role in that decision. See Majority Op., ante at 50. To the extent this implies OIG negligence or oversight, that hardly supplies a factual basis for inferring Ashcroft’s responsibility. See Ashcroft v. Iqbal, 556 U.S. at 678. In any event, negligence is belied by the OIG’s detailed 198-page, single-spaced report, which includes a careful discussion of when, how, and by whom the merger decision was made. See OIG Report 55–57; see also Compl. ¶ 3 n.1 (describing “well-documented” OIG Report).29
Nor can the majority infer Ashcroft’s responsibility simply by referencing “the importance of the merger and its implications for how [Ashcroft’s] lawful original
29 The majority responds that I mistakenly treat “the OIG reports as a repository of all . . . facts” relevant to plaintiffs’ claims, “measur[ing] plausibility by the absence or presence of fact-findings” in these reports. See Majority Op., ante at 50. Not so. It is plaintiffs who support their pleadings by incorporating the OIG Reports. And it is the majority that maintains that statements in (or in the instant example, an omission from) the OIG Report, reasonably establish the plausibility of plaintiffs’ claims. I herein demonstrate only why no “factual matter” supports such a conclusion. Ashcroft v. Iqbal, 556 U.S. at 678.
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[hold-until-cleared] order was being carried out.” Majority Op., ante at 51. Not only is the assertion conclusory, but also Ashcroft v. Iqbal holds that even facts “merely consistent with a defendant’s liability . . . stop[] short of the line between possibility and plausibility.” 556 U.S. at 681–82 (internal quotation marks omitted).
Insofar as the majority maintains that the OIG Report itself provides factual support for a plausible inference that Ashcroft, not Levey, was the ultimate merger decisionmaker, the conclusion does not bear close examination. For example, the majority highlights part of the OIG Report indicating that, at the same November 2 meeting where the lists-merger question arose, an INS official questioned the need for CIA (as well as FBI) checks prior to releasing 9/11 detainees, prompting Levey to reply that he would need to check to see if “‘any detainees could be released without the CIA check.’” Majority Op., ante at 51 (quoting OIG Report 56). The majority reasons that if this statement is construed to suggest Levey’s “lack of authority” to make a decision as to CIA checks, it plausibly “supports the conclusion that Levey . . . had to take [the question] to more senior officials.” Id. at 51–52. The majority then quotes another part of the OIG Report indicating that, in late November, when the INS Chief of Staff asked if DOJ would reconsider the CIA check requirement, Levey was still concerned about “‘chang[ing] the CIA check
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policy without additional input.’” Id. at 52 (quoting OIG Report 62). It concludes that “if Levey was not comfortable changing the CIA check policy without input from more senior officials, he certainly would not have been comfortable making the decision on his own to double the number of detainees subject to that policy in the first instance” and, therefore, it is plausible to think that he brought the question to Ashcroft. Id.
This reasoning is wholly speculative in assuming Levey’s equal discomfort with the CIA check and merger decisions. Moreover, the majority’s inference that Ashcroft was the consulted “senior official” is defeated by the very OIG Report on which it purports to rely. That report specifically identifies the person Levey consulted about continuing CIA checks: it was not Attorney General Ashcroft, but “David Laufman, the Deputy Attorney General’s Chief of Staff.” OIG Report 62. It was Laufman who advised Levey to continue the CIA checks. See id.30 In its footnote acknowledgment of Laufman’s role, the majority denies any intent to imply Ashcroft’s responsibility for the CIA checks decision. It maintains that “the only
30 The majority can hardly have overlooked the OIG’s identification of Laufman because it occurs in the very sentence of the Report that the majority quotes (in part) about Levey’s continuing discomfort with making a CIA check decision in late November 2001. See OIG Report 62.
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relevance of the CIA checks decision, period, is that Levey was not capable of making it on his own, suggesting that he also would not be able to make the list merger decision on his own.” Majority Op., ante at 52 n.27. What the majority fails to explain, however, is how that analogy supports an inference that Ashcroft made the merger decision.
While that could end this discussion, I further note that the OIG Report does not, in fact, permit one to infer from Levey’s discomfort with canceling CIA checks on his own that he must have been equally uncomfortable with making the listsmerger decision. The OIG Report expressly states that Levey made the lists-merger decision “[a]t the conclusion of the [November 2] meeting” at which the subject was first raised to him. OIG Report 56. In short, there was no delay in Levey’s making of the merger decision for him to consult with Ashcroft or anyone else, leaving the majority’s reasoning on this point wholly without any basis in fact.
The majority responds that because “the issue of the New York list was discovered in October 2001, . . . surely it is plausible that Levey consulted with more senior officials, including Ashcroft, prior to [the November 2] meeting.” Majority Op., ante at 53 (emphasis in original). Even if this were an accurate account of events, it admits no more than a possibility that Levey consulted with anyone in the
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interim, much less that the person consulted was Ashcroft. But I do not think this account is accurate. While the OIG Report does detail an October 22, 2001 meeting at which DOJ, FBI, and INS representatives discussed “problems presented by the New York List,” the critical fact omitted by the majority is that Levey was not in attendance. OIG Report 55. The OIG Report states that what Levey attended was a “follow-up meeting” on November 2, 2001. It was there that he heard the competing views of the three interested entities, and made the merger decision. Id. at 55–56. The majority nevertheless deems it plausible that Levey learned about the October New York list discussion in advance of the November meeting because “Levey would not attend the November 2 meeting without knowing its agenda.” Majority Op., ante at 53 n.29. This gave him “time to consult with more senior officials, including Ashcroft, before communicating a decision” at the November 2 meeting. Id. (emphasis added). Such attenuated reasoning stops well “short of the line between possibility and plausibility.” Ashcroft v. Iqbal, 556 U.S. at 681–82 (internal quotation marks omitted). It is pure speculation.31
31 In another footnote, the majority further asserts that Levey’s communication with Ashcroft about the lists-merger decision, and Ashcroft’s approval of the merger, find support in Ziglar’s statement to the OIG that “he [i.e., Ziglar] contacted the Attorney General’s Office on November 7, 2001 [i.e., five days after Levey had already made the merger decision], to discuss concerns about the clearance process, especially the
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Thus, the pleadings, even with incorporation of the OIG Report, do not
“contain sufficient factual matter” plausibly to ascribe the lists-merger decision to
the DOJ Defendants Ashcroft v. Iqbal, 556 U.S. at 678 (stating that well-pleaded
facts must permit court to infer more than mere possibility of misconduct).
Second, even if plaintiffs could plausibly allege the DOJ Defendants’
responsibility for the merger decision—which they cannot—plaintiffs fail to plead
that these defendants thereby intended for plaintiffs to be held in the MDC’s
ADMAX SHU. The Complaint pleadings quoted at the start of the preceding point,
see supra at 44–45, assert only that New York list detainees should be designated as
“of interest” and held until cleared; they make no mention of any DOJ Defendant
dictating aliens’ continued confinement in the ADMAX SHU, or even their
awareness of that result. Indeed, after merger, most New York list detainees
continued to be held in general confinement at the Passaic County Jail. See OIG
impact of adding the New York cases to the INS Custody list.” OIG Report 66. But the OIG Report makes clear that who Ziglar called was not Ashcroft himself, but his Chief of Staff, and that the person he in fact spoke with was Deputy Chief of Staff David Israelite. Id. at 66–67. Further, when Ziglar’s quoted statement is read in the context of preceding and subsequent paragraphs, it is plain that his concerns related only to the “slow pace” of the FBI’s clearance process, not to the conditions of confinement for New York list detainees held at the MDC. Id. These facts cannot admit a plausible inference that Ashcroft made the merger decision, much less that he made it for a punitive purpose.
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Report 111. Moreover, the OIG Report’s detailed discussion of the lists-merger decision
gives no indication that the issue of continued restrictive—as opposed to general—confinement informed the merger decision in any way. The Report explains that INS officials opposed merger because of “how it would look when [INS] statistics regarding the number of September 11 detainees doubled overnight.” OIG Report 55. The INS feared these high numbers would persist because of the time it was taking the FBI New York office to conduct clearance inquiries. The INS predicted that such delay would make it difficult for its attorneys to argue for continued detention without bail. See id. at 55–56.32 Viewed in this context, the statement of Victor Cerda, Ziglar’s Chief of Staff, explaining INS’s opposition to the merger decision—“INS did not want to begin treating all the detainees on the New York list under the more restrictive INS policies applicable to September 11 detainees,” OIG Report 56—can only be understood to reference the INS policy of
32 At the same time that the OIG Report criticized the slow pace of FBI clearance, it acknowledged that the FBI New York office was under enormous pressure after the 9/11 attacks, both in investigating that event and in preventing future attacks. The New York office had by far the most leads to pursue, in the course of which it encountered the most illegal aliens. See OIG Report 2, 22 (indicating that, of the 762 illegal aliens arrested during the 9/11 investigation nationwide through August 6, 2002, 491 were arrested in New York).
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holding all 9/11 detainees without bond, a restriction that it did not apply to illegal aliens generally, see id. at 73. In sum, the merger debate between the INS and FBI was about whether illegal aliens on the New York list should continue to be detained at all, not about the conditions of their confinement. Thus, the debate admits no inference that the merger decision—by whomever made—was motivated by a desire to subject the MDC Plaintiffs to restrictive confinement.
Third, as the district court observed in dismissing plaintiffs’ punitive confinement claim against the DOJ Defendants, plaintiffs do not allege that these defendants “were even aware” of the challenged restrictive confinement conditions at the MDC. Turkmen III, 915 F. Supp. 2d at 340. The majority nevertheless concludes that the Complaint admits an inference of such awareness, pointing to allegations that (1) FBI Director Mueller oversaw the 9/11 investigation from FBI Headquarters, see Compl. ¶¶ 56–57); and (2) the DOJ Defendants “received detailed daily reports of the arrests and detentions,” id. ¶ 47. See Majority Op., ante at 42. I respectfully submit that these allegations admit no more than a possibility that the DOJ Defendants ever learned of the particular conditions of confinement imposed by BOP officials at the MDC—or, indeed, at any of the other facilities around the country where the 738 illegal aliens arrested in the course of the 9/11 investigation
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were held until cleared. The first allegation, that FBI Director Mueller oversaw the vast 9/11
investigation from headquarters—as opposed to the investigation being run out of one or more field offices—says nothing to support an inference that Mueller would therefore have had personal knowledge as to the particular confinement conditions imposed by the BOP on MDC detainees. See Ashcroft v. Iqbal, 556 U.S. at 678 (holding that complaint must do more than plead facts “merely consistent with a defendant’s liability” to cross the line from “possibility” to “plausibility”). To be sure, plaintiffs allege that the MDC defendants formulated the challenged restrictive conditions “in consultation with the FBI.” Compl. ¶ 65. But the FBI is an organization with more than 13,000 agents among 30,000 employees. Thus, this pleading hardly admits an inference that the FBI Director himself (much less the Attorney General or INS Commissioner) personally participated in or even knew of these consultations.
As to the second allegation highlighted by the majority, even assuming arguendo that it might admit an inference that the DOJ Defendants received daily reports on the number of illegal aliens detained in the 9/11 investigation, and on facts about such persons relevant to the ongoing terrorism investigation, it is pure
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conjecture to think that daily reports to federal authorities at this high level detailed
the particular conditions of confinement under which each arrested alien was being
held at the various facilities being used for that purpose. See id. Indeed, as the
district court observed, plaintiffs themselves allege that the challenged conditions
of confinement at the MDC were the “result” of the DOJ Defendants’ policy of
holding illegal aliens until cleared, rather than a specifically approved element of
that policy. Turkmen III, 915 F. Supp. 2d at 340 (citing Compl. ¶ 61).
Nor do those parts of the OIG Report cited by the majority support a different
conclusion. See Majority Op., ante at 42–44. A BOP official’s statement that “the
Department [of Justice] was aware of the BOP’s decision to house the September 11
detainees in high-security sections in various BOP facilities,” OIG Report 19
(emphasis added), is too vague to ascribe personal awareness to the three DOJ Defendants in this case.33 Moreover, the statement references how the BOP
generally implemented the hold-under-clear policy throughout the country—which
33 Indeed, the OIG Report indicates that a number of DOJ witnesses—including Michael Chertoff, the Assistant Attorney General in charge of the Criminal Division; his Deputy Alice Fisher, who oversaw terrorism issues in the division; David Israelite, the Deputy Chief of Staff to the Attorney General; and Southern District of New York Deputy U.S. Attorney David Kelley, the lead prosecutor on the 9/11 investigation—stated that they either had “no information” or “no input” into where detainees would be held or the conditions of their confinement at the various BOP facilities. Id. at 20.
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the panel concludes does not support plausible constitutional claims against these defendants. It does not reference the particular MDC restrictive confinement here at issue.
Insofar as the Attorney General’s Deputy Chief of Staff recalled “one allegation of prisoner mistreatment being called to the attention of the Attorney General,” id. at 20, a single complaint suggests rogue abuse, not the restrictive confinement policy at issue here. Further, the Attorney General’s response was not to approve such conduct, but to call for a staff inquiry, hardly action implying punitive intent. See id.
BOP Director Kathy Hawk Sawyer did tell the OIG of conversations she had in the weeks following 9/11 with the Deputy Attorney General’s Chief of Staff, David Laufman, and the Principal Associate Deputy Attorney General, Christopher Wray, in which these men expressed “concerns about detainees ability to communicate both with those outside the facility and with other inmates,”and urged the BOP to take “policies to their legal limit” to prevent such communication in order “to give officials investigating the detainees time to ‘do their job.’” Id. at 112–13. But statements by members of the Deputy Attorney General’s staff admit no more than a “possibility” that the Attorney General himself was aware of their
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content. Ashcroft v. Iqbal, 556 U.S. at 678. That conclusion applies with even more force to the FBI Director or INS Commissioner. Moreover, the Laufman-Wray communications appear to have urged a communication blackout for all 9/11 detainees, not just those held at the MDC. See OIG Report 113. Thus, they cannot support an inference that the DOJ Defendants knew the particular restrictive conditions imposed in that facility. Further, it appears that the BOP lifted the communications blackout on 9/11 detainees—even at the MDC—by mid-October 2001, see id. at 114, which is before the November merger decision that is the majority’s triggering date for a plausible claim of punitive and discriminatory confinement by MDC Plaintiffs. Thus, communications before the November merger, by persons other than the DOJ Defendants, about a condition of confinement that BOP lifted before the merger decision was made, support no inference as to what the DOJ Defendants knew about conditions of confinement at the MDC in November 2001.34
Fourth, even if plaintiffs’ allegations were sufficient to admit an inference that
34 For the same reasons that I think pleadings related to the lists-merger decision do not admit a plausible inference that the DOJ Defendants knew of the particular restrictive conditions of confinement at the MDC, I do not think they admit a plausible inference that the DOJ Defendants knew that such conditions were being imposed without individualized suspicion of terrorist connections.
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the DOJ Defendants knew that, as a consequence of the lists’ merger, MDC Plaintiffs would remain in restrictive confinement, that would be insufficient to imply the requisite specific intent. As the Supreme Court explained in Ashcroft v. Iqbal, “purposeful” conduct “requires more than intent as volition or intent as awareness of consequences.” 556 U.S. at 681. It requires that a decisionmaker undertake a course of action “‘because of,’ not merely ‘in spite of’ the action’s adverse effects.” Id. (internal quotation marks and citation omitted). Here, the pleadings provide no factual basis to conclude that anyone made the merger decision because it would keep the MDC Plaintiffs in restrictive confinement.
Fifth, plaintiffs fail in any event plausibly to allege facts admitting an inference that their continued MDC restrictive confinement after November 2001 was “arbitrary or purposeless” to any legitimate objective, so that plaintiffs’ real intent must have been punitive. Bell v. Wolfish, 441 U.S. at 539. That inference is, I submit, foreclosed by the “obvious” and “more likely” explanation for the challenged action: the DOJ Defendants’ determination to identify and apprehend anyone involved in the 9/11 attacks and to safeguard the nation from further terrorist attacks. Ashcroft v. Iqbal, 556 U.S. at 681–82.
This non-punitive motivation is no after-the-fact invention. The Supreme
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Court recognized it to motivate the entire vast investigation that followed 9/11 and pursuant to which plaintiffs were arrested and confined. See id. at 667 (stating that “FBI and other entities within the Department of Justice began an investigation of vast reach to identify the [9/11] assailants and prevent them from attacking anew,” dedicating “more than 4,000 special agents and 3,000 support personnel to the endeavor”). The OIG Report makes the same point. See OIG Report 12–13 (noting Attorney General’s directive that all components of DOJ “focus their efforts on disrupting any additional terrorist threats,” and general understanding within DOJ that every available legal means should be used “to make sure that no one else was killed”).
The panel majority acknowledges that national security concerns “might well” have motivated defendants’ challenged actions, see Majority Op., ante at 106, including the merger decision on which it relies to deny dismissal to the DOJ Defendants, see id. at 54–55 (quoting Levey’s statement to OIG that, in merging lists, “he wanted to err on the side of caution so that a terrorist would not be released by mistake,” OIG Report 56). Indeed, the OIG Report specifically concludes that the merger decision “was supportable, given the desire not to release any alien who might be connected to the [9/11] attacks or [to] terrorism.” OIG Report 71.
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Nevertheless, the majority maintains that, even if the DOJ Defendants were intent on ensuring national security, the mismatch between that object and the restrictive confinement conditions at the MDC was so great (in the absence of individualized suspicion) as to be deemed arbitrary and purposeless, admitting an inference of punitive intent. See Majority Op., ante at 55–58.
Whether a court, upon identifying an obvious non-punitive intent for challenged conduct, can nevertheless allow plaintiffs to pursue a substantive due process claim on a theory of implied punitive intent is not apparent. See, e.g., Ashcroft v. Iqbal, 556 U.S. at 683 (rejecting discrimination claim in such circumstances); Block v. Rutherford, 468 U.S. at 589 (instructing that once court identifies legitimate purpose for challenged confinement policy, its inquiry should end because “further ‘balancing’ result[s] in an impermissible substitution of [the court’s] views” for those of confining authorities). Certainly, the conclusion is not placed “beyond debate” by clearly established law, without which defendants must be afforded qualified immunity. Carroll v. Carmon, 135 S. Ct. at 350; Ashcroft v. alKidd, 131 S. Ct. at 2083.
In urging otherwise, the majority cites Bell v. Wolfish, 441 U.S. 520, and Iqbal v. Hasty, 490 F.3d 143. See Majority Op., ante at 61. Bell v. Wolfish held that if a
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condition of pre-trial confinement “is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the government action is punishment.” 441 U.S. at 539. But that simply states a “general proposition,” which affords “little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S. Ct. at 2084. Moreover, because Wolfish itself rejected all constitutional challenges to the restrictive conditions there at issue, see 441 U.S. at 560–62, it hardly made the parameters of the substantive due process ban on punitive pre-trial confinement “sufficiently clear that every reasonable official would have understood” that the restrictive conditions here at issue were arbitrary or purposeless to ensuring national security in the absence of individualized suspicion of terrorism, Ashcroft v. Al-Kidd, 131 S. Ct. at 2083 (holding that unless law is so clearly established, official is entitled to qualified immunity).
As for Iqbal v. Hasty, this court did not there place beyond dispute the need for individualized suspicion of terrorism to place 9/11 detainees in restrictive confinement. Indeed, that case made no mention of the lack of such suspicion in observing that “[t]he right of pretrial detainees to be free from punitive restraints was clearly established at the time of the events in question, and no reasonable
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officer could have thought that he could punish a detainee by subjecting him to the practices and conditions alleged by the Plaintiff.” Iqbal v. Hasty, 490 F.3d at 169. In fact, this statement was made in concluding that plaintiffs had adequately alleged Warden Hasty’s express punitive intent. That conclusion having been reached under a pleading standard abrogated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. at 680, Hasty’s preclusive effect here is open to question. But even if we assume that this court there correctly concluded that the prohibition on punitive restraints is clearly established in any circumstance where a defendant acts with the express intent to punish, Hasty did not hold that the same conclusion applies in the myriad circumstances where plaintiffs propose to imply intent by challenging the reasonableness of a restraint relative to a legitimate objective. Certainly, Hasty did not hold it well established that the restrictive confinement of lawfully arrested persons without individualized suspicion of a security risk is implicitly punitive.
Meanwhile, considerable law indicates that individualized suspicion is generally not required to impose restrictive conditions of confinement on lawfully arrested detainees in pursuit of a legitimate security objective. Block v. Rutherford, 468 U.S. at 585–87, upheld a blanket prohibition on pre-trial detainees’ contact visits, observing that the “identification of those inmates who have propensities for
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violence, escape, or drug smuggling is a difficult if not impossible task,” id. at 587.
Bell v. Wolfish, 441 U.S. at 558, rejected a challenge to body cavity searches of all
pre-trial detainees after contact visits even though there had been only a single past
incident of contraband being concealed in a body cavity. Whitley v. Albers, 475 U.S.
at 316, held, in the context of a prison riot, that a “shoot low” (i.e., below vital
organs) policy could be applied without individual suspicion to any prisoner
climbing stairs leading to where hostages were being held. Most recently, Florence
v. Board of Chosen Freeholders, 132 S. Ct. at 1523, upheld visual strip searches of all arrestees without individualized suspicion.35
The reasoning of these cases applies with equal, if not more, force here where
defendants had an obvious and legitimate interest in identifying anyone connected
with the 9/11 attacks and in safeguarding the nation from further terrorist attacks.
35 The majority attempts to distinguish these cases by saying that, in each, the Supreme Court did not state that individualized suspicion was not required but, rather, determined that the challenged restrictions reasonably related to the legitimate object of prison security. See Majority Op., ante at 58 n.31. The reasoning is perplexing. Implicit in the rejection of challenges to generally applicable restrictive conditions of confinement is the conclusion that no individualized suspicion was necessary for the condition reasonably to relate to the legitimate object of prison security. In any event, the majority points to no case holding a generally applicable restrictive condition to fail the reasonably related inquiry for lack of individualized suspicion, and certainly not one doing so in the context of a condition whose professed object is national security.
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Because the attacks were carried out by Arab Muslim aliens who proclaimed themselves members of al Qaeda, it is “no surprise” that authorities focused their investigative and preventative attention on persons encountered in the course of the FBI’s 9/11 investigation, who were not lawfully in this country, and who fell within the same ethnic and religious group as the hijackers or as those targeted for recruitment by al Qaeda. Ashcroft v. Iqbal, 556 U.S. at 682 (recognizing that circumstances of 9/11 attacks necessarily produced “disparate, incidental impact on Arab Muslims”); see also United States v. Farhane, 634 F.3d 127, 132 n.4 (2d Cir. 2011) (discussing “fatwa” proclaiming it religious duty of Muslims worldwide to kill Americans and their allies wherever found). Moreover, given (1) the inherent difficulty in identifying in advance of an FBI-CIA investigation who, among such a group of illegal aliens, might have terrorist connections; (2) the serious risk of murderous harm posed by persons with such connections (even while incarcerated36); and (3) events following 9/11 fueling fears of further imminent attacks,37 I cannot conclude that established precedent would have alerted the
36 See infra at 67–68 (discussing actions of Omar Abdel Rahman and Mamdouh Mahmud Salim while incarcerated). 37 See supra at 28 & n.19 (detailing anthrax scare, airliner crash, shoe bomb attempt, and journalist beheading, all within five months of 9/11 attacks).
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Attorney General, the FBI Director, and the INS Commissioner that, in the absence of individualized suspicion of terrorist connections, it was arbitrary or purposeless to national security to hold such illegal aliens in restrictive, rather than general, confinement pending clearance.
In disputing that conclusion, the majority mischaracterizes this dissent to assert that “because the MDC Plaintiffs were, or appeared to be, members of the group—Arab or Muslim males—that were targeted for recruitment by al Qaeda, they may be held in the ADMAX SHU without any reasonable suspicion of terrorist activity.” Majority Op., ante at 56. I suggest no such thing. In fact, no plaintiff was “held” on anything less than probable cause, specifically, probable cause to think the alien was in violation of federal immigration laws. Moreover, the majority itself identifies no plausible constitutional claim against the DOJ Defendants for holding 9/11 detainees until they were cleared of terrorism connections—even though detainees were overwhelmingly Arab and Muslim, and detention continued after the lists-merger decision even without individualized suspicion of terrorism for the New York list detainees. See Majority Op., ante at 39–40. Nor does it identify any precedent clearly establishing that substantive due process does not permit detention to be restrictive in such circumstances unless there is individualized
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suspicion of terrorist connections. It is in the absence of such precedent that I assert the DOJ Defendants are entitled to qualified immunity.
Nor do I suggest that government officials can “hold[] someone in the most restrictive conditions of confinement available simply because he happens to be—or, worse yet, appeared to be—Arab or Muslim.” Majority Op., ante at 57. Rather, as I explain in discussing plaintiffs’ equal protection claim, the pleadings do not admit a plausible inference that the MDC Plaintiffs were restrictively confined because of their ethnicity or religion. See infra Part II.B.
The majority further misconstrues the dissent “to imply that once ‘national security’ concerns become a reason for holding someone,” there is no need to consider whether restrictive conditions reasonably relate to that objective. See Majority Op., ante at 55. Not so. Bell v. Wolfish makes plain that neither confinement, nor any condition of confinement, can be imposed on pre-trial detainees for the purpose of punishment. See 441 U.S. at 535. Thus, I have never suggested that a legitimate national security purpose for holding someone supports the further imposition of restrictive conditions of confinement without any need to consider whether such conditions also reasonably relate to the same objective, or whether they are so arbitrary and purposeless as to admit an inference that their real
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purpose was punishment. What I assert is that an arbitrary and purposeless conclusion as to the restrictive conditions here at issue is not so beyond debate that the DOJ Defendants can be denied qualified immunity.
To explain, isolating the 9/11 detainees confined at the MDC from one another and from the outside world while clearance investigations were conducted ensured that—in the event detainees were found to have terrorist connections—they would not have been able to communicate in ways that either furthered terrorist plans or thwarted government investigations. Further, strict restrictions on prison movement and cell conditions minimized the possibility that, while clearance was pursued, an as-yet-unidentified terrorist associate would threaten either national or prison security. We need only look to our own precedent to understand why the executive would reasonably have had such concerns. In the two years before the 9/11 attacks, convicted terrorist Omar Abdel Rahman (“the Blind Sheikh”) had managed to use his lawyer to communicate from prison to followers in Egypt that he now sanctioned renewed terrorist attacks. See United States v. Stewart, 590 F.3d 93, 163–65 (2d Cir. 2009) (Walker, J., concurring in part and dissenting in part). Also in the year before 9/11, pre-trial detainee Mamdouh Mahmud Salim, charged with participating in the bombings of United States embassies in Africa, viciously
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attacked a guard at New York’s Metropolitan Correctional Center with a sharpened plastic comb, causing the guard both to lose an eye and to suffer permanent brain damage. See United States v. Salim, 690 F.3d 115, 119–20 (2d Cir. 2012). Both men had been held in some degree of restrictive confinement. Events after 9/11, suggesting ongoing terrorist plots, see supra at 28 & n.19, would only have reinforced the executive’s view that national security required that the MDC Plaintiffs be restrictively confined until authorities could determine whether they had terrorist connections. The majority cites no established precedent to the contrary. Nor can it ground an arbitrary and purposeless conclusion in the fact that not all New York list detainees were held in restrictive confinement pending clearance. See Majority Op., ante at 59. As the Supreme Court stated in Bell v. Wolfish, “the Due Process Clause does not mandate a ‘lowest common denominator’ security standard, whereby a practice permitted at one penal institution must be permitted at all institutions.” 441 U.S. at 554. Its singular concern is that defendants’ real purpose not be punitive.
With the benefit—or handicap—of hindsight, persons might now debate how well the challenged restrictive confinement policy at the MDC served national
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security interests.38 But it is no more a judicial function to decide how best to ensure
national security than it is to decide how best to operate a detention facility. See id.
at 539. Rather, on qualified immunity review, our task is to determine whether the
MDC Plaintiffs plausibly allege a substantive due process violation that, in late 2001,
was so clearly established by precedent as to put the illegality of the DOJ
Defendants’ actions beyond debate. See Ashcroft v. al-Kidd, 131 S. Ct. at 2083. For
the reasons stated herein, I conclude that is not this case and that the DOJ
Defendants are, therefore, entitled to dismissal of plaintiffs’ punitive confinement
claim on the ground of qualified immunity.
2. MDC Defendants
By contrast to the DOJ Defendants, MDC Defendants Hasty and Sherman
were personally involved in the MDC Plaintiffs’ restrictive confinement in the ADMAX SHU both before and after the November 2001 merger decision.39 As
38 See 9/11 Report 339 (cautioning, with respect to judging actions leading and responding to 9/11 attacks, that hindsight can both make things seem “crystal clear” that at relevant time were “obscure and pregnant with conflicting meanings,” and make it “harder to reimagine” the “preoccupations and uncertainty” of a past time as memories “become colored” by knowledge of what happened and was written later). 39 The decision to impose strict restrictive confinement was apparently made at the headquarters level of the BOP, see OIG Report 19, with the MDC Defendants establishing the conditions effecting such confinement, see Compl. ¶¶ 24, 26, 68, 75.
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warden and deputy warden of the MDC, however, these defendants have a particular claim to judicial deference in determining the confinement conditions reasonably related to legitimate security interests. See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. at 1517; Bell v. Wolfish, 441 U.S. at 548. The majority concludes that no such deference is warranted here because the MDC Defendants (1) imposed the conditions without adequate supporting information or an evaluation of their propriety, and (2) maintained the restrictive conditions even after learning that they were not supported by individualized suspicion of the detained aliens’ terrorist connections. See Majority Op., ante at 63–65. Moreover, the majority observes that this court denied qualified immunity on a materially identical substantive due process claim in Iqbal v. Hasty, 490 F.3d at 143, 168–69, and identifies no reason to rule differently here. See Majority Op., ante at 73. I respectfully disagree.
First, plaintiffs’ pleadings do not admit a plausible inference that Hasty and Sherman imposed restrictive conditions of confinement without any supporting information or assessment of propriety. As to the latter, the OIG Report recounts that, immediately after the 9/11 attacks, BOP Headquarters ordered that “all detainees who were ‘convicted of, charged with, associated with, or in any way
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linked to terrorist activities’ . . . be placed in the highest level of restrictive detention.” OIG Report 112. A plausible inference of punitive intent cannot reasonably be drawn from the MDC Defendants’ carrying out this order without making an independent assessment of its categorical need. The obvious and more likely motivation for their doing so is national and prison security. Defendants reasonably deferred to their superiors’ assessment that, in the aftermath of a devastating terrorist attack, lawfully arrested illegal aliens, whom the FBI and CIA were investigating for possible terrorist connections, should be kept “in the most secure conditions available until the suspects could be cleared of terrorist activity.” Ashcroft v. Iqbal, 556 U.S. at 683. The Supreme Court has already held that such motivation does not admit a plausible inference of discriminatory intent. See id. No more will it admit a plausible inference of punitive intent.
Further, because it is undisputed that the FBI had designated each MDC Plaintiff as a person “of high interest,” or “of interest” in their ongoing terrorism investigation, and that BOP employees relied on this designation in imposing restrictive confinement, see, e.g., Compl. ¶¶ 1–2, 4; see also OIG Report 111–12, 126, 158, it cannot be said that the MDC Defendants acted without any information so as to admit an inference that their conduct was arbitrary or purposeless. See
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generally Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (holding that police may reasonably rely on information provided by other officers even when confronted with conflicting accounts). Thus, these allegations do not plausibly imply discriminatory intent.
Second, insofar as plaintiffs fault the MDC Defendants for maintaining them in restrictive confinement even after learning that the FBI’s designations were not based on individualized suspicion, I have already explained with reference to the DOJ Defendants why established precedent does not support that conclusion, much less alert every reasonable federal official that restrictive confinement in the absence of individualized suspicion of a security threat violates substantive due process. See supra at 62–63.
Iqbal v. Hasty, 490 F.3d 140, does not dictate otherwise. As discussed supra at 61–62, the court there applied a “notice pleading standard” to “general allegations of knowledge” to identify alleged “purposeful infliction of restraints that were punitive in nature.” Id. at 169. In thus identifying express punitive intent, Hasty never discussed whether the pleadings otherwise plausibly implied intent. Although the MDC Defendants were not parties in Ashcroft v. Iqbal, the Supreme Court’s rejection of the pleading standard employed in Hasty, see 556 U.S. at 684,
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does not admit preclusive effect to Hasty’s assessment of the sufficiency of plaintiffs’ specific intent claims, particularly insofar as they imply intent.40
Accordingly, I would dismiss plaintiffs’ policy-challenging punitive
confinement claim against the MDC Defendants, as well as the DOJ Defendants, on grounds of qualified immunity.41
B. Discriminatory Confinement
To state a Fifth Amendment claim for discriminatory confinement, a plaintiff
must plead sufficient factual matter to show that defendants adopted the challenged
restrictive confinement policy not for a neutral reason “but for the purpose of
discriminating on account of race, religion, or national origin.” Ashcroft v. Iqbal, 556
U.S. at 676–77 (explaining that standard is not satisfied by pleadings of intent as
“volition” or “awareness of consequences”; instead, pleadings must plausibly allege
that defendant undertook conduct “because of,” not merely “in spite of[,]” its
40 Indeed, when reviewing Turkmen I in light of Ashcroft v. Iqbal, we vacated the district court’s decision and remanded “for further proceedings consistent with the standard articulated in Twombly and Iqbal.” Turkmen II, 589 F.3d at 546–47. On remand, the district court did not cite Hasty in identifying a plausible punitive confinement claim against the MDC Defendants. See Turkmen III, 915 F. Supp. 2d at 341. These developments do not comport with a conclusion that Hasty is dispositive on this appeal. 41 This dissent does not pertain to plaintiffs’ non-policy claims of “unofficial abuse” against the MDC Defendants.
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discriminatory effect). The Supreme Court articulated this standard in reversing this court’s determination that these plaintiffs’ original complaint stated a plausible claim for discriminatory confinement based on race, religion, or national origin. See id. at 687. While acknowledging that plaintiffs had pleaded facts “consistent with” purposeful discrimination, the Court concluded that such a claim was not plausible in light of the “obvious,” and “more likely” non-discriminatory reason for the challenged confinement policy, specifically, national security concerns about “potential connections” between illegal aliens identified in the course of the FBI’s investigation of the 9/11 attacks and Islamic terrorism. Id. at 682–83 (holding that, where all pleadings “plausibly suggest[] is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity,” plaintiffs “would need to allege more by way of factual content to nudge [their] claim[s] of purposeful discrimination across the line from conceivable to plausible” (internal quotation marks omitted)).
One might have thought that put plaintiffs’ policy-challenging claims of discriminatory confinement to rest. The majority, however, affords the MDC Plaintiffs another opportunity to pursue these claims, concluding that the newest
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amended complaint now pleads sufficient facts to show that it is “not more likely” that the MDC Plaintiffs were held in restrictive confinement because of suspected ties to terrorism. Majority Op., ante at 83.
The pleadings the majority cites to support this conclusion as to both the DOJ and MDC Defendants can be summarized as follows: (1) the New York FBI office expressly relied on race, religion, ethnicity, and national origin in targeting persons identified in their 9/11 investigation for detention; (2) the DOJ Defendants were aware of and condoned such discriminatory intent by merging the New York FBI detainee list with the INS national detainee list, knowing that the former list was not supported by individualized suspicion of a terrorist threat; (3) the MDC Defendants also knew there was no individualized suspicion tying the aforementioned detainees to terrorism when they confined them in the ADMAX SHU; and (4) the MDC Defendants falsely reported that MDC staff had classified the ADMAX SHU detainees as “high security” based on an individualized assessment when no such assessment was ever conducted. See id. at 55–62. I am not persuaded.
First, the amended complaint’s pleadings of purposeful FBI discrimination are not materially different from those considered in Ashcroft v. Iqbal. See 556 U.S. at 669 (acknowledging that plaintiffs pleaded purposeful designation of detainees
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based on race, religion, or national origin); see also id. at 698 (Souter, J., dissenting) (detailing specific allegations that FBI officials implemented policy that discriminated against Arab Muslim men based solely on race, religion, or national origin). Thus, we are bound by the Supreme Court’s holding that such allegations are inadequate to plead plausible discriminatory intent in light of the obvious and more likely national security explanation for the challenged confinement. See id. at 681–82.
Not insignificantly, in reaching this conclusion, the Supreme Court acknowledged that it was the perpetrators of the 9/11 attacks who injected religion and ethnicity into the government’s investigative and preventative efforts. The Court stated that the attacks “were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples.” Id. at 682. Where a terrorist group thus effectively defines itself by reference to religion and ethnicity, see supra at 64, the Constitution does not require investigating authorities to ignore that reality nor to dilute limited resources casting a wider net for no good reason. It is “no surprise” then that a law enforcement policy—including a
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restrictive confinement policy—legitimately aimed at identifying persons with
connections to the 9/11 attacks and preventing further attacks “would produce a
disparate, incidental impact on Arab Muslims, even though the purpose of the
policy was to target neither Arabs nor Muslims.” Ashcroft v. Iqbal, 556 U.S. at 682;
see also Brown v. City of Oneonta, 221 F.3d at 337 (observing that racial description
of perpetrator, “which originated not with the state but with the victim, was a
legitimate classification within which potential suspects might be found,” even though it might well have disparate impact on minority groups).42
Thus, as in Ashcroft v. Iqbal, plaintiffs cannot plausibly imply proscribed
discriminatory intent from pleadings merely “consistent with” the New York FBI’s
alleged purposeful targeting and detention of aliens based on ethnicity and religion.
556 U.S. at 681–82. Here, those characteristics originated with the terrorists not the
state, the FBI actions were limited to aliens not lawfully in this country and
42 In recently forbidding investigative stereotyping, the Department of Justice nevertheless stated that, “in conducting activities directed at a specific criminal organization or terrorist group whose membership has been identified as overwhelmingly possessing a listed characteristic, law enforcement should not be expected to disregard such facts in taking investigative or preventive steps aimed at the organizations’ activities.” U.S. Dep’t of Justice, Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity 4 (Dec. 2014), available at http://1.usa.gov/1ytxRoa.
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encountered in the course of the 9/11 investigation, and the obvious and more likely
reason for the challenged confinement was ensuring national security in the face of
an Islamic terrorist threat.43
Second, the DOJ Defendants’ purported involvement with the lists-merger
decision also cannot imply these defendants’ discriminatory intent. As I have
already explained with respect to punitive intent, plaintiffs fail plausibly to plead
these defendants’ involvement with that decision. See supra at 44–51.
In any event, the merger decision—by whomever made—applied equally to
all New York list detainees, the larger number of whom were not subjected to
restrictive confinement, but housed in general prison population at the Passaic
43 In discussing the actions of the New York FBI office—and particularly its maintenance of its own list of 9/11 detainees—the OIG and the majority reference that office’s tradition of independence from headquarters. See Majority Op., ante at 24 n.12 (citing OIG Report 54). Such independence does not plausibly imply rogue conduct. To the contrary, in the years before 9/11, the New York FBI office led the nation’s pursuit of Islamic terrorism, as is evident in a number of exemplary investigations. See, e.g., 9/11 Report 72 (commending “superb investigative and prosecutorial effort” of New York FBI and U.S. Attorney’s Office in identifying and convicting perpetrators of first World Trade Center attack, as well as the “Blind Sheikh” and Ramzi Yousef); see also In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93 (affirming New York convictions for terrorist bombings of American embassies in Africa based on guilty verdicts returned only weeks before 9/11). In short, at the time of the 9/11 investigation, there was no FBI field office with greater knowledge of, or experience investigating, Islamic terrorism than that in New York. This, and not invidious discriminatory intent, is the obvious and more likely explanation for its independence.
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County Jail, even though they shared the same racial, religious, and national identities as the MDC Plaintiffs. See supra at 51–52. Such circumstances do not permit discriminatory intent plausibly to be inferred from the merger decision. See generally O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (holding that inference of age discrimination cannot be drawn from “replacement of one worker with another worker insignificantly younger”); James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000) (stating that prima facie case for discrimination required proof of employer “preference for a person not of the protected class”). Indeed, the conclusion that a plaintiff cannot urge an inference of discriminatory purpose from his receipt of treatment less favorable than most members of his own protected class is so obvious that we generally pronounce it summarily. See, e.g., Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 117 (2d Cir. 2010) (summary order). District court opinions in this circuit to the same effect are countless. See, e.g., Baez v. New York, 56 F. Supp. 3d 456, 467–68 (S.D.N.Y. 2014) (collecting cases); White v. Pacifica Found., 973 F. Supp. 2d 363, 381 (S.D.N.Y. 2013) (collecting cases). Thus, no clearly established law would have alerted every reasonable official that the lists-merger decision violated equal protection.44
44 The majority recognizes that the precedent cited herein undermines plaintiffs’ equal protection claim, but it maintains that these holdings properly apply on
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In concluding otherwise, the majority dismisses the Passaic assignments as a
“red herring.” Majority Op., ante at 85. The label will not stick. The reality that
most Arab Muslim detainees on the New York list were not held in restrictive
confinement precludes a plausible inference that arresting FBI agents were intent on
discriminating against Arab Muslims in assigning a minority of New York detainees
to the MDC. Thus, even if the lists-merger decision can be understood to manifest
the DOJ Defendants’ “deference to others’ designation of detainees for particular
facilities,” id. at 84, that is not a factual basis for plausibly inferring their
discriminatory intent against MDC detainees. To overcome this hurdle, the majority
parenthetically suggests that “for all [the DOJ Defendants’] knew, all” New York list
detainees were held in restrictive confinement. Id. This is, again, pure speculation.
Moreover, because the facts are to the contrary, a plaintiff (or a panel majority)
summary judgment review, not dismissal. See Majority Op., ante at 85 n.39. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), does not admit that conclusion. Therein, the Supreme Court observed that it had earlier ruled “at the summary judgment stage” that an inference of anticompetitive collusion could not be drawn from parallel conduct. Id. at 554 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1976)). It then applied that same rule at the motion to dismiss stage, holding that where plaintiffs’ pleadings, taken as true, show only parallel conduct, a conspiracy is not plausibly alleged. See id. at 556. The same principle applies here. Just as evidence of differential treatment within a suspect class is insufficient on summary judgment to demonstrate proscribed discriminatory intent, allegations of such differential treatment are insufficient to plead discriminatory intent so as to defeat a motion for dismissal.
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looking to locate invidious intent in defendants’ possible misunderstanding of the confinement circumstances surely needs to identify some factual basis for its hypothesis. See Ashcroft v. Iqbal, 556 U.S. at 678. That is missing here.
In sum, plaintiffs fail plausibly to plead either that DOJ Defendants were responsible for the lists-merger decision or that the decision was animated by discriminatory intent.
Third, allegations that the DOJ and MDC Defendants maintained the challenged restrictive confinement after learning that the FBI designations were not based on individualized suspicion of terrorist threats are also inadequate to conclude that defendants were “not more likely” concerned with ensuring national and prison security. Majority Op., ante at 83. Indeed, the conclusion is foreclosed by Ashcroft v. Iqbal, 556 U.S. at 681–82, because the discrimination allegations there deemed implausible in light of the more likely national security explanation for defendants’ actions included assertions that the MDC Plaintiffs’ restrictive confinement was not supported by “any individual determination” that such restrictions were “appropriate or should continue.” First Am. Compl. ¶ 97, App. to Pet. for Cert. 173a, Ashcroft v. Iqbal, No. 07-1015 (U.S. Feb. 6, 2008), available at http://1.usa.gov/1CfHJQF. Thus, the majority cannot suggest that when the
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Supreme Court there rejected an equal protection challenge to efforts by “the Nation’s top law enforcement officers . . . to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity,” Ashcroft v. Iqbal, 556 U.S. at 682–83, it did not understand that plaintiffs were complaining of the lack of prior individualized suspicion. See Majority Op., ante at 82–83.45
In any event, and as already explained, courts have upheld the imposition of restrictive conditions of confinement on lawfully arrested persons without requiring individualized suspicion of a security threat, recognizing both the difficulty in identifying which detainees pose the particular risk needing to be addressed, and the serious harm that can ensue from a failure to do so. See supra at 62–63. Thus, no clearly established law would have alerted reasonable officials that restrictive confinement without individualized suspicion was unconstitutionally punitive or discriminatory in the circumstances presented here.
Fourth, allegations that the MDC Defendants (1) failed to follow BOP procedures requiring “individualized determination of dangerousness or risk” for restrictive confinement, and (2) approved documents falsely representing that such
45 The lists-merger pleadings support no different conclusion for reasons just discussed. See Majority Op., ante at 84–85.
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determinations had been made, also do not render it “not more likely” that the challenged conduct was motivated by national security. See Majority Op., ante at 86. This court has already granted qualified immunity to some of these same MDC Defendants on a procedural due process challenge to their failure to follow BOP procedures in connection with the same challenged confinement. See Iqbal v. Hasty, 490 F.3d at 167–68. In doing so, moreover, Hasty acknowledged that the “separation” of the MDC Plaintiffs “from the general prison population could be reasonably understood . . . to relate to matters of national security, rather than an ordinary criminal investigation.” Id. at 167. Hasty further noted that, in 2001–2002, neither the Supreme Court nor this court had considered whether BOP administrative segregation procedures had to be afforded “to persons detained under special conditions of confinement until cleared of connection with activities threatening national security.” Id.
The fact that plaintiffs here use procedural failures to imply discriminatory intent rather than to assert a denial of procedural due process warrants no different qualified immunity conclusion. As the OIG Report indicates, by October 1, 2001, BOP Headquarters had effectively ceded “individualized” risk assessment responsibility for 9/11 detainees to the FBI. A memorandum of that date from
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Michael Cooksey, the BOP Assistant Director for Correctional Programs, “directed all BOP staff, including staff at the MDC, to continue holding September 11 detainees in the most restrictive conditions of confinement possible until the detainees could be ‘reviewed on a case-by-case basis by the FBI and cleared of any involvement in or knowledge of on-going terrorist activities.’” OIG Report 116 (quoting Cooksey’s October 1, 2001 memorandum). In these circumstances, even if the MDC Defendants might be faulted for approving documents suggesting individualized risk assessments of MDC Plaintiffs that were not made by the BOP, their actions cannot plausibly imply discriminatory intent because they are obviously and more likely explained by reliance on the FBI’s designations of each MDC Plaintiff as a person “of high interest,” or “of interest,” to the ongoing terrorism investigation.
In sum, as to both the DOJ and MDC Defendants, the pleadings highlighted by the majority are insufficient to render “not more likely” what the Supreme Court in Ashcroft v. Iqbal held “obvious” and “more likely”: MDC Plaintiffs were restrictively confined pending FBI-CIA clearance for the legitimate purpose of ensuring national security. 556 U.S. at 681–82. Moreover, to the extent the majority implies discriminatory intent from the MDC Plaintiffs’ restrictive confinement
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without individualized suspicion of terrorist connections, no clearly established law would have alerted every reasonable officer that it violated equal protection so to confine these lawfully arrested illegal aliens pending clearance. Accordingly, I conclude that both the DOJ and the MDC Defendants are entitled to dismissal of the MDC Plaintiffs’ equal protection claims on the ground of qualified immunity.46
C. Fourth Amendment Claim As the majority acknowledges, plaintiffs do not assert that the Fourth Amendment absolutely prohibited them from being strip-searched while incarcerated at the MDC. See Majority Op., ante at 95. Rather, plaintiffs contend that the frequency with which they were strip searched—every time they were removed from or returned to their cells, or randomly even when not so moved, “even when they had no conceivable opportunity to obtain contraband”—was constitutionally unreasonable. Compl. ¶ 112. They further allege that the manner in which they were strip searched—with female officers present or in view of other prisoners and staff, with prohibited videotaping, or with humiliating
46 Because I would dismiss plaintiffs’ equal protection claims, I would also dismiss their § 1985 claims. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (“The language [in § 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.”); accord Reynolds v. Barrett, 685 F.3d 193, 201–02 (2d Cir. 2012).
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comments—was unconstitutional. See id. ¶¶ 112–15. Insofar as plaintiffs seek damages from MDC Defendants Hasty and Sherman
for the challenged strip search policy, Ashcroft v. Iqbal does not admit a theory of supervisory liability on a Bivens claim. See 556 U.S. at 676–77. Rather, plaintiffs must plausibly plead that each Bivens defendant, “through the official’s own individual actions, has violated the Constitution.” Id. at 676. Plaintiffs do not allege that Hasty and Sherman themselves ever participated in any of the challenged strip searches or that they personally developed the policy. The latter conduct is attributed to MDC First Lieutenant Joseph Cuciti. See Compl. ¶ 111.
The majority nevertheless concludes that plaintiffs carry their Iqbal pleading burden by alleging that (1) “Hasty ordered [MDC Captain] Lopresti and Cuciti to design extremely restrictive conditions of confinement,“ which were “then approved and implemented by Hasty and Sherman,” id. ¶ 75; and (2) many of the strip searches “were documented in a ‘visual search log’ created by MDC staff for review by MDC management, including Hasty,” id. ¶ 114. The majority holds that these pleadings are sufficient to allege Hasty’s and Sherman’s personal involvement “in creating and executing” the challenged strip-search policy, or at least their awareness of the searches “based on the search log.” Majority Op., ante at 97–98.
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It then further concludes that neither Hasty nor Sherman is entitled to qualified immunity because, at the time of the MDC Plaintiffs’ confinement, it was clearly established that strip searches had to be “‘rationally related to legitimate government purposes.’” Id. at 100 (quoting Iqbal v. Hasty, 490 F.3d at 172). I cannot join in this reasoning.
First, insofar as plaintiffs challenge the frequency of the strip searches, it is their burden to plead facts sufficient to demonstrate that the challenged policy lacked a rational relationship to a legitimate government objective, specifically, prison security. See Turner v. Safley, 482 U.S. at 89 (establishing standard for challenging prison regulation); Covino v. Patrissi, 967 F.2d at 78–80 (applying standard to body-cavity search challenge). That burden is, moreover, a heavy one because it requires a showing that the “logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.” Turner v. Safley, 482 U.S. at 89–90. I do not think plaintiffs’ pleadings plausibly allege that the frequency with which they were strip searched was so unrelated to prison security as to be arbitrary or irrational.
Plaintiffs assert that they were strip searched “even when they had no conceivable opportunity to obtain contraband.” Compl. ¶ 112. The conclusion
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borrows from Hodges v. Stanley, a case in which this court reinstated a complaint challenging a second strip search under circumstances where “it seems clear that there was no possibility that Hodges could have obtained and concealed contraband.” 712 F.2d 34, 35 (2d Cir. 1983). Hodges, however, was decided before Turner and Covino. Thus, courts cannot assume that its “no possibility” to obtain contraband conclusion invariably equates to the required showing of no rational relationship to a legitimate government purpose. Notably, Hodges reached the “no possibility” conclusion in circumstances where the prisoner had been searched “immediately prior to the search forming the basis of his complaint.” Id. at 35 (emphasis added). Plaintiffs here allege no such immediately successive—and, therefore, purposeless—strip searches. Rather, they complain of random strip searches in their cells or of required strip searches in circumstances involving intervening events—e.g., before and after non-contact visits—that plaintiffs conclusorily maintain afforded them no opportunity to receive contraband. See Compl. ¶ 112. In the aftermath, however, of an all-too-successful attack on a BOP guard by a restrictively confined terrorist suspect, see United States v. Salim, 690 F.3d at 119–20, it was hardly irrational for prison authorities to conclude that persons under investigation for terrorist connections should be strip searched both
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randomly in their cells and whenever they were moved from one location to another
to ensure prison security. Hodges cannot be read to make clear to every reasonable
officer that such searches were unconstitutional. Indeed, this is precisely the sort of
“difficult judgment[] concerning institutional operations” that the Supreme Court
has concluded must be made by “prison administrators . . . , and not the courts.”
Turner v. Safley, 482 U.S. at 89 (internal quotation marks omitted).47
Second, with respect to the manner in which the searches were conducted,
plaintiffs’ claims against Hasty and Sherman depend on these defendants’ review
47 The majority’s reliance on Iqbal v. Hasty, 490 F.3d at 172, in holding otherwise, see Majority Op., ante at 98, is misplaced for the reasons already discussed. See supra at 61–62.
So too is its citation to N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004). See Majority Op., ante at 98 n.44. There, this court held that repetitive strip searches after supervisory transport of persons confined in juvenile facilities were not reasonable under the Fourth Amendment in the absence of reason to suspect the juvenile’s possession of contraband. See N.G. v. Connecticut, 382 F.3d at 233–34. It is hardly apparent that the same conclusion applies where the persons being searched are adults and where they are being confined subject to clearance of terrorist activities. The higher risks to prison and public safety of missed contraband in that circumstance, as well as terrorists’ proved ability to evade even restrictive confinement does not admit a conclusion that N.G. clearly established unreasonableness in the context here at issue. See generally id. at 234 (acknowledging that continuous custody cannot “guarantee” protection for subsequent access to contraband).
Even if such a conclusion were possible, however, N.G. was not decided until 2004. Thus, the majority can hardly rely on that decision as the clearly established law that, in late 2001, put beyond debate that the strip-search policy here at issue violated the Fourth Amendment.
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of a visual search log allegedly created by MDC staff for management. The

“possibility” that defendants reviewed such logs is not enough, however, to state a

plausible claim against them for the manner of the searches. Ashcroft v. Iqbal, 556

U.S. at 678 (stating that “plausibility standard . . . asks for more than a sheer

possibility that a defendant has acted unlawfully”). Indeed, even if their review of

the logs were plausible, it would, at best, support an inference of Hasty’s and

Sherman’s knowledge of the manner in which the searches were being conducted.

Further facts indicating more than negligence in these defendants’ failure to take

corrective action would be necessary plausibly to plead that through their “own

individual actions,” each had “violated the Constitution.” Id. at 676; see also, e.g.,

O’Neill v. Krzeminski, 839 F.2d 9, 11 n.1 (2d Cir. 1988) (“Negligence is not a basis of

liability for constitutional torts.”).

I would thus grant Hasty and Sherman dismissal of the MDC Plaintiffs’

Fourth Amendment claim on the ground of qualified immunity.

*

*

*

In sum, I respectfully dissent from the judgment entered on appeal in this case

insofar as it allows the MDC Plaintiffs to pursue money damages on policy-

challenging Fifth Amendment claims for punitive and discriminatory confinement

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against defendants Ashcroft, Mueller, Ziglar, Hasty, and Sherman, and an attendant policy-challenging Fourth Amendment claim for unreasonable strip searches against defendants Hasty and Sherman. I conclude that no established Bivens action is available for plaintiffs to pursue these claims and that significant factors counsel hesitation in extending Bivens to an action challenging executive policy pertaining to immigration and national security made in a time of crisis. In any event, I would grant defendants’ motions for dismissal on grounds of qualified immunity because plaintiffs fail either to plead plausible constitutional violations or to demonstrate that clearly established law would have alerted every reasonable official that the challenged actions were unlawful.
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 </s> Case 1:02-cv-02307-DLI-SMG Document 834 Filed 08/13/18 Page 1 of 28 PageID #: 9935

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------- x

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER :

IQBAL ABBASI, ANSER MEHMOOD, BENAMAR :

BENATTA, AHMED KHALIFA, SAEED

:

HAMMOUDA, and PURNA RAJ BAJRACHARYA on :

behalf of themselves and all others similarly situated, :

:

Plaintiffs,

:

:

-against-

:

:

JOHN ASHCROFT, ROBERT MUELLER, JAMES W. :

ZIGLAR, DENNIS HASTY, MICHAEL ZENK, JAMES :

SHERMAN, SALVATORE LOPRESTI, and JOSEPH :

CUCITI,

:

:

Defendants.

:

---------------------------------------------------------------------- x

GOLD, STEVEN M., U.S.M.J.:

REPORT & RECOMMENDATION 02-CV-2307 (DLI) (SMG)

INTRODUCTION

This case arises out of the turbulent days following the September 11, 2001 terrorist

attacks. In their Fourth Amended Complaint (“FAC”), Docket Entry 726, plaintiffs

(“detainees”), on behalf of themselves and as representatives of a putative class, assert claims

under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) against various federal

officials, including Warden Dennis Hasty (“Hasty” or “Warden Hasty”), the former warden of

the Metropolitan Detention Center in Brooklyn, New York (“MDC”), former MDC Captain Salvatore LoPresti (“LoPresti”), and former MDC Lieutenant Joseph Cuciti (“Cuciti”).1

1 The caption of this Report mirrors the one in the Fourth Amended Complaint. At this point in the litigation, though, only the following plaintiffs have claims pending before the Court: Ahmer Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Bajracharya. Letter from Rachel Meeropol dated February 20, 2018 at 1, Docket Entry 820. These plaintiffs’ remaining claims are asserted only against defendants Hasty, LoPresti, and Cuciti. Id.

Case 1:02-cv-02307-DLI-SMG Document 834 Filed 08/13/18 Page 2 of 28 PageID #: 9936
The facts underlying plaintiffs’ claims are set forth in detail in several prior decisions rendered during the lengthy procedural history of this case, including Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) and Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015), rev’d in part and vacated in part sub nom. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). Familiarity with those decisions is presumed, and the relevant facts are accordingly recounted here only briefly.
The Fourth Amended Complaint alleges that plaintiffs, each of whom defendants believed to be Arab, South Asian, or Muslim, were arrested on immigration violations following the September 11, 2001 terrorist attacks. FAC ¶ 1. Plaintiffs were then detained pursuant to a “hold-until-cleared” policy promulgated by the Department of Justice and held in the MDC’s most restrictive unit, the Administrative Maximum Special Housing Unit (“ADMAX SHU”). Id. ¶¶ 2, 4, 53. While held in the ADMAX SHU, plaintiffs were physically and verbally abused. Id. ¶ 5. “Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.” Ziglar, 137 S. Ct. at 1853.
Plaintiffs originally asserted claims against several high-level Executive Branch officials, including the then-Attorney General, Director of the FBI, and Commissioner of the Immigration Naturalization Services, as well as against several Bureau of Prisons (“BOP”) officials then holding positions at the MDC, including two Wardens, an Associate Warden, a Captain, and a First Lieutenant (“MDC Officials”). FAC ¶¶ 21-28. Plaintiffs brought what the Supreme Court would later term “detention policy claims” against all of the defendants, alleging that official policies they adopted violated plaintiffs’ Fourth and Fifth Amendment rights by holding plaintiffs in restrictive conditions of confinement and subjecting them to frequent strip searches. Ziglar, 137 S. Ct. at 1858-59; FAC ¶¶ 276-83; 292-96.
2

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Plaintiffs also brought claims specifically against the MDC Officials for alleged violations of their Fourth and Fifth Amendment rights, alleging in essence that these officials tolerated abuse of detainees, including plaintiffs, by MDC guards. Of particular relevance here, plaintiffs allege that Warden Hasty encouraged lower-level officers to abuse plaintiffs; that he prevented detainees “from using normal grievance procedures”; that he avoided the unit where the detainees were kept; that he ignored evidence of the abuse, even though he was aware of detainee complaints, hunger strikes, and suicide attempts; and that he did not stop or even attempt to stop the abuse. Ziglar, 137 S. Ct. at 1864; FAC ¶¶ 77-78; 106-10, 300. In short, in what the Supreme Court would later label their “prisoner abuse claim,” a term which this Court adopts for purposes of this Report, plaintiffs allege that Warden Hasty was deliberately indifferent to abuse of the detainees occurring on his watch. Ziglar, 137 S. Ct. at 1863.
In Ziglar, the Supreme Court considered whether causes of action for plaintiffs’ detention policy and prisoner abuse claims could properly be brought pursuant to its holding in Bivens. While the Court held that plaintiffs’ detention policy claims could not proceed under Bivens, it did not decide whether Bivens provided a proper basis for plaintiffs’ prisoner abuse claim. Instead, noting that the question had not been fully developed by the parties before it, the Supreme Court remanded and directed the lower courts to determine the availability of a cause of action under Bivens. 137 S. Ct. at 1863, 1865. Accordingly, today, after multiple appeals to the Second Circuit and the Supreme Court of the United States, this case now hinges on a narrow legal question: whether a Bivens-type cause of action may properly be implied under the Fifth Amendment as the basis for plaintiffs’ prisoner abuse claim against former Warden Hasty—and, as discussed below, former MDC Captain LoPresti and Lieutenant Cuciti, the only other
3

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remaining MDC Official defendants—for their deliberate indifference to the abuse of plaintiffs by MDC guards. Id. at 1864-65.
The Supreme Court remanded this question to the Second Circuit, which in turn issued a mandate directing this Court to “consider what remains of all claims in light of the Ziglar decision,” and “emphasiz[ing] in particular that the Supreme Court left open the question as to whether a Bivens claim may be brought under the Fifth Amendment against the warden of the Metropolitan Detention Center.” Mandate at 2, Docket Entry 799.
As a result, there is now pending before this Court Warden Hasty’s renewed motion to dismiss in light of the Supreme Court’s decision in Ziglar. Defendant’s Memorandum in Support (“Def.’s Mem.”), Docket Entry 808. Additionally, although defendants LoPresti and Cuciti did not appeal to the Second Circuit, see Turkmen, 789 F.3d at 224 n.2, plaintiffs’ claims against those defendants are also before the Court. Plaintiffs acknowledge that the legal viability of their claims against defendants LoPresti and Cuciti depends upon this Court’s decision with respect to defendant Hasty’s motion. See Plaintiffs’ Memorandum of Law in Support of Bivens Liability (“Pls.’ Mem.”) at 9, Docket Entry 808-7 (“Plaintiffs accept that the Court’s determination of the scope of Bivens liability will apply to their claims against the non-appealing Defendants—LoPresti and Cuciti—as well.”).
Chief United States District Judge Dora L. Irizarry has referred defendant Hasty’s motion to me to issue a Report and Recommendation. Order dated January 22, 2018. I heard oral argument on the motion on March 15, 2018. Transcript of Oral Argument (“Tr.”), Docket Entry 829. The parties then submitted supplemental authorities for the Court’s review. Docket Entries 830-833. Having considered the Supreme Court’s decision in Ziglar and the arguments presented by the parties, and for the reasons stated below, I respectfully recommend that
4

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defendant Hasty’s motion be granted, and that plaintiffs’ claims against the remaining defendants be dismissed.
BACKGROUND I. From Bivens to Ziglar
In Bivens, decided in 1971, the Supreme Court recognized a damages remedy for violations of the Fourth Amendment’s prohibition on unreasonable searches and seizures by federal law enforcement officers. Bivens, 403 U.S. at 391-97. For the Bivens Court, implying a cause of action for violations of the Fourth Amendment was simply a natural extension of its view that a Court should ensure that every violation of a federally protected right has a remedy. Ziglar, 137 S. Ct. at 1855.
After Bivens, the Court held that a plaintiff could assert an implied cause of action for damages directly under the Constitution in only two other cases: Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980). Ziglar, 137 S. Ct. at 1854-55. Of particular relevance here is Carlson, where the Court recognized a Bivens-type action brought under the Eighth Amendment.2 Carlson, 446 U.S. at 18-23. In Carlson, the plaintiff sought damages on behalf of her deceased son, a federal inmate. Id. at 16. The plaintiff alleged that federal officials’ deliberate indifference to her son’s need for medical care for his asthma led to his death. Id. at 16 n.1. These allegations were considered sufficient under Supreme Court precedent to state an Eighth Amendment violation. Id. at 17-18, 17 n.3; see also Estelle v. Gamble, 429 U.S. 97 (1976). In Carlson, the Court examined whether there were either “special factors” counseling hesitation or alternative remedies that would preclude extending Bivens to the plaintiff’s Eighth Amendment deliberate indifference claim. Carlson, 446 U.S. at 18-19.
2 Davis v. Passman involved a claim of employment discrimination brought by an administrative assistant to a Congressman who contended she was fired because she was a woman. Ziglar, 137 S. Ct. at 1854.
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Finding neither, the Court extended Bivens and implied a cause of action for damages. Id. at 18-23. As noted above, it has not done so again in the nearly forty years since Carlson was decided.
Since Carlson, in fact, the Court has altered its perspective on implied rights of action under the Constitution, and noted that its “recent precedents cast doubt on the authority of courts to extend or create private causes of action.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018). In Ziglar, the Supreme Court acknowledged the marked change in its approach to implying causes of action:
In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now. During this “ancien regime,” the Court assumed it to be a proper judicial function to provide such remedies as are necessary to make effective a statute’s purpose.
* * * Later, the arguments for recognizing implied causes of action for damages began to lose their force.
* * * Given the notable change in the Court’s approach to recognizing implied causes of action . . . the Court has made clear that expanding the Bivens remedy is now a “disfavored” judicial activity. 137 S. Ct. at 1855, 1857 (citations and internal quotation marks omitted). The Court in Ziglar went so far as to say that, were Bivens, Davis, and Carlson being decided today, the analysis— and, presumably, the outcome—might be different. Id. at 1856. II. Determining Whether to Extend Bivens After Ziglar The Supreme Court emphasized in Ziglar that the central inquiry when faced with a potential expansion of Bivens is “‘who should decide’ whether to provide for a damages remedy, Congress or the courts,” and that the answer to that question “most often will be Congress.” Id. at 1857 (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)). “[S]eparation-of-powers principles are or should be central to the analysis.” Id.
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Ziglar instructs that the analysis of whether a Bivens remedy is available proceeds in two steps. First, a court must determine whether the plaintiff’s claims are different from those asserted in previous Bivens cases, such that the case presents a “new Bivens context.” Id. at 1859-60. A case presents a “new context” if it is “different in a meaningful way from previous Bivens cases decided by [the Supreme Court].” Id. at 1859. The Court listed some relevant measures of difference, including the rank of the officers involved, the constitutional right asserted, the level of generality of the official action in question, the extent of the judicial guidance available to the officer in question, whether the officer was operating under specific statutory or other legal mandates, and whether there is a risk that the Judiciary would be interfering with the functioning of another branch of the government. Id. at 1860.
Second, if a case does present a “new Bivens context,” a court must then consider whether “there are ‘special factors counselling hesitation in the absence of affirmative action by Congress.’” Id. at 1857 (quoting Carlson, 446 U.S. at 18). The Supreme Court has not announced a definitive list of those “special factors” that “counsel[] hesitation.” Id. The Court has stressed, though, that the question to ask is “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1858. A “special factor” is one that “cause[s] a court to hesitate before answering that question in the affirmative.” Id.
In Ziglar, the Court did identify some criteria for considering whether hesitation is warranted. First, it noted that “the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide,” which entails examining the “burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when . . . the legal system [is] used to bring about the
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proper formulation and implementation of public policies.” Id. Second, some cases will arise “in a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere.” Id. It may also be that “feature[s] of [the] case—difficult to predict in advance—cause[] a court to pause before acting without express congressional authorization.” Id. The Court concluded this aspect of its discussion by noting that, “if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy[;]” to do otherwise would fail “to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.” Id.
Finally, when a plaintiff seeks to extend Bivens to a new context, a court should consider whether alternative remedies are already available. Id. The existence of an “alternative remedial structure . . . alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Id. III. The Ziglar Court’s Decision Regarding Warden Hasty and Plaintiffs’ “Prisoner
Abuse” Claim The first step in the analysis of plaintiffs’ prisoner abuse claim has already been taken. In
Ziglar, the Supreme Court held that, although the prisoner abuse claim has “significant parallels” to the claims asserted in Carlson, “this case does seek to extend Carlson to a new context.” Id. at 1864.
The Court went on to note that “[t]his case also has certain features that were not considered in the Court’s previous Bivens cases and that might discourage a court from authorizing a Bivens remedy.” Id. at 1865. First, the Court suggested that plaintiffs may have had access to alternative remedies, such as a writ of habeas corpus or an injunction, that would
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preclude extending Bivens. Id. Second, noting that “legislative action suggesting that Congress does not want a damages remedy” is a special factor counseling hesitation, the Court pointed out that, since Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995 (“PLRA”), “which made comprehensive changes to the way prisoner abuse claims must be brought in federal court,” but without “provid[ing] for a standalone damages remedy against federal jailers.” Id. In short, the Court concluded that the differences between this case and Carlson “are at the very least meaningful ones.” Id. Reasoning that “even a modest extension is still an extension,” the Court vacated the Second Circuit’s decision that plaintiffs’ prisoner abuse claim could proceed, and remanded the case so that a “special factors” analysis could be conducted. Id. at 1864-65.
DISCUSSION As noted above, the motion now pending before the Court is defendant Hasty’s renewed motion to dismiss pursuant to Rule 12(b)(6). When deciding a motion brought under Rule 12(b)(6), a court may consider “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, . . . and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” Abiuso v. Donahoe, 2015 WL 3487130, at *3 (E.D.N.Y. June 3, 2015) (quoting In re Merrill Lynch & Co., 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003)). Here, the complaint incorporates by reference two reports: the Office of the Inspector General (“OIG”) report entitled “The September 11 Detainees: A Review of the Treatment of Aliens held on Immigration Charges in Connection with the Investigation of the
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September 11 Attacks” (“OIG Rep.”), FAC ¶ 3 n.1, and a supplemental report entitled “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York” (“Supp. OIG Rep.”). Id. ¶ 5 n.2. Therefore, the facts contained in both reports may be considered when deciding Hasty’s motion. The facts alleged in the complaint, moreover, must be taken as true at this stage of the case. Ziglar, 137 S. Ct. at 1852.
The gravamen of plaintiffs’ claim against Hasty is that he was deliberately indifferent to the abuse of plaintiffs by MDC guards. Ziglar, 137 S. Ct. at 1864; FAC ¶¶ 77-78; 106-10. The Supreme Court has already held that “the prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation if a Bivens remedy is to be implied.” Ziglar, 137 S. Ct. at 1864 (emphasis added). Moreover, as noted above, the Court has also already held that plaintiffs’ prisoner abuse claim seeks to extend Bivens and Carlson to a new context. Accordingly, the only remaining issue is whether there are “special factors counselling hesitation” or alternative remedies that would preclude the extension of Bivens required for plaintiffs’ claims to proceed.
Before considering whether special factors or alternative remedies are present here, I note that the parties agree that the strength and number of applicable special factors need not be greater before hesitation is warranted in cases involving so-called “modest” extensions as opposed to more substantial ones. In other words, the magnitude of a potential extension of Bivens does not affect the “special factors analysis.” See Letter from Clifton Elgarten dated March 13, 2018 (“Elgarten Letter”) at 1-2, Docket Entry 826; Letter from Rachel Meeropol dated March 13, 2018 (“Meeropol Letter”) at 1-2, Docket Entry 827. Accordingly, although the
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extension here may be a modest one, that has no direct bearing on the analysis of special factors and alternative remedies. I. Warden Hasty
A. Special Factors Hasty argues that this case presents “special factors” that counsel hesitation before
extending Bivens. The special factors identified by Hasty include Congress’s failure to enact a law providing a direct cause of action under the Constitution and the disruption to BOP policies and practices that a direct cause of action for money damages would cause. Def.’s Mem. at 14. Having considered these factors, I reject the contentions of both parties that Congress has either endorsed, rejected, or is neutral towards Bivens and its progeny. I further find, though, that this case presents a “special factor” counseling hesitation: that extending Bivens might negatively impact BOP’s investigatory procedures and policies, and that Congress is as a result in the best position to weigh the costs and benefits of allowing a cause of action for damages to proceed.
Congress’s Silence is Ambiguous Hasty argues that Congress’s failure to codify Bivens and enact a damages remedy for violations of constitutional rights is a special factor suggesting that the Court should hesitate before implying a cause of action. Def.’s Mem. at 19; see also Ziglar, 137 S. Ct. at 1865 (“[L]egislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation.”). Hasty offers three examples of congressional silence that he contends counsel hesitation. First, Hasty points to Congress’s decision to include in the USA Patriot Act a requirement that OIG investigate potential constitutional violations by BOP officials and provide semiannual reports to Congress. Def.’s Mem. at 19-20; see also USA Patriot Act, Pub. L. No.
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107-56, § 1001, 115 Stat. 272, 391 (2001).3 Hasty argues that Congress, while considering this provision, could have provided for a private right of action against federal officials for deprivations of constitutional rights, but chose not to do so. Def.’s Mem. at 20. In fact, OIG continues to report to Congress, and Congress has still not enacted legislation providing for a Bivens-like cause of action. See Tr. 8-11.
Second, Hasty argues that Congress, as a result of the original and supplemental OIG reports, was aware of the allegations of abuse at issue in this very case, yet chose not to create a damages remedy. Def.’s Mem. at 20; see also Ziglar, 137 S. Ct. at 1862 (“[A]t Congress’ behest, [OIG] compiled a 300-page report documenting the conditions in the MDC in great detail.”). The Court in Ziglar referred to Congress’s failure to provide a damages remedy in the wake of the OIG Report as one reason for dismissing plaintiffs’ detention policy claims. Ziglar, 137 S. Ct. at 1862.
Plaintiffs counter by arguing that Congress’s silence in the face of these reports in fact suggests its tacit approval of extending Bivens and allowing plaintiffs to proceed with their claims. Plaintiffs point out that the OIG reports specifically refer to this litigation, and that Congress was therefore aware of plaintiffs’ pending prisoner abuse claim. Plaintiffs’ Response Memorandum (“Pls.’ Reply”) at 12, Docket Entry 808-9; see also OIG Rep. at 2-3, 3 n.4; 92 (referring to this lawsuit and noting that the litigation is pending). Because of the ongoing litigation, plaintiffs contend, Congress had no reason to step in and provide a damages remedy. Pls.’ Reply at 12. Moreover, although made aware of plaintiffs’ pending case and its reliance on
3 The statute cited in the text provides that “[t]he Inspector General of the Department of Justice shall designate one official who shall – (1) review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice; . . . and (3) submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report on the implementation of this subsection and detailing any abuses described in paragraph (1).”
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the availability of an implied Bivens-type remedy, Congress passed no legislation narrowing the scope of Bivens or the authority of courts to extend Bivens to new contexts.
Finally, Hasty, echoing the Court in Ziglar, argues that Congress “had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs” when it passed the PLRA, fifteen years after Carlson. Def.’s Mem. at 21 (quoting Ziglar, 137 S. Ct. at 1865). Though Hasty concedes that the PLRA does not apply to detainees who, like plaintiffs, are held as undocumented aliens, he argues that Congress, by passing the PLRA without enacting a corresponding Bivens-type cause of action for prisoner abuse claims, has indicated its reluctance to extend Bivens to new contexts. Id.; see also 42 U.S.C. § 1997e(h) (defining “prisoner” for the purposes of the PLRA as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program”).
Plaintiffs argue in response that, because the PLRA does not apply to immigration detainees, Congress’s silence with respect to Bivens when it passed the PLRA has no bearing on whether Bivens should be expanded to allow plaintiffs’ prisoner abuse claim. Pls.’ Mem. at 18. Plaintiffs note as well that the Court in Ziglar did not affirmatively conclude that Congress’s silence suggested its reluctance to expand Bivens; plaintiffs correctly point out that the Court merely stated that “[i]t could be argued” from the fact that the PLRA “does not provide for a standalone damages remedy against federal jailers” that “Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.” Ziglar, 137 S. Ct. at 1865.
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Furthermore, and in this Court’s view more persuasively, plaintiffs argue that, when Congress passed the PLRA, it presumed the existence of a Bivens cause of action for prisoner abuse. Though at the time the PLRA was passed the Supreme Court had recognized a Bivens cause of action for prisoners only in Carlson, many Circuit courts had recognized a variety of prisoner and detainee abuse claims under Bivens. Pls.’ Mem. at 20 (listing cases in which Bivens was recognized as a vehicle for asserting prisoner and detainee abuse claims). Yet, as plaintiffs point out, the PLRA merely imposed an exhaustion requirement on prison condition lawsuits brought under federal law; the statute in no way otherwise limits the scope of Bivens-type claims. See 42 U.S.C. § 1997e.
Finally, plaintiffs argue that Congress signaled its approval of Bivens when it amended the Federal Tort Claims Act (“FTCA”) by passing the Westfall Act in 1988. Meeropol Letter at 3-4. The Westfall Act provides that a claim against the United States under the FTCA is the exclusive civil remedy for negligent or wrongful acts or omissions by employees of the federal government. 28 U.S.C. § 2679(b)(1). The Act also provides, however, that this limitation does not apply to “a civil action against an employee of the Government which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). Arguably, by enacting legislation specifically discussing civil actions against government employees for violations of constitutional rights—but declining to eliminate or narrow them—Congress implicitly approved of such actions. See Meeropol Letter at 3; see also Ziglar, 137 S. Ct. at 1880-81 (Breyer, J., dissenting) (arguing that the exception for lawsuits claiming constitutional violations in the Westfall Act makes it clear that Congress views the FTCA and Bivens as providing “parallel, complementary causes of action” (quoting Carlson, 446 U.S. at 20)); James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication,
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98 Geo. L.J. 117, 135-36 (2009) (arguing that “[in] the Westfall Act, Congress again chose to retain the Bivens action . . . [and that] [b]y accepting Bivens and making it the exclusive mode for vindicating constitutional rights, Congress has joined the Court in recognizing the importance of the Bivens remedy in our scheme of governmental accountability law”).
The problem with plaintiffs’ Westfall Act argument is that it failed to persuade the Ziglar majority. Plaintiffs candidly acknowledge that they argued before the Supreme Court that the Westfall Act essentially ratified Bivens, but that the Ziglar majority did not accept their argument. Meeropol Letter at 3. In his dissent, Justice Breyer likewise invoked passage of the Westfall Act as an indication of Congress’s “accept[ance of] Bivens actions as part of the law.” Ziglar, 137 S. Ct. at 1880 (Breyer, J., dissenting). The Ziglar majority, though, while making explicit reference to the Westfall Act, nevertheless held, largely on separation-of-powers grounds, that extending Bivens to new contexts is now a “disfavored” judicial activity.” Id. at 1856-57 (majority opinion). In reaching that conclusion, the Court observed that Congress has failed to enact a Bivens-like damages remedy, and that Congress’s “silence is telling.” Id. at 1862. Clearly, then, the majority in Ziglar—though plainly aware of plaintiffs’ and Justice Breyer’s arguments to the contrary—rejected the notion that, by passing the Westfall Act, Congress suggested its support for Bivens actions.
The Ziglar Court relied on Congress’s silence, among other things, to hold that plaintiffs’ detention policy claims could not proceed under Bivens and should be dismissed. This holding at least arguably suggests the same result here; Congress was just as silent with respect to plaintiffs’ prisoner abuse claim as it was with respect to their detention policy claims. However, in dismissing plaintiffs’ detention policy claims in Ziglar, the Court pointed out that Congress’s “silence is notable because it is likely that high-level policies will attract the attention of
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Congress.” Id. Because plaintiffs’ prisoner abuse claim does not involve “high-level policies,” this aspect of Ziglar’s holding is not controlling here.
Inferring intention from inaction necessarily involves speculation. The degree of speculation involved increases greatly when an inference about intent is based upon the inaction of a legislative body with hundreds of members, each of whom may have his or her own reasons for not acting. Having considered the parties’ arguments, I conclude that the evidence of congressional intent here is too ambiguous to provide meaningful support for either side’s position. See Wilkie v. Robbins, 551 U.S. 537, 554 (2007) (“It would be hard to infer that Congress expected the Judiciary to stay its Bivens hand, but equally hard to extract any clear lesson that Bivens ought to spawn a new claim.”). I therefore decline to infer what views Congress may have with respect to extending Bivens from its failure to pass a law that either provides or precludes a Bivens-type remedy for violations of constitutional rights.
The Potential Impact on BOP’s Investigatory Procedures and Policies is a Special Factor Counseling Hesitation Hasty argues that a second factor that should counsel hesitation is the impact that recognizing a Bivens cause of action in this case would have on BOP’s procedures for investigating and addressing prisoner and detainee abuse claims. See Ziglar, 137 S. Ct. at 1858; Def.’s Mem. at 15. More specifically, Hasty points to procedures in place both before and after the September 11 terrorist attacks that purposely limited a warden’s role in investigating allegations of abuse by correctional officers. Def.’s Mem. at 15. See generally Def.’s Mem., Ex. C, PS 1210.22, Office of Internal Affairs (“OIA”) Memorandum dated October 1, 2001 (“Ex. C.”), Docket Entry 808-4; Def.’s Mem., Ex. D, PS 1210.17, OIA Memorandum dated August 4, 1997 (“Ex. D.”), Docket Entry 808-5.
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Under the procedures cited by Hasty, physical abuse of a detainee by a correctional officer is a “significant incident” (1997 Memorandum) or Classification 1 case (2001 Memorandum), and threatening assault is a Classification 2 case (2001 Memorandum). Ex. C § 7.a-7.b; Ex. D § 6. Under the regulations in effect in 1997, a warden who learned of an allegation of physical abuse was required to make a report to OIA, which would then “advise how to proceed.” Ex. D § 6.a. Incidents deemed “significant” were referred to OIG for review, and the warden would be precluded from taking further action if OIG accepted the case. Id. § 6.f.
New procedures announced on October 1, 2001 require wardens to notify OIA of Classification 1 and 2 cases within twenty-four hours of learning about them. Ex. C § 8.b.1. These procedures also prohibit wardens or others under their supervision from interviewing or questioning the subject of allegations without prior approval from OIG and OIA. Id. § 8.b.3. The procedures designate OIA as responsible for overseeing all staff investigations. Id. § 9. When presented with allegations in Classification 1 or 2, OIA is required to refer the allegations to OIG for review and may refer criminal matters, explicitly including allegations of physical abuse, to the Civil Rights Division of the Department of Justice. Id. § 8.c.
The Bureau of Prisons also directed that certain practices be implemented specifically with respect to the September 11 detainees. Def.’s Mem. at 18. Shortly after the attacks, BOP directed that video cameras be installed in the cells of each September 11 detainee. Supp. OIG Rep. at 39. At least at the MDC, the movements of the September 11 detainees were also videotaped beginning on October 5, 2001. Id. As a result of these measures, “incidents and allegations of physical and verbal abuse significantly decreased.” Id. at 45 ¶ 5. Finally, as Hasty
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points out, after October 2001, OIG investigators were present at MDC looking into allegations of abuse. OIG Rep. at 144.
It is reasonable to think that imposing personal liability on a warden who is indifferent to abuse by correctional officers under his or her command might impede, or at least affect, the efficacy of these practices and procedures. For example, a warden subject to personal liability for the acts of correctional officers might fail to report those acts to OIA, or decide to do so only after conducting the sort of preliminary inquiry that might influence how an investigation unfolds and that BOP procedures—no doubt for that reason—explicitly prohibit. Similarly, a warden facing the possibility of personal liability might be less likely to enforce procedures requiring video recording of detainee movements, or might neglect to retain and catalogue recordings that memorialize abuse.
The costs to the government of imposing personal liability on wardens for deliberate indifference go beyond possible adverse effects on investigations of correctional officer abuse of detainees. “Claims against federal officials often create substantial costs, in the form of defense and indemnification.” Ziglar, 137 S. Ct. at 1856. Moreover, the time and attention required to participate in a litigation as a party may distract supervisory officials, such as wardens, from their management responsibilities. Id. Finally, the possibility of being called to account for failing to monitor and control the actions of officers under their command might lead wardens to adopt supervisory practices and procedures they might otherwise not.
The threshold for concluding that a factor counsels hesitation “is remarkably low. . . . Hesitation is a pause, not a full stop, or an abstention; and to counsel is not to require. ‘Hesitation’ is ‘counseled’ whenever thoughtful discretion would pause even to consider.” Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009). Measured against this “remarkably low” bar, the
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concerns discussed above—and, in particular, the question of who should decide how those concerns should be balanced against affording detainees a cause of action against a supervisory official who is deliberately indifferent to abuse—rises to the level of a special factor counseling hesitation.
B. Alternative Remedies The Supreme Court has held that “the existence of alternative remedies usually precludes
a court from authorizing a Bivens action.” Ziglar, 137 S. Ct. at 1858, 1865. Alternative remedies were available to plaintiffs in this case, and dismissal is accordingly warranted on this ground as well.
The FTCA Provides a Sufficient Alternative Remedy It is clear that plaintiffs could have asserted their claims for abuse pursuant to the Federal Torts Claims Act and, if they were successful, recovered compensation. Indeed, the Third Amended Complaint in this very case included claims based upon the conduct of MDC officials, including Hasty, for assault and battery, sleep deprivation, and intentional infliction of emotional distress, all brought pursuant to the FTCA. Third Amended Complaint ¶¶ 426-40, Docket Entry 109.4 Five plaintiffs reached settlements with the United States on these FTCA claims. Letter from Rachel Meeropol dated November 16, 2009, Ex. A, Docket Entry 687-2 (stipulations settling the FTCA claims of five plaintiffs for amounts ranging from $181,250 to $356,250 per plaintiff). There does not appear to be any reason why the current plaintiffs could not have brought similar claims on their own behalf.5
4 Generally, the FTCA’s waiver of sovereign immunity does not apply to claims for assault and battery and certain other torts. 28 U.S.C. § 2680(h). This limitation does not apply, however, to law enforcement officers. Id. Bureau of Prisons officials are considered law enforcement officers for purposes of this statute. See, e.g., Ali v. Federal Bureau of Prisons, 552 U.S. 214, 218-224 (2008); Chapa v. United States Dep’t. of Justice, 339 F.3d 388, 390 (5th Cir. 2003); Lewis v. United States, 2005 WL 589583, at *3 (W.D.N.Y. Mar. 8, 2005). 5 The record is silent as to why the current plaintiffs did not bring claims under the FTCA. I note, however, that the FTCA requires that a plaintiff exhaust administrative remedies within two years after a claim accrues. See 28
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Plaintiffs’ argument that the FTCA should not be considered an alternative remedy precluding a Bivens-type claim rests on language from the holding in Carlson. The Supreme Court did state in Carlson that,
when Congress amended [the] FTCA in 1974 to create a cause of action against the United States for intentional torts committed by federal law enforcement officers, 28 U.S.C. § 2680(h), the congressional comments accompanying that amendment made it crystal clear that Congress views [the] FTCA and Bivens as parallel, complementary causes of action. Carlson, 446 U.S. at 19-20. The analysis in Carlson, though, cannot survive Ziglar. In Carlson, the Court held that a Bivens claim is precluded when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Carlson, 446 U.S. at 18-19 (emphasis in original). In contrast, Ziglar takes a far broader view of those alternative remedies that foreclose assertion of a claim under Bivens: [I]f Congress has created any alternative, existing process for protecting the injured party’s interest that itself may amount to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. Ziglar, 137 S. Ct. at 1858 (internal alterations and quotation marks omitted). Thus, while the absence of an explicit declaration by Congress that the FTCA is intended to be a substitute for Bivens may have been dispositive to the Court that decided Carlson, that absence is of little significance after Ziglar. No doubt this is among the reasons the Court in Ziglar declared that, “in light of the changes to the Court’s general approach to recognizing implied damages
U.S.C. §§ 2401, 2675. The exhaustion requirement is jurisdictional and cannot be waived. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
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remedies, it is possible that the analysis in the Court’s three Bivens cases might have been different if they were decided today.” Ziglar, 137 S. Ct. at 1856.
Since Ziglar, other courts have questioned the continued vitality of Carlson’s holding that FTCA and Bivens claims may proceed as parallel, complementary causes of action, and have declined to permit Bivens claims to proceed because the FTCA provides an adequate alternative remedy. See, e.g., Huckaby v. Bradley, 2018 WL 2002790, at *6 (D.N.J. Apr. 30, 2018) (finding that “the availability of a remedy against the United States on a claim of negligence under the FTCA, in light of Ziglar, is a factor weighing against . . . recognizing a Bivens remedy”), appeal filed, No. 18-2204 (3d Cir. June 1, 2018); Abdoulaye v. Cimaglia, 2018 WL 1890488, at *7 (S.D.N.Y. Mar. 30, 2018) (questioning whether the analysis of the FTCA as an alternative remedy in Carlson survives Ziglar and finding that “the existence of the FTCA as a potential remedy counsels hesitation in extending a Bivens remedy”); Free v. Peikar, 2018 WL 905388, at *5-6 (E.D. Cal. Feb. 15, 2018) (declining to extend Bivens to a First Amendment claim because the FTCA provides an adequate alternative remedy), report and recommendation adopted by 2018 WL 1569030 (E.D. Cal. Mar. 30, 2018); Morgan v. Shivers, 2018 WL 618451, at *5-6 (S.D.N.Y. Jan. 29, 2018) (declining to extend Bivens to pre-trial detainee’s Fifth Amendment excessive force and sexual assault claims because the FTCA provides an alternative remedy).
Plaintiffs have submitted a letter positing that the Ninth Circuit’s recent decision in Rodriguez v. Swartz, 2018 WL3733428 (9th Cir. Aug. 7, 2018), supports their contention that the FTCA does not preclude extensions of Bivens to new contexts. Pls.’ Letter Dated August 10, 2018, Docket Entry 833. Rodriguez involved a claim that a U.S. Border Patrol agent stationed on the American side of our border with Mexico fired between fourteen and thirty bullets across the border at a sixteen-year-old boy, striking the boy with about ten bullets and killing him. Id.
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at *1. As plaintiffs suggest, the majority in Rodriguez did opine that Congress did not intend for the FTCA, and in particular the Westfall Act, to preclude victims of constitutional torts from suing government employees who allegedly violated their constitutional rights. Id. at *11. The reasoning in Rodriguez is at least arguably dicta, though, because the majority first concluded that the FTCA was not an available alternative remedy because it “specifically provides that the United States cannot be sued for claims ‘arising in a foreign country.’” Id. (quoting 28 U.S.C. § 2680(k)). To the extent Rodriguez holds that the FTCA does not as a general matter provide an alternative remedy to a Bivens claim, I respectfully disagree with that holding for the reasons stated above.
Because plaintiffs could have brought their claims under the FTCA and been awarded damages for their injuries if they prevailed, Ziglar counsels that their Bivens claims should be dismissed.
Other Alternative Remedies Although I conclude that the availability of a remedy pursuant to the FTCA is sufficient to preclude plaintiffs’ Bivens claims, I note that plaintiffs might have invoked other remedies as well. For example, at least two courts have taken into account BOP’s administrative grievance process when concluding that alternative remedies preclude Bivens claims. Free, 2018 WL 905388, at *6; Gonzalez v. Hasty, 269 F. Supp. 3d 45, 60 (E.D.N.Y. 2017), appeal filed, No. 173790 (2d Cir. Nov. 21, 2017). Plaintiffs might also have sought injunctive or habeas relief. Indeed, the Supreme Court’s opinion in Ziglar suggests as much. 137 S. Ct. at 1865. Plaintiffs raise serious questions about whether the administrative grievance process, or the possibility of injunctive or habeas relief, provided them with sufficiently meaningful alternative remedies to warrant precluding their Bivens claims. Plaintiffs first argue that equitable relief, when compared to a Bivens claim, would not afford them “roughly similar
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compensation” for their injuries or provide defendants with “roughly similar incentives” to respect their constitutional rights. Pls.’ Mem. at 15; see Minneci v. Pollard, 565 U.S. 118, 130 (2012). But see Gonzalez, 269 F. Supp. 3d at 62 (noting that “there is no precedent suggesting that the unavailability of money is a factor that carries any weight in determining the expansion of a Bivens remedy. Rather, the emphasis is simply on the existence of an avenue to protect the right.”). Plaintiffs are plainly correct that an award of equitable relief would not provide them with monetary compensation for violations of their rights that had already occurred, and likely would not provide defendants with as strong an incentive to avoid violating constitutional rights as would money judgments entered against them personally.
Plaintiffs also argue that their conditions of confinement precluded them, as a practical matter, from filing a grievance or pursuing either injunctive or habeas relief. Pls.’ Mem. at 13. Plaintiffs allege that they were not provided with the handbooks that explain to detainees how to file an administrative complaint about mistreatment until long after they were taken into custody. FAC ¶ 140. Plaintiffs further contend that, until mid-October 2001, they were subjected to a “communications blackout,” which denied them social or legal visits or telephone calls. Id. ¶¶ 79-81. Plaintiffs further allege that MDC staff “repeatedly turned away any relative or lawyer who came to the MDC in search of a detainee by falsely stating that the detainee was not there.” Id. ¶ 81. Even after the blackout was lifted, plaintiffs’ ability to make legal and social calls was at best severely limited and, in reality, virtually nonexistent. Id. ¶¶ 83-85. As a result, plaintiffs argue, they were not able to seek an injunction until April 2002. By that time, plaintiffs had been released and their application for injunctive relief was moot. Pls.’ Mem. at 14.
Defendants dispute plaintiffs’ claim of inability to seek relief prior to April 2002, noting that a case based on allegations of abuse similar to those plaintiffs raise here was filed in
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December of 2001. Defendants’ Reply (“Def.’s Reply”) at 11-12, Docket Entry 808-8; see Complaint ¶¶ 14-18, Baloch v. Ashcroft, No. 01-cv-8515 (E.D.N.Y. Dec. 21, 2001), Docket Entry 1. The complaint in Baloch, though, largely corroborates plaintiffs’ claims, in that it alleges that Baloch was unable to communicate with an attorney, despite his efforts to do so, from September 22, 2001, the day he was detained, until some time in November, 2001. Complaint ¶¶ 12-15, Baloch v. Ashcroft, No. 01-cv-8515 (E.D.N.Y. Dec. 21, 2001). Baloch’s complaint, moreover, was not filed until December 21, 2001, by which time Baloch had been detained for three months, and was ultimately dismissed as moot before the Court could decide whether relief was warranted. Order Dismissing Case as Moot, Baloch v. Ashcroft, No. 01-cv8515 (E.D.N.Y. June 27, 2002), Docket Entry 4. Finally, the motion pending before the Court is one to dismiss, and the factual allegations of plaintiffs’ complaint must therefore be accepted as true for purposes of deciding the motion.
Because I conclude that the FTCA provided plaintiffs with an alternative remedy precluding their Bivens claims, I need not decide whether injunctive or habeas relief, or an administrative grievance, did as well. Nevertheless, the District Court may not agree that the FTCA provides an alternative remedy. I therefore note my conclusion that, for the reasons stated above and in light of the particular facts of this case, neither an administrative grievance, a motion for injunctive relief, nor a petition for a writ of habeas corpus were sufficiently available to plaintiffs to provide them with alternative remedies warranting preclusion of their Bivens claims.
C. District Court Decisions Rendered After Ziglar Plaintiffs contend that Ziglar does not restrict Bivens claims as narrowly as the discussion
above suggests, and should not be read to preclude their abuse claim from proceeding. As support, plaintiffs point to three post-Ziglar cases that permitted Bivens claims arising in new
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contexts to go forward. See generally Cuevas v. United States, 2018 WL 1399910 (D. Colo. Mar. 19, 2018), appeal filed No. 18-1219 (10th Cir. May 18, 2018); Leibelson v. Collins, 2017 WL 6614102 (S.D. W. Va. Dec. 27, 2017), appeal filed sub nom. Leibelson v. Cook No. 18-1202 (4th Cir. Feb. 23, 2018); Linlor v. Polson, 263 F. Supp. 3d 613 (E.D. Va. 2017).
The cases cited by plaintiffs are distinguishable because they involve relatively low-level individual officers and do not implicate or touch upon prison policy. See Cuevas, 2018 WL 1399910, at *1-4 (allowing an inmate’s Bivens claim to proceed against BOP correctional officers who allegedly relayed sensitive information to other inmates with the intention that they retaliate violently against the plaintiff, after finding that “[t]he challenged actions are ordinary incidences of day-to-day prison operations, for which there is law clearly establishing that the practice is unconstitutional, such that there is no risk that this litigation will tread on complex matters of BOP policymaking”); Leibelson, 2017 WL 6614102, at *12-13 (denying summary judgment and permitting a Bivens claim to proceed against a BOP captain for alleged indifference to the ability of a transgender inmate plaintiff to eat in the prison cafeteria without risk of assault); Linlor, 263 F. Supp. 3d at 625 (allowing a Bivens claim to proceed against a TSA officer for allegedly using excessive force because the case “present[ed] a relatively simple, discrete question of whether a federal officer applied excessive force during a Fourth Amendment search”).
The holdings in two of the cases cited by plaintiffs are distinguishable on other grounds as well. In Cuevas, the Court expressly declined to consider whether the FTCA provided plaintiff with an alternative remedy because defendants did not argue that it did. Cuevas, 2018 WL 1399910, at *4 n.4. Similarly, while the Court in Leibelson permitted one of plaintiff’s Bivens claims to proceed, it dismissed several others, including one dismissed at least in part
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because plaintiff was simultaneously pursuing a cause of action under the FTCA based upon overlapping allegations. Leibelson, 2017 WL 6614102, at *11.
There are, moreover, several lower courts decisions dismissing Bivens claims in the wake of Ziglar on grounds comparable to those discussed in this Report. In Abdoulaye, for example, the Court declined to extend Bivens to a claim against a deputy U.S. Marshal who allegedly pushed a wheelchair-bound detainee into a wall, exacerbating the detainee’s back injury. Abdoulaye, 2018 WL 1890488, at *1, *7. The Court held that the availability of an alternative remedy under the FTCA, and the decision of Congress not to include a stand-alone remedy for damages in the PLRA, counseled hesitation and warranted dismissal of the plaintiff’s Bivens claim. Id. at *7; see also Free, 2018 WL 905388, at *6 (declining to extend Bivens to an inmate’s First Amendment retaliation claim because the FTCA, BOP’s administrative grievance process, and habeas corpus are adequate alternative remedies and because congressional silence counsels hesitation); Morgan, 2018 WL 618451, at *6-7 (declining to extend Bivens to an inmate’s claim of abusive conduct in connection with a search of his rectum because the FTCA provides an adequate alternative remedy, because Congress failed to establish a private right of action even when legislating in the area of prisoners’ rights, and because “balanc[ing] the challenges prison administrators and officers face in maintaining prison security against the expansion of [a] private right of action for damages . . . is more appropriately suited for Congress, not the Judiciary”); Gonzalez, 269 F. Supp. 3d at 59-62, 65 (declining to extend Bivens to an inmate’s Fifth and Eighth Amendment claims with respect to his confinement in MDC’s ADMAX SHU because BOP’s administrative grievance process and habeas corpus provided adequate alternative remedies, and because Congress has not established a private right of action despite being active in the area of prisoners’ rights). These post-Ziglar cases suggest that courts
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are resistant to efforts to expand Bivens, even when considering claims that do not implicate high-level policy concerns, and particularly when those claims arise in prisons or jails. II. Defendants LoPresti and Cuciti
As noted above, plaintiffs “accept that the Court’s determination of the scope of Bivens liability will apply to their claims against the non-appealing defendants—LoPresti and Cuciti— as well.” Pls.’ Mem. at 9.
Insofar as is relevant here, LoPresti was the Captain of the MDC and was responsible for supervising all MDC correctional officers, including those assigned to the ADMAX SHU. FAC ¶ 27. Plaintiffs allege that LoPresti was frequently present in the ADMAX SHU, reviewed logs, and received complaints from plaintiffs and other detainees about ongoing abuse and conditions on the unit, yet did nothing to stop the abuse or address the misconduct of officers under his supervision. Id. Cuciti was a First Lieutenant at the MDC, where he was responsible for processing detainees, escorting them, and overseeing their legal and social visits. Id. ¶ 28. Like LoPresti, Cuciti made rounds in the ADMAX SHU, reviewed logs, and received complaints from plaintiffs and other detainees about ongoing abuse and adverse conditions on the unit, but did nothing to rectify the abuse of which he was aware. Id. In short, plaintiffs claim that LoPresti and Cuciti were deliberately indifferent to the abuse of the plaintiffs by other MDC officers. Plaintiffs’ Supplemental Brief in Support of Bivens Liability (“Pls.’ Supp.”) at 4-5, Docket Entry 823.
LoPresti and Cuciti adopt Hasty’s arguments. Defendant LoPresti’s Memorandum in Support of the Motion to Dismiss (“LoPresti Mem.”) at 2, Docket Entry 818.6 They argue that,
6 Counsel for LoPresti submitted the memorandum cited in the text on behalf of defendants LoPresti and Cuciti, subject to obtaining authorization to appear on Cuciti’s behalf. LoPresti Mem. at 2 n.1. Counsel subsequently filed a notice of appearance as attorney for defendant Cuciti. Docket Entry 821.
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even though LoPresti and Cuciti held ranks lower than Warden, plaintiffs’ allegations against

them are similar to those made against Warden Hasty. Id. at 4. LoPresti and Cuciti contend that,

while they were closer in rank to the line officers who are alleged to have abused plaintiffs, they

did not themselves commit the acts of abuse that underlie plaintiffs’ claims. Id. at 5.

The discussion above with respect to the availability of the FTCA as an alternative

remedy forecloses plaintiffs’ Bivens claims against LoPresti and Cuciti. Moreover, the threshold

for finding a special factor that counsels hesitation is so low that—while the result is less clear

with respect to LoPresti and Cuciti than it is with respect to Hasty—I conclude that the impact on

BOP’s investigatory procedures and policies is such a factor. I accordingly recommend that

plaintiffs’ Bivens claims against defendants LoPresti and Cuciti, like those against defendant

Hasty, be dismissed.

CONCLUSION

The Supreme Court in Ziglar confined Bivens to an extremely narrow space. That space

is too narrow to accommodate plaintiffs’ remaining abuse claim. Therefore, and for the reasons

stated above, I respectfully recommend that plaintiffs’ remaining claims be dismissed.

Any objections to the recommendations made in this Report must be submitted within

fourteen days after filing of the Report and, in any event, no later than August 27, 2018. See 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive the

right to appeal the District Court’s order. See Small v. Sec’y of Health & Human Servs., 892

F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten-day limit).

Brooklyn, New York August 13, 2018

/s/ Steven M. Gold United States Magistrate Judge

U:\#VAR 2017-2018\Turkmen V. Hasty 02-Cv-2307\Turkmen_V_Hasty_02_CV_2307_FINAL.V2.Docx
28

 </s> 137 S.Ct. 1843 (2017)
James W. ZIGLAR, Petitioner v.
Ahmer Iqbal ABBASI, et al. John D. Ashcroft, Former Attorney General, et al., Petitioners
v. Ahmer Iqbal Abbasi, et al. Dennis Hasty, et al., Petitioners
v. Ahmer Iqbal Abbasi, et al.
Nos. 15-1358, 15-1359, 15-1363.
Supreme Court of United States.
Argued January 18, 2017. Decided June 19, 2017.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Ian H. Gershengorn, Acting Solicitor General, for Petitioners in Nos. 15-1358 and 15-1359.
Jeffrey A. Lamken, Washington, DC, for Petitioners in No. 15-1363.
Rachel Meeropol, New York, NY, for Respondents.
Clifton S. Elgarten, Shari Ross Lahlou, Kate M. Growley, Crowell & Moring LLP, Washington, DC, for Dennis Hasty.
Jeffrey A. Lamken, Michael G. Pattillo, Jr., Eric R. Nitz, James A. Barta, Molo-Lamken LLP, Washington, DC, Britt Hamilton, Sara E. Margolis, MoloLamken LLP, New York, NY, Debra L. Roth, Julia H. Perkins, Shaw Bransford & Roth, Washington, DC, for James Sherman.
Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Douglas N. Letter, Barbara L. Herwig, H. Thomas Byron III, Michael Shih, Attorneys, Department of Justice, Washington, DC, for Petitioners John D. Ashcroft, et al.

William Alden McDaniel, Jr., Ballard Spahr LLP, Baltimore, MD, for Petitioner James W. Ziglar.
Nancy L. Kestenbaum, Joanne Sum-Ping, Jennifer L. Robbins, Matthew Q. Verdin, Covington & Burling LLP, New York, NY, David M. Zionts, Covington & Burling LLP, Washington, DC, Rachel A. Meeropol, Michael Winger, Baher A. Azmy, Shayana Kadidal, Center for Constitutional Rights, Alexander A. Reinert, New York, NY, for Respondents.
1847*1847 Syllabus[*]
In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facility's warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional violations under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, alleging that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U.S.C. § 1985(3), which forbids certain conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit affirmed in most respects as to the Wardens but reversed as to the Executive Officials, reinstating respondents' claims.
Held: The judgment is reversed in part and vacated and remanded in part.
789 F.3d 218, reversed in part and vacated and remanded in part.
1848*1848 Justice KENNEDY delivered the opinion of the Court, except as to Part IV-B, concluding:
1. The limited reach of the Bivens action informs the decision whether an implied damages remedy should be recognized here. Pp. 1854-1859.
(a) In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages

action to compensate persons injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amendment genderdiscrimination case, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15. These are the only cases in which the Court has approved of an implied damages remedy under the Constitution itself. Pp. 1854 — 1855.
(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to "provide such remedies as are necessary to make effective" a statute's purpose. J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423. The Court has since adopted a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the "determinative" question is one of statutory intent. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517. If a statute does not evince Congress' intent "to create the private right of action asserted," Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well-settled law in its own context, but expanding the Bivensremedy is now considered a "disfavored" judicial activity. Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868.
When a party seeks to assert an implied cause of action under the Constitution, separationof-powers principles should be central to the analysis. The question is whether Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct. 2404, 76 L.Ed.2d 648. Most often it will be Congress, for Bivens will not be extended to a new context if there are "`special factors counselling hesitation in the absence of affirmative action by Congress.'" Carlson, supra, at 18, 100 S.Ct. 1468. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary's power to infer a new Bivens cause of action. Pp. 1855-1859.
2. Considering the relevant special factors here, a Bivens-type remedy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These "detention policy claims" include the allegations that petitioners violated respondents' due process and equal protection rights by holding them in restrictive conditions 1849*1849 of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 1858-1864.
(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivenscases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the

official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents' detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 1859-1860.
(b) The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.
With regard to the Executive Officials, a Bivens action is not "a proper vehicle for altering an entity's policy," Correctional Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676, 129 S.Ct. 1937. Even an action confined to the Executive Officers' own discrete conduct would call into question the formulation and implementation of a highlevel executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v. United States Dist. Court for D. C., 542 U.S. 367, 382, 124 S.Ct. 2576, 159 L.Ed.2d 459. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U.S. 681, 701, 117 S.Ct. 1636, 137 L.Ed.2d 945.
Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government's response to the September 11 attacks, they necessarily require an inquiry into national-security issues. National-security policy, however, is the prerogative of Congress and the President, and courts are "reluctant to intrude upon" that authority absent congressional authorization. Department of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918. Thus, Congress' failure to provide a damages remedy might be more than mere oversight, and its silence might be more than "inadvertent." Schweiker v. Chilicky,487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend "the kind of remedies [sought by] respondents," id., at 426, 108 S.Ct. 2460 but has not done so. Respondents also may have had available "`other alternative forms of judicial relief,'" Minneci v. Pollard, 565 U.S. 118, 124, 132 S.Ct. 617, 181 L.Ed.2d 606,including injunctions and habeas petitions.
The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred 1850*1850 in allowing respondents' detention policy claims to proceed under Bivens. Pp. 1860-1864.
3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents' prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels

to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitutional right is different here: Carlsonwas predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judicial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative remedies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court's expressed caution about extending the Bivens remedy, this context must be regarded as a new one. Pp. 1863 — 1867.
4. Petitioners are entitled to qualified immunity with respect to respondents' claims under 42 U.S.C. § 1985(3). Pp. 1865-1869.
(a) Assuming that respondents' allegations are true and well pleaded, the question is whether a reasonable officer in petitioners' position would have known the alleged conduct was an unlawful conspiracy. The qualified-immunity inquiry turns on the "objective legal reasonableness" of the official's acts, Harlow v. Fitzgerald,457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396, "assessed in light of the legal rules that were `clearly established' at the time [the action] was taken," Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523. If it would have been clear to a reasonable officer that the alleged conduct "was unlawful in the situation he confronted," Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is entitled to qualified immunity. Pp. 1865 — 1867.
(b) Here, reasonable officials in petitioners' positions would not have known with sufficient certainty that § 1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clearly established law on the issue whether agents of the same executive department are distinct enough to "conspire" with one another within the meaning of 42 U.S.C. § 1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach consensus on department policies, so there is a reasonable argument that § 1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to "conspire" in these kinds of situations is sufficiently open that the officials in this suit would not have known that § 1985(3) applied to their discussions and actions. It follows that reasonable officers in petitioners' positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 18671869.
1851*1851 KENNEDY, J., delivered the opinion of the Court with respect to Parts I, II, III, IVA, and V, in which ROBERTS, C.J., and THOMAS and ALITO, JJ., joined, and an opinion with respect to Part IV-B, in which ROBERTS, C.J., and ALITO, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN, and GORSUCH, JJ., took no part in the consideration or decision of the cases.
Justice KENNEDY delivered the opinion of the Court, except as to Part IV-B.

After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court.
The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages 1852*1852 under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. § 1980, 42 U.S.C. § 1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.
The suit was commenced in the United States District Court for the Eastern District of New York. After this Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a fourth amended complaint was filed; and that is the complaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of interlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel — and a second unsigned dissent from the court's declining to rehear the suit en banc, joined by Judge Raggi and five other judges — the Court of Appeals ruled that the complaint was sufficient for the action to proceed against the named officials who are now before us. See Turkmen v. Hasty, 789 F.3d 218 (2015) (panel decision); Turkmen v. Hasty, 808 F.3d 197 (2015) (en banc decision).
The Court granted certiorari to consider these rulings. 580 U.S. ___ (2016). The officials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioners here. The former detainees who seek relief under the fourth amended complaint are the respondents. The various claims and theories advanced for recovery, and the grounds asserted for their dismissal as insufficient as a matter of law, will be addressed in turn.
I
Given the present procedural posture of the suit, the Court accepts as true the facts alleged in the complaint. See Iqbal, 556 U.S., at 678, 129 S.Ct. 1937.
A
In the weeks following the September 11, 2001, terrorist attacks — the worst in American history — the Federal Bureau of Investigation (FBI) received more than 96,000 tips from

members of the public. See id., at 667, 129 S.Ct. 1937. Some tips were based on wellgrounded suspicion of terrorist activity, but many others may have been based on fear of Arabs and Muslims. FBI agents "questioned more than 1,000 people with suspected links to the [September 11] attacks in particular or to terrorism in general." Ibid.
While investigating the tips — including the less substantiated ones — the FBI encountered many aliens who were present in this country without legal authorization. As a result, more than 700 individuals were arrested and detained on immigration charges. Ibid. If the FBI designated an alien as not being "of interest" to the investigation, then he or she was processed according to normal procedures. In other words the alien was treated just as if, for example, he or she had been arrested at the border after an illegal entry. If, however, the FBI designated an alien as "of interest" to the investigation, or if it had doubts about the proper designation in a particular case, the alien was detained subject to a "hold-untilcleared policy." The aliens were held without bail.
Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropolitan 1853*1853 Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing Unit (or Unit) of the MDC. The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in "`tiny cells for over 23 hours a day.'" 789 F.3d, at 228. Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often — any time they were moved, as well as at random in their cells.
Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of "physical and verbal abuse." Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.
B
Respondents are six men of Arab or South Asian descent. Five are Muslims. Each was illegally in this country, arrested during the course of the September 11 investigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released respondents were removed from the United States.
Respondents then sued on their own behalf, and on behalf of a putative class, seeking compensatory and punitive damages, attorney's fees, and costs. Respondents, it seems fair to conclude from the arguments presented, acknowledge that in the ordinary course aliens who are present in the United States without legal authorization can be detained for some period of time. But here the challenge is to the conditions of their confinement and the reasons or motives for imposing those conditions. The gravamen of their claims was that

the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions.
As relevant here, respondents sued two groups of federal officials in their official capacities. The first group consisted of former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar. This opinion refers to these three petitioners as the "Executive Officials." The other petitioners named in the complaint were the MDC's warden, Dennis Hasty, and associate warden, James Sherman. This opinion refers to these two petitioners as the "Wardens."
Seeking to invoke the Court's decision in Bivens, respondents brought four claims under the Constitution itself. First, respondents alleged that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the substantive due process component of the Fifth Amendment. Second, respondents alleged that petitioners detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment. Third, respondents alleged that the Wardens subjected them to punitive strip searches unrelated to any legitimate penological interest, in violation of the 1854*1854 Fourth Amendment and the substantive due process component of the Fifth Amendment. Fourth, respondents alleged that the Wardens knowingly allowed the guards to abuse respondents, in violation of the substantive due process component of the Fifth Amendment.
Respondents also brought a claim under 42 U.S.C. § 1985(3), which forbids certain conspiracies to violate equal protection rights. Respondents alleged that petitioners conspired with one another to hold respondents in harsh conditions because of their actual or apparent race, religion, or national origin.
C
The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Court of Appeals affirmed in most respects as to the Wardens, though it held that the prisoner abuse claim against Sherman (the associate warden) should have been dismissed. 789 F.3d, at 264-265. As to the Executive Officials, however, the Court of Appeals reversed, reinstating respondents' claims. Ibid. As noted above, Judge Raggi dissented. She would have held that only the prisoner abuse claim against Hasty should go forward. Id., at 295, n. 41, 302 (opinion concurring in part in judgment and dissenting in part). The Court of Appeals declined to rehear the suit en banc, 808 F.3d, at 197; and, again as noted above, Judge Raggi joined a second dissent along with five other judges, id., at 198. This Court granted certiorari. 580 U.S. ___ (2016).
II
The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent.

A
In 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens,Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.
In 1971, and against this background, this Court decided Bivens. The Court held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures. See 403 U.S., at 397, 91 S.Ct. 1999. The Court acknowledged that the Fourth Amendment does not provide for money damages "in so many words." Id., at 396, 91 S.Ct. 1999. The Court noted, however, that Congress had not foreclosed a damages remedy in "explicit" terms and that no "special factors" suggested that the Judiciary should "hesitat[e]" in the face of congressional silence. Id., at 396-397, 91 S.Ct. 1999. The Court, accordingly, held that it could authorize a remedy under general principles of federal jurisdiction. See id., at 392, 91 S.Ct. 1999 (citing Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).
In the decade that followed, the Court recognized what has come to be called an implied cause of action in two cases involving other constitutional violations. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), an administrative assistant sued a Congressman for firing her because she was a woman. The Court held that the Fifth Amendment Due Process Clause gave her a damages remedy 1855*1855 for gender discrimination. Id., at 248-249, 99 S.Ct. 2264. And in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a prisoner's estate sued federal jailers for failing to treat the prisoner's asthma. The Court held that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment. See id., at 19, 100 S.Ct. 1468. These three cases — Bivens, Davis, and Carlson— represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.
B
To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now. During this "ancien regime," Alexander v. Sandoval, 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), the Court assumed it to be a proper judicial function to "provide such remedies as are necessary to make effective" a statute's purpose, J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself. See, e.g., id., at 430-432, 84 S.Ct. 1555; Allen v. State Bd. of Elections, 393 U.S. 544, 557, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) ("The existence of a statutory right implies the existence of all necessary and appropriate remedies").
These statutory decisions were in place when Bivens recognized an implied cause of action to remedy a constitutional violation. Against that background, the Bivensdecision held that courts must "adjust their remedies so as to grant the necessary relief" when "federally protected rights have been invaded." 403 U.S., at 392, 91 S.Ct. 1999 (quoting Bell, supra, at 678, 66 S.Ct. 773); see also 403 U.S., at 402, 91 S.Ct. 1999 (Harlan, J., concurring) (discussing cases recognizing implied causes of action under federal statutes). In light of this interpretive framework, there was a possibility that "the Court would keep expanding Bivens until it became the substantial equivalent of 42 U.S.C. § 1983." Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139-1140 (2014).
C
Later, the arguments for recognizing implied causes of action for damages began to lose their force. In cases decided after Bivens, and after the statutory implied cause-of-action cases that Bivens itself relied upon, the Court adopted a far more cautious course before finding implied causes of action. In two principal cases under other statutes, it declined to find an implied cause of action. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 42, 4546, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977); Cort v. Ash, 422 U.S. 66, 68-69, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Later, in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Court did allow an implied cause of action; but it cautioned that, where Congress "intends private litigants to have a cause of action," the "far better course" is for Congress to confer that remedy in explicit terms. Id., at 717, 99 S.Ct. 1946.
Following this expressed caution, the Court clarified in a series of cases that, when deciding whether to recognize an implied cause of action, the "determinative" question is one of statutory intent. 1856*1856 Sandoval, 532 U.S., at 286, 121 S.Ct. 1511. If the statute itself does not "displa[y] an intent" to create "a private remedy," then "a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute." Id., at 286-287, 121 S.Ct. 1511; see also Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 23-24, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Karahalios v. Federal Employees, 489 U.S. 527, 536-537, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989). The Court held that the judicial task was instead "limited solely to determining whether Congress intended to create the private right of action asserted." Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). If the statute does not itself so provide, a private cause of action will not be created through judicial mandate. See Transamerica, supra, at 24, 100 S.Ct. 242.
The decision to recognize an implied cause of action under a statute involves somewhat different considerations than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself. When Congress enacts a statute, there are specific procedures and times for considering its terms and the proper means for its enforcement. It is logical, then, to assume that Congress will be explicit if it intends to create a private cause of action. With respect to the Constitution, however, there is no single, specific congressional action to consider and interpret.

Even so, it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation. When determining whether traditional equitable powers suffice to give necessary constitutional protection — or whether, in addition, a damages remedy is necessary — there are a number of economic and governmental concerns to consider. Claims against federal officials often create substantial costs, in the form of defense and indemnification. Congress, then, has a substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government. In addition, the time and administrative costs attendant upon intrusions resulting from the discovery and trial process are significant factors to be considered. In an analogous context, Congress, it is fair to assume, weighed those concerns in deciding not to substitute the Government as defendant in suits seeking damages for constitutional violations. See 28 U.S.C. § 2679(b)(2)(A) (providing that certain provisions of the Federal Tort Claims Act do not apply to any claim against a federal employee "which is brought for a violation of the Constitution").
For these and other reasons, the Court's expressed caution as to implied causes of actions under congressional statutes led to similar caution with respect to actions in the Bivens context, where the action is implied to enforce the Constitution itself. Indeed, in light of the changes to the Court's general approach to recognizing implied damages remedies, it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today. To be sure, no congressional enactment has disapproved of these decisions. And it must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-andseizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides 1857*1857 instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.
Given the notable change in the Court's approach to recognizing implied causes of action, however, the Court has made clear that expanding the Bivens remedy is now a "disfavored" judicial activity. Iqbal, 556 U.S., at 675, 129 S.Ct. 1937. This is in accord with the Court's observation that it has "consistently refused to extend Bivens to any new context or new category of defendants." Correctional Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Indeed, the Court has refused to do so for the past 30 years.
For example, the Court declined to create an implied damages remedy in the following cases: a First Amendment suit against a federal employer, Bush v. Lucas,462 U.S. 367, 390, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); a race-discrimination suit against military officers, Chappell v. Wallace, 462 U.S. 296, 297, 304-305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); a substantive due process suit against military officers, United States v. Stanley, 483 U.S. 669, 671-672, 683-684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U.S. 471, 473-474, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); an Eighth Amendment suit against a private prison

operator, Malesko, supra, at 63, 122 S.Ct. 515; a due process suit against officials from the Bureau of Land Management, Wilkie v. Robbins, 551 U.S. 537, 547-548, 562, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007); and an Eighth Amendment suit against prison guards at a private prison, Minneci v. Pollard, 565 U.S. 118, 120, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012).
When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separationof-powers principles are or should be central to the analysis. The question is "who should decide" whether to provide for a damages remedy, Congress or the courts? Bush, 462 U.S., at 380, 103 S.Ct. 2404.
The answer most often will be Congress. When an issue "`involves a host of considerations that must be weighed and appraised,'" it should be committed to "`those who write the laws'" rather than "`those who interpret them.'" Ibid. (quoting United States v. Gilman, 347 U.S. 507, 512-513, 74 S.Ct. 695, 98 L.Ed. 898 (1954)). In most instances, the Court's precedents now instruct, the Legislature is in the better position to consider if "`the public interest would be served'" by imposing a "`new substantive legal liability.'" Schweiker, supra, at 426-427, 108 S.Ct. 2460 (quoting Bush, supra, at 390, 103 S.Ct. 2404). As a result, the Court has urged "caution" before "extending Bivens remedies into any new context." Malesko, supra, at 74, 122 S.Ct. 515. The Court's precedents now make clear that a Bivens remedy will not be available if there are "`special factors counselling hesitation in the absence of affirmative action by Congress.'" Carlson, 446 U.S., at 18, 100 S.Ct. 1468 (quoting Bivens, 403 U.S., at 396, 91 S.Ct. 1999).
This Court has not defined the phrase "special factors counselling hesitation." The necessary inference, though, is that the inquiry must concentrate on 1858*1858 whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a "special factor counselling hesitation," a factor must cause a court to hesitate before answering that question in the affirmative.
It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case.
Sometimes there will be doubt because the case arises in a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere. See Chappell, supra, at 302, 103 S.Ct.

2362 (military); Stanley, supra, at 679, 107 S.Ct. 3054 (same); Meyer, supra, at 486, 114 S.Ct. 996 (public purse); Wilkie, supra, at 561-562, 127 S.Ct. 2588 (federal land). And sometimes there will be doubt because some other feature of a case — difficult to predict in advance — causes a court to pause before acting without express congressional authorization. In sum, if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.
In a related way, if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress has created "any alternative, existing process for protecting the [injured party's] interest" that itself may "amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie, supra, at 550, 127 S.Ct. 2588; see also Bush, supra, at 385-388, 103 S.Ct. 2404 (recognizing that civil-service regulations provided alternative means for relief); Malesko, 534 U.S., at 73-74, 122 S.Ct. 515 (recognizing that state tort law provided alternative means for relief); Minneci, supra, at 127-130, 132 S.Ct. 617 (same).
III
It is appropriate now to turn first to the Bivens claims challenging the conditions of confinement imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. The Court will refer to these claims as the "detention policy claims." The detention policy claims allege that petitioners violated respondents' due process and equal protection rights by holding them in restrictive conditions of confinement; the claims further allege that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The term "detention 1859*1859 policy claims" does not include respondents' claim alleging that Warden Hasty allowed guards to abuse the detainees. That claim will be considered separately, and further, below. At this point, the question is whether, having considered the relevant special factors in the whole context of the detention policy claims, the Court should extend a Bivens-type remedy to those claims.
A
Before allowing respondents' detention policy claims to proceed under Bivens, the Court of Appeals did not perform any special factors analysis at all. 789 F.3d, at 237. The reason, it said, was that the special factors analysis is necessary only if a plaintiff asks for a Bivens remedy in a new context. 789 F.3d, at 234. And in the Court of Appeals' view, the context here was not new. Id., at 235.
To determine whether the Bivens context was novel, the Court of Appeals employed a twopart test. First, it asked whether the asserted constitutional right was at issue in a previous Bivens case. 789 F.3d, at 234. Second, it asked whether the mechanism of injury was the same mechanism of injury in a previous Bivenscase. 789 F.3d, at 234. Under the

Court of Appeals' approach, if the answer to both questions is "yes," then the context is not new and no special factors analysis is required. Ibid.
That approach is inconsistent with the analysis in Malesko. Before the Court decided that case, it had approved a Bivens action under the Eighth Amendment against federal prison officials for failure to provide medical treatment. See Carlson, 446 U.S., at 16, n. 1, 18-19, 100 S.Ct. 1468. In Malesko, the plaintiff sought relief against a private prison operator in almost parallel circumstances. 534 U.S., at 64, 122 S.Ct. 515. In both cases, the right at issue was the same: the Eighth Amendment right to be free from cruel and unusual punishment. And in both cases, the mechanism of injury was the same: failure to provide adequate medical treatment. Thus, if the approach followed by the Court of Appeals is the correct one, this Court should have held that the cases arose in the same context, obviating any need for a special factors inquiry.
That, however, was not the controlling analytic framework in Malesko. Even though the right and the mechanism of injury were the same as they were in Carlson, the Court held that the contexts were different. 534 U.S., at 70, and n. 4, 122 S.Ct. 515. The Court explained that special factors counseled hesitation and that the Bivens remedy was therefore unavailable. 534 U.S., at 74, 122 S.Ct. 515.
For similar reasons, the holding of the Court of Appeals in the instant suit is inconsistent with this Court's analytic framework in Chappell. In Davis, decided before the Court's cautionary instructions with respect to Bivens suits, see supra,at 1856-1858, the Court had held that an employment-discrimination claim against a Congressman could proceed as a Bivens-type action. Davis, 442 U.S., at 230-231, 99 S.Ct. 2264. In Chappell, however, the cautionary rules were applicable; and, as a result, a similar discrimination suit against military officers was not allowed to proceed. It is the Chappell framework that now controls; and, under it, the Court of Appeals erred by holding that this suit did not present a new Bivenscontext.
The proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context 1860*1860 a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivenscases did not consider.
In the present suit, respondents' detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil. Those claims bear little resemblance to the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate's

asthma. See Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619; Davis, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846; Chappell, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586. The Court of Appeals therefore should have held that this was a new Bivens context. Had it done so, it would have recognized that a special factors analysis was required before allowing this damages suit to proceed.
B
After considering the special factors necessarily implicated by the detention policy claims, the Court now holds that those factors show that whether a damages action should be allowed is a decision for the Congress to make, not the courts.
With respect to the claims against the Executive Officials, it must be noted that a Bivens action is not "a proper vehicle for altering an entity's policy." Malesko, supra, at 74, 122 S.Ct. 515. Furthermore, a Bivens claim is brought against the individual official for his or her own acts, not the acts of others. "The purpose of Bivens is to deter the officer." Meyer, 510 U.S., at 485, 114 S.Ct. 996. Bivens is not designed to hold officers responsible for acts of their subordinates. See Iqbal, 556 U.S., at 676, 129 S.Ct. 1937 ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior").
Even if the action is confined to the conduct of a particular Executive Officer in a discrete instance, these claims would call into question the formulation and implementation of a general policy. This, in turn, would necessarily require inquiry and discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged. These consequences counsel against allowing a Bivens action against the Executive Officials, for the burden and demand of litigation might well prevent them — or, to be more precise, future officials like them — from devoting the time and effort required for the proper discharge of their duties. See Cheney v. United States Dist. Court for D. C., 542 U.S. 367, 382, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (noting "the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties").
A closely related problem, as just noted, is that the discovery and litigation process would either border upon or directly implicate 1861*1861 the discussion and deliberations that led to the formation of the policy in question. See Federal Open Market Comm. v. Merrill, 443 U.S. 340, 360, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979)(noting that disclosure of Executive Branch documents "could inhibit the free flow of advice, including analysis, reports, and expression of opinion within an agency"). Allowing a damages suit in this context, or in a like context in other circumstances, would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch. See Clinton v. Jones, 520 U.S. 681, 701, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (recognizing that "`[e]ven when a branch does not arrogate power to itself... the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties'" (quoting Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996))). These considerations also counsel against allowing a damages claim to proceed against the Executive Officials. See Cheney, supra, at 385, 124 S.Ct. 2576 (noting that "special considerations control" when a case implicates

"the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications").
In addition to this special factor, which applies to the claims against the Executive Officials, there are three other special factors that apply as well to the detention policy claims against all of the petitioners. First, respondents' detention policy claims challenge more than standard "law enforcement operations." United States v. Verdugo-Urquidez, 494 U.S. 259, 273, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). They challenge as well major elements of the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security. Were this inquiry to be allowed in a private suit for damages, the Bivens action would assume dimensions far greater than those present in Bivens itself, or in either of its two follow-on cases, or indeed in any putative Bivens case yet to come before the Court.
National-security policy is the prerogative of the Congress and President. See U.S. Const. Art. I, § 8; Art. II, § 1, § 2. Judicial inquiry into the national-security realm raises "concerns for the separation of powers in trenching on matters committed to the other branches." Christopher v. Harbury, 536 U.S. 403, 417, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). These concerns are even more pronounced when the judicial inquiry comes in the context of a claim seeking money damages rather than a claim seeking injunctive or other equitable relief. The risk of personal damages liability is more likely to cause an official to second-guess difficult but necessary decisions concerning national-security policy.
For these and other reasons, courts have shown deference to what the Executive Branch "has determined ... is `essential to national security.'" Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 26, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Indeed, "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs" unless "Congress specifically has provided otherwise." Department of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). Congress has not provided otherwise here.
There are limitations, of course, on the power of the Executive under Article II of the Constitution and in the powers authorized by congressional enactments, even with respect to matters of national security. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 527, 532-537, 124 1862*1862 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion) ("Whatever power the United States Constitution envisions for the Executive... in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake"); Boumediene v. Bush, 553 U.S. 723, 798, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ("Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law"). And national-security concerns must not become a talisman used to ward off inconvenient claims — a "label" used to "cover a multitude of sins." Mitchell v. Forsyth, 472 U.S. 511, 523, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This "`danger of abuse'" is even more heightened given "`the difficulty of defining'" the "`security interest'" in domestic cases. Ibid. (quoting United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 313-314, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)).
Even so, the question is only whether "congressionally uninvited intrusion" is "inappropriate" action for the Judiciary to take. Stanley, 483 U.S., at 683, 107 S.Ct. 3054. The factors

discussed above all suggest that Congress' failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than "inadvertent." Schweiker, 487 U.S., at 423, 108 S.Ct. 2460. This possibility counsels hesitation "in the absence of affirmative action by Congress." Bivens, 403 U.S., at 396, 91 S.Ct. 1999.
Furthermore, in any inquiry respecting the likely or probable intent of Congress, the silence of Congress is relevant; and here that silence is telling. In the almost 16 years since September 11, the Federal Government's responses to that terrorist attack have been well documented. Congressional interest has been "frequent and intense," Schweiker, supra, at 425, 108 S.Ct. 2460 and some of that interest has been directed to the conditions of confinement at issue here. Indeed, at Congress' behest, the Department of Justice's Office of the Inspector General compiled a 300-page report documenting the conditions in the MDC in great detail. See 789 F.3d, at 279 (opinion of Raggi, J.) (noting that the USA PATRIOT Act required "the Department's Inspector General to review and report semiannually to Congress on any identified abuses of civil rights and civil liberties in fighting terrorism"). Nevertheless, "[a]t no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit." Schweiker, 487 U.S., at 426, 108 S.Ct. 2460.
This silence is notable because it is likely that high-level policies will attract the attention of Congress. Thus, when Congress fails to provide a damages remedy in circumstances like these, it is much more difficult to believe that "congressional inaction" was "inadvertent." Id., at 423, 108 S.Ct. 2460.
It is of central importance, too, that this is not a case like Bivens or Davis in which "it is damages or nothing." Bivens, supra, at 410, 91 S.Ct. 1999 (Harlan, J., concurring in judgment); Davis, 442 U.S., at 245, 99 S.Ct. 2264. Unlike the plaintiffs in those cases, respondents do not challenge individual instances of discrimination or law enforcement overreach, which due to their very nature are difficult to address except by way of damages actions after the fact. Respondents instead challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief. And in addition to that, we have left open the question whether they might be able to challenge their confinement 1863*1863conditions via a petition for a writ of habeas corpus. See Bell v. Wolfish, 441 U.S. 520, 526, n. 6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement"); Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ("When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal").
Indeed, the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately; yet this damages suit remains unresolved some 15 years later. (As in Bell and Preiser, the Court need not determine the scope or availability of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.) In sum, respondents had

available to them "`other alternative forms of judicial relief.'" Minneci, 565 U.S., at 124, 132 S.Ct. 617. And when alternative methods of relief are available, a Bivens remedy usually is not. See Bush, 462 U.S., at 386-388, 103 S.Ct. 2404; Schweiker, supra, at 425-426, 108 S.Ct. 2460; Malesko, 534 U.S., at 73-74, 122 S.Ct. 515; Minneci, supra,at 125-126, 132 S.Ct. 617.
There is a persisting concern, of course, that absent a Bivens remedy there will be insufficient deterrence to prevent officers from violating the Constitution. In circumstances like those presented here, however, the stakes on both sides of the argument are far higher than in past cases the Court has considered. If Bivensliability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office.
On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril. Cf. Stanley, supra, at 681, 107 S.Ct. 3054 (noting that the special-factors analysis in that case turned on "how much occasional, unintended impairment of military discipline one is willing to tolerate"). The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents' detention policy claims to proceed under Bivens.
IV
A
One of respondents' claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC's warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.
The warden argues, as an initial matter, that the complaint does not "`state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S., at 678, 129 S.Ct. 1937(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Applying its precedents, the Court of Appeals held that the 1864*1864 substantive standard for the sufficiency of the claim is whether the warden showed "deliberate indifference" to prisoner abuse. 789 F.3d, at 249-250. The parties appear to agree on this standard, and, for purposes of this case, the Court assumes it to be correct.
The complaint alleges that guards routinely abused respondents; that the warden encouraged the abuse by referring to respondents as "terrorists"; that he prevented respondents from using normal grievance procedures; that he stayed away from the Unit to avoid seeing the abuse; that he was made aware of the abuse via "inmate complaints, staff complaints, hunger strikes, and suicide attempts"; that he ignored other "direct evidence of [the] abuse, including logs and other official [records]"; that he took no action "to rectify or

address the situation"; and that the abuse resulted in the injuries described above, see supra, at 1853. These allegations — assumed here to be true, subject to proof at a later stage — plausibly show the warden's deliberate indifference to the abuse. Consistent with the opinion of every judge in this case to have considered the question, including the dissenters in the Court of Appeals, the Court concludes that the prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation if a Bivens remedy is to be implied.
Warden Hasty argues, however, that Bivens ought not to be extended to this instance of alleged prisoner abuse. As noted above, the first question a court must ask in a case like this one is whether the claim arises in a new Bivens context, i.e.,whether "the case is different in a meaningful way from previous Bivens cases decided by this Court." Supra, at 1859.
It is true that this case has significant parallels to one of the Court's previous Bivens cases, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15. There, the Court did allow a Bivens claim for prisoner mistreatment — specifically, for failure to provide medical care. And the allegations of injury here are just as compelling as those at issue in Carlson. This is especially true given that the complaint alleges serious violations of Bureau of Prisons policy. See 28 C.F.R. § 552.20 (2016) (providing that prison staff may use force "only as a last alternative after all other reasonable efforts to resolve a situation have failed" and that staff may "use only that amount of force necessary to [ensure prison safety and security]"); § 552.22(j) ("All incidents involving the use of force ... must be carefully documented"); § 542.11 (requiring the warden to investigate certain complaints of inmate abuse).
Yet even a modest extension is still an extension. And this case does seek to extend Carlson to a new context. As noted above, a case can present a new context for Bivens purposes if it implicates a different constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or if there are potential special factors that were not considered in previous Bivens cases. See supra at 1858.
The constitutional right is different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth. See 446 U.S., at 16, 100 S.Ct. 1468. And the judicial guidance available to this warden, with respect to his supervisory duties, was less developed. The Court has long made clear the standard for claims alleging failure to provide medical treatment to a prisoner — "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard for a claim alleging that a warden 1865*1865 allowed guards to abuse pre-trial detainees is less clear under the Court's precedents.
This case also has certain features that were not considered in the Court's previous Bivens cases and that might discourage a court from authorizing a Bivensremedy. As noted above, the existence of alternative remedies usually precludes a court from authorizing a Bivens action. Supra, at 1858-1859. And there might have been alternative remedies available here, for example, a writ of habeas corpus, Wolfish, 441 U.S., at 526, n. 6, 99 S.Ct. 1861; an injunction requiring the warden to bring his prison into compliance with the regulations discussed above; or some other form of equitable relief.

Furthermore, legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation. See supra, at 1858-1859. Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. See 42 U.S.C. § 1997e. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.
The differences between this claim and the one in Carlson are perhaps small, at least in practical terms. Given this Court's expressed caution about extending the Bivens remedy, however, the new-context inquiry is easily satisfied. Some differences, of course, will be so trivial that they will not suffice to create a new Bivens context. But here the differences identified above are at the very least meaningful ones. Thus, before allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other "sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy" in a suit like this one. Supra, at 1859.
B
Although the Court could perform that analysis in the first instance, the briefs have concentrated almost all of their efforts elsewhere. Given the absence of a comprehensive presentation by the parties, and the fact that the Court of Appeals did not conduct the analysis, the Court declines to perform the special factors analysis itself. The better course is to vacate the judgment below, allowing the Court of Appeals or the District Court to do so on remand.
V
One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U.S.C. § 1985(3). Unlike the prisoner abuse claim just discussed, this claim implicates the activities of all the petitioners — the Executive Officials as well as the Wardens — in creating the conditions of confinement at issue here.
The civil-conspiracy prohibition contained in § 1985(3) was enacted as a significant part of the civil rights legislation passed in the aftermath of the Civil War. See Carpenters v. Scott, 463 U.S. 825, 834-837, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (detailing the legislative history of § 1985(3)); Griffin v. Breckenridge, 403 1866*1866 U.S. 88, 99-101, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (same); Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U.S. 366, 379, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (Powell, J., concurring) (describing § 1985(3) as a "Civil War Era remedial statute"). The statute imposes liability on two or more persons who "conspire ... for the purpose of depriving ... any person or class of persons of the equal protection of the laws." § 1985(3). In the instant

suit, respondents allege that petitioners violated the statute by "agreeing to implement a policy" under which respondents would be detained in harsh conditions "because of their race, religion, ethnicity, and national origin." Assuming these allegations to be true and well pleaded, the question is whether petitioners are entitled to qualified immunity.
A
The qualified immunity rule seeks a proper balance between two competing interests. On one hand, damages suits "may offer the only realistic avenue for vindication of constitutional guarantees." Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). As one means to accommodate these two objectives, the Court has held that Government officials are entitled to qualified immunity with respect to "discretionary functions" performed in their official capacities. Ibid. The doctrine of qualified immunity gives officials "breathing room to make reasonable but mistaken judgments about open legal questions." Ashcroft v. alKidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).
The Court's cases provide additional instruction to define and implement that immunity. Whether qualified immunity can be invoked turns on the "objective legal reasonableness" of the official's acts. Harlow, supra, at 819, 102 S.Ct. 2727. And reasonableness of official action, in turn, must be "assessed in light of the legal rules that were clearly established at the time [the action] was taken." Anderson, supra, at 639, 107 S.Ct. 3034 (internal quotation marks omitted); see also Mitchell,472 U.S., at 528, 105 S.Ct. 2806. This requirement — that an official loses qualified immunity only for violating clearly established law — protects officials accused of violating "extremely abstract rights." Anderson, supra, at 639, 107 S.Ct. 3034.
The Fourth Amendment provides an example of how qualified immunity functions with respect to abstract rights. By its plain terms, the Amendment forbids unreasonable searches and seizures, yet it may be difficult for an officer to know whether a search or seizure will be deemed reasonable given the precise situation encountered. See Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts"). For this reason, "[t]he dispositive question is `whether the violative nature of particular conduct is clearly established.'" Mullenix v. Luna, 577 U.S. ___, ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Ashcroft, supra, at 742, 129 S.Ct. 1937).
It is not necessary, of course, that "the very action in question has previously been held unlawful." Anderson, supra, at 1867*1867 640, 107 S.Ct. 3034. That is, an officer might lose qualified immunity even if there is no reported case "directly on point." Ashcroft, supra, at 741, 129 S.Ct. 1937. But "in the light of pre-existing law," the unlawfulness of the officer's conduct "must be apparent." Anderson, supra, at 640, 107 S.Ct. 3034. To subject officers to any broader liability would be to "disrupt the balance that our cases strike between the interests in vindication of citizens' constitutional rights and in public officials' effective

performance of their duties." Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). For then, both as a practical and legal matter, it would be difficult for officials "reasonably [to] anticipate when their conduct may give rise to liability for damages." Ibid.
In light of these concerns, the Court has held that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). To determine whether a given officer falls into either of those two categories, a court must ask whether it would have been clear to a reasonable officer that the alleged conduct "was unlawful in the situation he confronted." Saucier, supra, at 202, 121 S.Ct. 2151. If so, then the defendant officer must have been either incompetent or else a knowing violator of the law, and thus not entitled to qualified immunity. If not, however — i.e., if a reasonable officer might not have known for certain that the conduct was unlawful — then the officer is immune from liability.
B
Under these principles, it must be concluded that reasonable officials in petitioners' positions would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.
At least two aspects of the complaint indicate that petitioners' potential liability for this statutory offense would not have been known or anticipated by reasonable officials in their position. First, the conspiracy recited in the complaint is alleged to have been between or among officers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice). Second, the discussions were the preface to, and the outline of, a general and far-reaching policy.
As to the fact that these officers were in the same Department, an analogous principle discussed in the context of antitrust law is instructive. The Court's precedent indicates that there is no unlawful conspiracy when officers within a single corporate entity consult among themselves and then adopt a policy for the entity. See Copperweld Corp v. Independence Tube Corp., 467 U.S. 752, 769-771, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). Under this principle — sometimes called the intracorporate-conspiracy doctrine — an agreement between or among agents of the same legal entity, when the agents act in their official capacities, is not an unlawful conspiracy. Ibid. The rule is derived from the nature of the conspiracy prohibition. Conspiracy requires an agreement — and in particular an agreement to do an unlawful act — between or among two or more separate persons. When two agents of the same legal entity make an agreement in the course of their official duties, however, as a practical and legal matter their acts are attributed to their principal. And it then follows that there has not been an agreement between two or more separate people. See id., at 771, 104 S.Ct. 2731 (analogizing to "a multiple team of horses 1868*1868 drawing a vehicle under the control of a single driver").
To be sure, this Court has not given its approval to this doctrine in the specific context of § 1985(3). See Great American, 442 U.S., at 372, n. 11, 99 S.Ct. 2345. There is a division in the courts of appeals, moreover, respecting the validity or correctness of the intracorporateconspiracy doctrine with reference to § 1985 conspiracies. See Hull v. Shuck, 501 U.S.

1261, 1261-1262, 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991) (White, J., dissenting from denial of certiorari) (discussing the Circuit split); Bowie v. Maddox, 642 F.3d 1122, 11301131 (C.A.D.C.2011)(detailing a longstanding split about whether the intracorporateconspiracy doctrine applies to civil rights conspiracies). Nothing in this opinion should be interpreted as either approving or disapproving the intracorporate-conspiracy doctrine's application in the context of an alleged § 1985(3) violation. The Court might determine, in some later case, that different considerations apply to a conspiracy respecting equal protection guarantees, as distinct from a conspiracy in the antitrust context. Yet the fact that the courts are divided as to whether or not a § 1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on the point is not well established. When the courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability. See Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (noting that it would be "unfair" to subject officers to damages liability when even "judges ... disagree"); Reichle v. Howards, 566 U.S. 658, 669-670, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (same).
In addition to the concern that agents of the same legal entity are not distinct enough to conspire with one another, there are other sound reasons to conclude that conversations and agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under § 1985(3). To state a claim under § 1985(3), a plaintiff must first show that the defendants conspired — that is, reached an agreement — with one another. See Carpenters, 463 U.S., at 828, 103 S.Ct. 3352 (stating that the elements of a § 1985(3) claim include "a conspiracy"). Thus, a § 1985(3) claim against federal officials by necessity implicates the substance of their official discussions.
As indicated above with respect to other claims in this suit, open discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the Federal Government should pursue. See supra, at 1860-1861. Close and frequent consultations to facilitate the adoption and implementation of policies are essential to the orderly conduct of governmental affairs. Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the officials as individuals, the result would be to chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies. See Cheney, 542 U.S., at 383, 124 S.Ct. 2576 (discussing the need for confidential communications among Executive Branch officials); Merrill, 443 U.S., at 360, 99 S.Ct. 2800 (same).
These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Whether that contention should prevail need not be decided here. It suffices to say that the question is sufficiently open so that the officials in this suit could not be certain that 1869*1869 § 1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable officers in petitioners' positions would not have known with any certainty that the alleged agreements were forbidden by law. See Saucier, 533 U.S., at 202, 121 S.Ct. 2151. Petitioners are entitled to qualified immunity with respect to the claims under 42 U.S.C. § 1985(3).

* * *
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners' alleged conduct was proper, nor whether it gave decent respect to respondents' dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.
The question with respect to the § 1985(3) claim is whether a reasonable officer in petitioners' position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.
The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings.
It is so ordered.
Justice SOTOMAYOR, Justice KAGAN, and Justice GORSUCH took no part in the consideration or decision of these cases.
Justice THOMAS, concurring in part and concurring in the judgment.
I join the Court's opinion except for Part IV-B. I write separately to express my view on the Court's decision to remand some of respondents' claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and my concerns about our qualified immunity precedents.
I
With respect to respondents' Bivens claims, I join the opinion of the Court to the extent it reverses the Second Circuit's ruling. The Court correctly applies our precedents to hold that Bivens does not supply a cause of action against petitioners for most of the alleged Fourth and Fifth Amendment violations. It also correctly recognizes that respondents' claims against petitioner Dennis Hasty seek to extend Bivens to a new context. See ante, at 1864.
I concur in the judgment of the Court vacating the Court of Appeals' judgment with regard to claims against Hasty. Ante, at 1867. I have previously noted that "`Bivensis a relic of the heady days in which this Court assumed common-law powers to create causes of

action.'" Wilkie v. Robbins, 551 U.S. 537, 568, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (concurring opinion) (quoting Correctional Services 1870*1870Corp. v. Malesko, 534 U.S. 61, 75, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (Scalia, J., concurring)). I have thus declined to "extend Bivens even [where] its reasoning logically applied," thereby limiting "Bivens and its progeny ... to the precise circumstances that they involved." Ibid. (internal quotation marks omitted). This would, in most cases, mean a reversal of the judgment of the Court of Appeals is in order. However, in order for there to be a controlling judgment in this suit, I concur in the judgment vacating and remanding the claims against petitioner Hasty as that disposition is closest to my preferred approach.
II
As for respondents' claims under 42 U.S.C. § 1985(3), I join Part V of the Court's opinion, which holds that respondents are entitled to qualified immunity. The Court correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence.
The Civil Rights Act of 1871, of which § 1985(3) and the more frequently litigated § 1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§ 1, 2, 17 Stat. 13. Although the Act made no mention of defenses or immunities, "we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them." Malley v. Briggs, 475 U.S. 335, 339, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (internal quotation marks omitted). We have done so because "[c]ertain immunities were so well established in 1871 ... that `we presume that Congress would have specifically so provided had it wished to abolish' them." Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); accord, Briscoe v. LaHue, 460 U.S. 325, 330, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Immunity is thus available under the statute if it was "historically accorded the relevant official" in an analogous situation "at common law," Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976),unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).
In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole, 504 U.S. 158, 170, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (KENNEDY, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under § 1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove, 341 U.S. 367, 372-376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators); Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the "judicial phase of the criminal process," Imbler, supra, at 430, 96 S.Ct. 984; Burns v. Reed, 500 U.S. 478, 489-492, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); but see Kalina v. Fletcher,522 U.S. 118, 131-134, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (Scalia, J., joined by THOMAS, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor's advice to police officers, Burns, supra, at 493, 111 S.Ct. 1934.

In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely 1871*1871 immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U.S., at 555, 87 S.Ct. 1213. Rather, we concluded that police officers could assert "the defense of good faith and probable cause" against the claim for an unconstitutional arrest because that defense was available against the analogous torts of "false arrest and imprisonment" at common law. Id., at 557, 87 S.Ct. 1213.
In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170, 112 S.Ct. 1827 (KENNEDY, J., concurring); accord, Crawford-El v. Britton, 523 U.S. 574, 611, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (Scalia, J., joined by THOMAS, J., dissenting). In the decisions following Pierson,we have "completely reformulated qualified immunity along principles not at all embodied in the common law." Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (discussing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff's claim under § 1983, we instead grant immunity to any officer whose conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mullenix v. Luna, 577 U.S. ___, ___-___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ___, ___ 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (a Government official is liable under the 1871 Act only if "`existing precedent ... placed the statutory or constitutional question beyond debate'" (quoting Ashcroft v. alKidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011))). We apply this "clearly established" standard "across the board" and without regard to "the precise nature of the various officials' duties or the precise character of the particular rights alleged to have been violated." Anderson, supra, at 641-643, 107 S.Ct. 3034 (internal quotation marks omitted).[*]We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7-17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).
Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in "interpret[ing] the intent of Congress in enacting" the Act. Malley, supra, at 342, 106 S.Ct. 1092; see Burns, supra, at 493, 111 S.Ct. 1934. Our qualified immunity precedents instead represent precisely the sort of "freewheeling policy choice[s]" that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U.S. 356, 363, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012) (internal quotation marks omitted); see also Tower, supra, at 922-923, 104 S.Ct. 2820 ("We do not have a license to establish immunities from" suits brought under 1872*1872 the Act "in the interests of what we judge to be sound public policy"). We have acknowledged, in fact, that the "clearly established" standard is designed to "protec[t] the balance between vindication of constitutional rights and government officials' effective performance of their duties." Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (internal quotation marks omitted); Harlow, supra, at 807, 102 S.Ct.

2727 (explaining that "the recognition of a qualified immunity defense ... reflected an attempt to balance competing values"). The Constitution assigns this kind of balancing to Congress, not the Courts.
In today's decision, we continue down the path our precedents have marked. We ask "whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted," ante, at 1867 (internal quotation marks omitted), rather than whether officers in petitioners' positions would have been accorded immunity at common law in 1871 from claims analogous to respondents'. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.
Justice BREYER, with whom Justice GINSBURG joins, dissenting.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), this Court held that the Fourth Amendment provides a damages remedy for those whom federal officials have injured as a result of an unconstitutional search or seizure. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court held that the Fifth Amendment provides a damages remedy to an individual dismissed by her employer (a Member of Congress) on the basis of her sex in violation of the equal protection component of that Amendment's Due Process Clause. And in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court held that the Eighth Amendment provides a damages remedy to a prisoner who died as a result of prison official's deliberate indifference to his medical needs, in violation of the Amendment's prohibition against cruel and unusual punishment.
It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance. See J. Pfander, Constitutional Torts and the War on Terror (2017) (canvassing the history of Bivens and cataloguing cases). Moreover, the courts, in order to avoid deterring federal officials from properly performing their work, have developed safeguards for defendants, including the requirement that plaintiffs plead "plausible" claims, Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), as well as the defense of "qualified immunity," which frees federal officials from both threat of liability and involvement in the lawsuit, unless the plaintiffs establish that officials have violated "`clearly established ... constitutional rights,'" id., at 672, 129 S.Ct. 1937 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "[This] Court has been reluctant to extend Bivens liability `to any new context or new category of defendants.'" Iqbal, supra, at 675, 129 S.Ct. 1937 (quoting Correctional Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 1873*1873 151 L.Ed.2d 456 (2001)). But the Court has made clear that it would not narrow Bivens' existing scope. See FDIC v. Meyer, 510 U.S. 471, 485, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (guarding against "the evisceration of the Bivens remedy" so that its "deterrent effects ... would [not] be lost").

The plaintiffs before us today seek damages for unconstitutional conditions of confinement. They alleged that federal officials slammed them against walls, shackled them, exposed them to nonstop lighting, lack of hygiene, and the like, all based upon invidious discrimination and without penological justification. See ante,at 1852-1853. In my view, these claims are well-pleaded, state violations of clearly established law, and fall within the scope of longstanding Bivens law. For those reasons, I would affirm the judgment of the Court of Appeals. I shall discuss at some length what I believe is the most important point of disagreement. The Court, in my view, is wrong to hold that permitting a constitutional tort action here would "extend" Bivens, applying it in a new context. To the contrary, I fear that the Court's holding would significantly shrink the existing Bivens contexts, diminishing the compensatory remedy constitutional tort law now offers to harmed individuals.
I shall explain why I believe this suit falls well within the scope of traditional constitutional tort law and why I cannot agree with the Court's arguments to the contrary. I recognize, and write separately about, the strongest of the Court's arguments, namely, the fact that plaintiffs' claims concern detention that took place soon after a serious attack on the United States and some of them concern actions of high-level Government officials. While these facts may affect the substantive constitutional questions (e.g., were any of the conditions "legitimate"?) or the scope of the qualified-immunity defense, they do not extinguish the Bivens action itself. If I may paraphrase Justice Harlan, concurring in Bivens: In wartime as well as in peacetime, "it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy" "for the most flagrant and patently unjustified," unconstitutional "abuses of official power." 403 U.S., at 410-411, 91 S.Ct. 1999 (opinion concurring in judgment); cf. Boumediene v. Bush, 553 U.S. 723, 798, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).
I
The majority opinion well summarizes the particular claims that the plaintiffs make in this suit. All concern the conditions of their confinement, which began soon after the September 11, 2001, attacks and "lasted for days and weeks, then stretching into months." Ante, at 1851. At some point, the plaintiffs allege, all the defendants knew that they had nothing to do with the September 11 attacks but continued to detain them anyway in harsh conditions. Official Government policy, both before and after the defendants became aware of the plaintiffs' innocence, led to the plaintiffs being held in "tiny cells for over 23 hours a day" with lights continuously left on, "shackled" when moved, often "strip searched," and "denied access to most forms of communication with the out-side world." Ante, at 1853 (internal quotation marks omitted). The defendants detained the plaintiffs in these conditions on the basis of their race or religion and without justification.
Moreover, the prison wardens were aware of, but deliberately indifferent to, certain unofficial activities of prison guards involving a pattern of "physical and verbal abuse," such as "slam[ming] detainees into walls; twist[ing] their arms, wrists, and 1874*1874 fingers; [breaking] their bones;" and subjecting them to verbal taunts. Ibid.(internal quotation marks omitted).
The plaintiffs' complaint alleges that all the defendants — high-level Department of Justice officials and prison wardens alike — were directly responsible for the official confinement

policy, which, in some or all of the aspects mentioned, violated the due process and equal protection components of the Fifth Amendment. The complaint adds that, insofar as the prison wardens were deliberately indifferent to the unofficial conduct of the guards, they violated the Fourth and the Fifth Amendments.
I would hold that the complaint properly alleges constitutional torts, i.e., Bivensactions for damages.
A
The Court's holdings in Bivens, Carlson, and Davis rest upon four basic legal considerations. First, the Bivens Court referred to longstanding Supreme Court precedent stating or suggesting that the Constitution provides federal courts with considerable legal authority to use traditional remedies to right constitutional wrongs. That precedent begins with Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), which effectively placed upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special. Chief Justice John Marshall wrote for the Court that
"[t]he very essence of civil liberty [lies] in the right of every individual to claim the protection of the laws, whenever he receives an injury." Id.,at 163.
The Chief Justice referred to Blackstone's Commentaries stating that there
"`is a general and indisputable rule, that where there is a legal right, there is also a legal remedy ... [and that] it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.'" 1 Cranch, at 163.
The Chief Justice then wrote:
"The government of the United States has been emphatically termed a government of laws, and not of men. It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Ibid.
He concluded for the Court that there must be something "peculiar" (i.e., special) about a case that warrants "exclu[ding] the injured party from legal redress ... [and placing it within] that class of cases which come under the description of damnum absque injuria — a loss without an injury." Id., at 163-164; but cf. id., at 164 (placing "political" questions in the latter, special category).
Much later, in Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946),the Court wrote that,
"where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."

See also Bivens, 403 U.S., at 392, 91 S.Ct. 1999 (citing opinions of Justices Cardozo and Holmes to similar effect).
The Bivens Court reiterated these principles and confirmed that the appropriate remedial "adjust[ment]" in the case before it was an award of money damages, the "remedial mechanism normally available in the federal courts." Id., at 392, 397, 91 S.Ct. 1999. Justice Harlan agreed, adding that, since Congress' "general" statutory "grant of jurisdiction" authorized courts to grant equitable relief in cases arising under federal jurisdiction, courts likewise had the authority to award damages — the "traditional remedy at law" — in order to "vindicate the interests of the individual" 1875*1875 protected by the Bill of Rights. Id., at 405-407, 91 S.Ct. 1999(opinion concurring in judgment).
Second, our cases have recognized that Congress' silence on the subject indicates a willingness to leave this matter to the courts. In Bivens, the Court noted, as an argument favoring its conclusion, the absence of an "explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents." Id., at 397, 91 S.Ct. 1999. Similarly, in Davis v. Passman, the Court stressed that there was "no evidence ... that Congress meant ... to foreclose" a damages remedy. 442 U.S., at 247, 99 S.Ct. 2264. In Carlson, the Court went further, observing that not only was there no sign "that Congress meant to pre-empt a Bivens remedy," but there was also "clear" evidence that Congress intended to preserve it. 446 U.S., at 19-20, 100 S.Ct. 1468.
Third, our Bivens cases acknowledge that a constitutional tort may not lie when "special factors counse[l] hesitation" and when Congress has provided an adequate alternative remedy. 446 U.S., at 18-19, 100 S.Ct. 1468. The relevant special factors in those cases included whether the court was faced "with a question of `federal fiscal policy,'" Bivens, supra, at 396, 91 S.Ct. 1999 or a risk of "deluging federal courts with claims," Davis, supra, at 248, 99 S.Ct. 2264 (internal quotation marks omitted). Carlson acknowledged an additional factor — that damages suits "might inhibit [federal officials'] efforts to perform their official duties" — but concluded that "the qualified immunity accorded [federal officials] under [existing law] provides adequate protection." 446 U.S., at 19, 100 S.Ct. 1468.
Fourth, as the Court recognized later in Carlson, a Bivens remedy was needed to cure what would, without it, amount to a constitutional anomaly. Long before this Court incorporated many of the Bill of Rights' guarantees against the States, see Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992), federal civil rights statutes afforded a damages remedy to any person whom a state official deprived of a federal constitutional right, see 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167, 171-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)(describing this history). But federal statutory law did not provide a damages remedy to a person whom a federal official had deprived of that same right, even though the Bill of Rights was at the time of the founding primarily aimed at constraining the Federal Government. Thus, a person harmed by an unconstitutional search or seizure might sue a city mayor, a state legislator, or even a Governor. But that person could not sue a federal agent, a national legislator, or a Justice Department official for an identical offense. "[Our] `constitutional design,'" the Court wrote, "would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same

constitutional transgression." Carlson, supra, at 22, 100 S.Ct. 1468 (quoting Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)).
The Bivens Court also recognized that the Court had previously inferred damages remedies caused by violations of certain federal statutes that themselves did not explicitly authorize damages remedies. 403 U.S., at 395-396, 91 S.Ct. 1999. At the same time, Bivens, Davis, and Carlson treat the courts' power to derive a damages remedy from a constitutional provision not as included within a power to find a statute-based damages remedy but as flowing from those statutory cases a fortiori.
1876*1876 As the majority opinion points out, this Court in more recent years has indicated that "expanding the Bivens remedy is now a `disfavored' judicial activity." Ante, at 1857 (quoting Iqbal, 556 U.S., at 675, 129 S.Ct. 1937; emphasis added). Thus, it has held that the remedy is not available in the context of suits against military officers, see Chappell v. Wallace, 462 U.S. 296, 298-300, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); United States v. Stanley, 483 U.S. 669, 683-684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); in the context of suits against privately operated prisons and their employees, see Minneci v. Pollard, 565 U.S. 118, 120, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012); Malesko, 534 U.S., at 70-73, 122 S.Ct. 515; in the context of suits seeking to vindicate procedural, rather than substantive, constitutional protections, see Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); and in the context of suits seeking to vindicate two quite different forms of important substantive protection, one involving free speech, see Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983),and the other involving protection of land rights, see Wilkie v. Robbins, 551 U.S. 537, 551, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Each of these cases involved a context that differed from that of Bivens, Davis, and Carlson with respect to the kind of defendant, the basic nature of the right, or the kind of harm suffered. That is to say, as we have explicitly stated, these cases were "fundamentally differentfrom anything recognized in Bivens or subsequent cases." Malesko, supra, at 70, 122 S.Ct. 515 (emphasis added). In each of them, the plaintiffs were asking the Court to "`authoriz[e] a new kind of federal litigation.'" Wilkie, supra, at 550, 127 S.Ct. 2588 (emphasis added).
Thus the Court, as the majority opinion says, repeatedly wrote that it was not "expanding" the scope of the Bivens remedy. Ante, at 1856-1857. But the Court nowhere suggested that it would narrow Bivens' existing scope. In fact, to diminish any ambiguity about its holdings, the Court set out a framework for determining whether a claim of constitutional violation calls for a Bivens remedy. See Wilkie, supra, at 549-550, 127 S.Ct. 2388. At Step One, the court must determine whether the case before it arises in a "new context," that is, whether it involves a "new category of defendants," Malesko, supra, at 68, 122 S.Ct. 515 or (presumably) a significantly different kind of constitutional harm, such as a purely procedural harm, a harm to speech, or a harm caused to physical property. If the context is new, then the court proceeds to Step Two and asks "whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie, 551 U.S., at 550, 127 S.Ct. 2588. If there is none, then the court proceeds to Step Three and asks whether there are "`any special factors counselling hesitation before authorizing a new kind of federal litigation.'" Ibid.

Precedent makes this framework applicable here. I would apply it. And, doing so, I cannot get past Step One. This suit, it seems to me, arises in a context similar to those in which this Court has previously permitted Bivens actions.
B
1
The context here is not "new," Wilkie, supra, at 550, 127 S.Ct. 2588 or "fundamentally different" than our previous Bivens cases, Malesko, supra, at 70, 122 S.Ct. 515. First, the plaintiffs are civilians, not members of the military. They are not citizens, but the Constitution protects 1877*1877 noncitizens against serious mistreatment, as it protects citizens. See United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) ("[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country"). Some or all of the plaintiffs here may have been illegally present in the United States. But that fact cannot justify physical mistreatment. Nor does anyone claim that that fact deprives them of a Bivens right available to other persons, citizens and noncitizens alike.
Second, the defendants are Government officials. They are not members of the military or private persons. Two are prison wardens. Three others are high-ranking Department of Justice officials. Prison wardens have been defendants in Bivensactions, as have other high-level Government officials. One of the defendants in Carlson was the Director of the Bureau of Prisons; the defendant in Davis was a Member of Congress. We have also held that the Attorney General of the United States is not entitled to absolute immunity in a damages suit arising out of his actions related to national security. See Mitchell v. Forsyth, 472 U.S. 511, 520, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
Third, from a Bivens perspective, the injuries that the plaintiffs claim they suffered are familiar ones. They focus upon the conditions of confinement. The plaintiffs say that they were unnecessarily shackled, confined in small unhygienic cells, subjected to continuous lighting (presumably preventing sleep), unnecessarily and frequently strip searched, slammed against walls, injured physically, and subject to verbal abuse. They allege that they suffered these harms because of their race or religion, the defendants having either turned a blind eye to what was happening or themselves introduced policies that they knew would lead to these harms even though the defendants knew the plaintiffs had no connections to terrorism.
These claimed harms are similar to, or even worse than, the harms the plaintiffs suffered in Bivens (unreasonable search and seizure in violation of the Fourth Amendment), Davis (unlawful discrimination in violation of the Fifth Amendment), and Carlson (deliberate indifference to medical need in violation of the Eighth Amendment). Indeed, we have said that, "[i]f a federal prisoner in a [Bureau of Prisons] facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity." Malesko, 534 U.S., at 72, 122 S.Ct. 515; see also Farmer v. Brennan,511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (Bivens case about prisoner abuse). The claims in this suit would seem to fill

the Bivens' bill. See Sell v. United States, 539 U.S. 166, 193, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (Scalia, J., dissenting) ("[A] [Bivens] action ... is available to federal pretrial detainees challenging the conditions of their confinement").
It is true that the plaintiffs bring their "deliberate indifference" claim against Warden Hasty under the Fifth Amendment's Due Process Clause, not the Eighth Amendment's Cruel and Unusual Punishment Clause, as in Carlson. But that is because the latter applies to convicted criminals while the former applies to pretrial and immigration detainees. Where the harm is the same, where this Court has held that both the Fifth and Eighth Amendments give rise to Bivens' remedies, and where the only difference in constitutional scope consists of a circumstance (the absence of a conviction) that makes the violation here worse, it cannot be maintained 1878*1878 that the difference between the use of the two Amendments is "fundamental." See City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) ("due process rights" of an unconvicted person "are at least as great as the Eighth Amendment protections available to a convicted prisoner"); Kingsley v. Hendrickson, 576 U.S. ___, ___-___, 135 S.Ct. 2466, 2475, 192 L.Ed.2d 416 (2015) ("pretrial detainees (unlike convicted prisoners) cannot be punished at all"); Zadvydas v. Davis, 533 U.S. 678, 721, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (KENNEDY, J., dissenting)(detention "incident to removal ... cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish"). See also Bistrian v. Levi, 696 F.3d 352, 372 (C.A.3 2012) (permitting Bivens action brought by detainee in administrative segregation); Thomas v. Ashcroft, 470 F.3d 491, 493, 496-497 (C.A.2 2006) (detainee alleging failure to provide adequate medical care); Magluta v. Samples, 375 F.3d 1269, 1271, 1275-1276 (C.A.11 2004) (detainee in solitary confinement); Papa v. United States, 281 F.3d 1004, 1010-1011 (C.A.9 2002) (due process claims arising from death of immigration detainee); Loe v. Armistead, 582 F.2d 1291, 12931296 (C.A.4 1978) (detainee's claim of deliberate indifference to medical need). If an arrestee can bring a claim of excessive force (Bivens itself), and a convicted prisoner can bring a claim for denying medical care (Carlson), someone who has neither been charged nor convicted with a crime should also be able to challenge abuse that causes him to need medical care.
Nor has Congress suggested that it wants to withdraw a damages remedy in circumstances like these. By its express terms, the Prison Litigation Reform Act of 1995 (PLRA) does not apply to immigration detainees. See 42 U.S.C. § 1997e(h) ("[T]he term `prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law ..."); see also Agyeman v. INS, 296 F.3d 871, 886 (C.A.9 2002) ("[W]e hold that an alien detained by the INS pending deportation is not a `prisoner' within the meaning of the PLRA"); LaFontant v. INS, 135 F.3d 158, 165 (C.A.D.C.1998) (same); Ojo v. INS, 106 F.3d 680, 683 (C.A.5 1997) (same). And, in fact, there is strong evidence that Congress assumed that Bivens remedies would be available to prisoners when it enacted the PLRA — e.g., Congress continued to permit prisoners to recover for physical injuries, the typical kinds of Bivens injuries. See 28 U.S.C. § 1346(b)(2); Pfander, Constitutional Torts, at 105106.
If there were any lingering doubt that the claim against Warden Hasty arises in a familiar Bivens context, the Court has made clear that conditions-of-confinement claims and

medical-care claims are subject to the same substantive standard. See Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ("[Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)] extended the deliberate indifference standard applied to Eighth Amendment claims involving medical care to claims about conditions of confinement"). Indeed, the Court made this very point in a Bivens case alleging that prison wardens were deliberately indifferent to an inmate's safety. See Farmer, supra, at 830, 834, 114 S.Ct. 1970.
I recognize that the Court finds a significant difference in the fact that the confinement here arose soon after a national-security emergency, namely, the September 11 attacks. The short answer to this argument, in respect to at least some of the claimed harms, is that some plaintiffs continued to suffer those harms up to 1879*1879 eight months after the September 11 attacks took place and after the defendants knew the plaintiffs had no connection to terrorism. See App. to Pet. for Cert. in No. 15-1359, p. 280a. But because I believe the Court's argument here is its strongest, I will consider it at greater length below. See Part III-C, infra.
Because the context here is not new, I would allow the plaintiffs' constitutional claims to proceed. The plaintiffs have adequately alleged that the defendants were personally involved in imposing the conditions of confinement and did so with knowledge that the plaintiffs bore no ties to terrorism, thus satisfying Iqbal's pleading standard. See 556 U.S., at 679, 129 S.Ct. 1937 (claims must be "plausible"); see also id., at 699-700, 129 S.Ct. 1937 (BREYER, J., dissenting). And because it is clearly established that it is unconstitutional to subject detainees to punitive conditions of confinement and to target them based solely on their race, religion, or national origin, the defendants are not entitled to qualified immunity on the constitutional claims. See Bell v. Wolfish, 441 U.S. 520, 535539, and n. 20, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Davis, 442 U.S., at 236, 99 S.Ct. 2264 ("It is equally clear ... that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination"). (Similarly, I would affirm the judgment of the Court of Appeals with respect to the plaintiffs' statutory claim, namely, that the defendants conspired to deprive the plaintiffs of equal protection of the laws in violation of 42 U.S.C. § 1985(3). See Turkmen v. Hasty, 789 F.3d 218, 262-264 (C.A.2 2015). I agree with the Court of Appeals that the defendants are not entitled to qualified immunity on this claim. See ibid.)
2
Even were I wrong and were the context here "fundamentally different," Malesko,534 U.S., at 70, 122 S.Ct. 515 the plaintiffs' claims would nonetheless survive Step Two and Step Three of the Court's framework for determining whether Bivensapplies, see supra, at 18761877. Step Two consists of asking whether "any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie, 551 U.S., at 550, 127 S.Ct. 2588. I can find no such "alternative, existing process" here.
The Court does not claim that the PLRA provides plaintiffs with a remedy. Ante, at 18741875. Rather, it says that the plaintiffs may have "had available to them" relief in the form of a prospective injunction or an application for a writ of habeas corpus. Ante, at 1863. Neither a prospective injunction nor a writ of habeas corpus, however, will normally provide plaintiffs

with redress for harms they have alreadysuffered. And here plaintiffs make a strong claim that neither was available to them — at least not for a considerable time. Some of the plaintiffs allege that for two or three months they were subject to a "communications blackout"; that the prison "staff did not permit them visitors, legal or social telephone calls, or mail"; that their families and attorneys did not know where they were being held; that they could not receive visits from their attorneys; that subsequently their lawyers could call them only once a week; and that some or all of the defendants "interfered with the detainees' effective access to legal counsel." Office of Inspector General (OIG) Report, App. 223, 293, 251, 391; see App. to Pet. for Cert. in No. 15-1359, at 253a (incorporating the OIG report into the complaint). These claims make it virtually impossible to say that here there is an "elaborate, comprehensive" alternative remedial scheme similar to schemes that, 1880*1880 in the past, we have found block the application of Bivens to new contexts. Bush, 462 U.S., at 385, 103 S.Ct. 2404. If these allegations are proved, then in this suit, it is "damages or nothing." Bivens,403 U.S., at 410, 91 S.Ct. 1999 (Harlan, J., concurring in judgment).
There being no "alternative, existing process" that provides a "convincing reason" for not applying Bivens, we must proceed to Step Three. Wilkie, supra, at 550, 127 S.Ct. 2588. Doing so, I can find no "special factors [that] counse[l] hesitation before authorizing" this Bivens action. 551 U.S., at 550, 127 S.Ct. 2588. I turn to this matter next.
II
A
The Court describes two general considerations that it believes argue against an "extension" of Bivens. First, the majority opinion points out that the Court is now far less likely than at the time it decided Bivens to imply a cause of action for damages from a statute that does not explicitly provide for a damages claim. See ante, at 1855-1856. Second, it finds the "silence" of Congress "notable" in that Congress, though likely aware of the "high-level policies" involved in this suit, did not "choose to extend to any person the kind of remedies" that the plaintiffs here "seek." Ante, at 1861-1862 (internal quotation marks omitted). I doubt the strength of these two general considerations.
The first consideration, in my view, is not relevant. I concede that the majority and concurring opinions in Bivens looked in part for support to the fact that the Court had implied damages remedies from statutes silent on the subject. See 403 U.S., at 397, 91 S.Ct. 1999; id., at 402-403, 91 S.Ct. 1999 (Harlan, J., concurring in judgment). But that was not the main argument favoring the Court's conclusion. Rather, the Court drew far stronger support from the need for such a remedy when measured against a common-law and constitutional history of allowing traditional legal remedies where necessary. Id., at 392, 396-397, 91 S.Ct. 1999. The Court believed such a remedy was necessary to make effective the Constitution's protection of certain basic individual rights. See id., at 392, 91 S.Ct. 1999; id., at 407, 91 S.Ct. 1999 (opinion of Harlan, J.). Similarly, as the Court later explained, a damages remedy against federal officials prevented the serious legal anomaly I previously mentioned. Its existence made basic constitutional protections of the individual against Federal Government abuse (the Bill of Rights' pre-Civil War objective) as effective

as protections against abuse by state officials (the post-Civil War, post selectiveincorporation objective). See supra, at 1875.
Nor is the second circumstance — congressional silence — relevant in the manner that the majority opinion describes. The Court initially saw that silence as indicating an absence of congressional hostility to the Court's exercise of its traditional remedy-inferring powers. See Bivens, supra, at 397, 91 S.Ct. 1999; Davis, 442 U.S., at 246-247, 99 S.Ct. 2264. Congress' subsequent silence contains strong signs that it accepted Bivens actions as part of the law. After all, Congress rejected a proposal that would have eliminated Bivens by substituting the U.S. Government as a defendant in suits against federal officers that raised constitutional claims. See Pfander, Constitutional Torts, at 102. Later, Congress expressly immunized federal employees acting in the course of their official duties from tort claims except those premised on violations of the Constitution. See Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, 28 U.S.C. 1881*1881 § 2679(b)(2)(A). We stated that it is consequently "crystal clear that Congress views [the Federal Tort Claims Act] and Bivens as [providing] parallel, complementary causes of action." Carlson,446 U.S., at 20, 100 S.Ct. 1468; see Malesko, 534 U.S., at 68, 122 S.Ct. 515(similar). Congress has even assumed the existence of a Bivens remedy in suits brought by noncitizen detainees suspected of terrorism. See 42 U.S.C. § 2000dd-1 (granting qualified immunity — but not absolute immunity — to military and civilian federal officials who are sued by alien detainees suspected of terrorism).
B
The majority opinion also sets forth a more specific list of factors that it says bear on "whether a case presents a new Bivens context." Ante, at 1859. In the Court's view, a "case might differ" from Bivens "in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specificity of the individual action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; [7] or the presence of potential special factors that previous Bivens cases did not consider." Ante, at 1860. In my view, these factors do not make a "meaningful difference" at Step One of the Bivens framework. Some of them are better cast as "special factors" relevant to Step Three. But, as I see it, none should normally foreclose a Bivens action and none is determinative here. Consider them one by one:
(1) The rank of the officers. I can understand why an officer's rank might bear on whether he violated the Constitution, because, for example, a plaintiff might need to show the officer was willfully blind to a harm caused by lower ranking officers or that the officer had actual knowledge of the misconduct. And I can understand that rank might relate to the existence of a legal defense, such as qualified, or even absolute, immunity. But if — and I recognize that this is often a very big if — a plaintiff proves a clear constitutional violation, say, of the Fourth Amendment, andhe shows that the defendant does not possess any form of immunity or other defense, then why should he not have a damages remedy for harm suffered? What does rank have to do with that question, namely, the Bivens question? Why should the law treat differently a high-level official and the local constable where each has

similarly violated the Constitution and where neither can successfully assert immunity or any other defense?
(2) The constitutional right at issue. I agree that this factor can make a difference, but only when the substance of the right is distinct. See, e.g., Wilkie, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (land rights). But, for reasons I have already pointed out, there is no relevant difference between the rights at issue here and the rights at issue in our previous Bivens cases, namely, the rights to be free of unreasonable searches, invidious discrimination, and physical abuse in federal custody. See supra, at 1877-1878.
(3) The generality or specificity of the individual action. I should think that it is not the "generality or specificity" of an official action but rather the nature of the official action that matters. Bivens should apply to some generally applicable actions, such as actions taken deliberately to jail a large group of known-innocent people. And it should not apply to some highly 1882*1882 specific actions, depending upon the nature of those actions.
(4) The extent of judicial guidance. This factor may be relevant to the existence of a constitutional violation or a qualified-immunity defense. Where judicial guidance is lacking, it is more likely that a constitutional violation is not clearly established. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (Officials are protected by qualified immunity unless "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right"). But I do not see how, assuming the violation is clear, the presence or absence of "judicial guidance" is relevant to the existence of a damages remedy.
(5) The statutory (or other) legal mandate under which the officer was operating.This factor too may prove relevant to the question whether a constitutional violation exists or is clearly established. But, again, assuming that it is, I do not understand why this factor is relevant to the existence of a damages remedy. See Stanley, 483 U.S., at 684, 107 S.Ct. 3054 (the question of immunity is "analytically distinct" from the question whether a Bivens action should lie).
(6) Risk of disruptive judicial intrusion. All damages actions risk disrupting to some degree future decisionmaking by members of the Executive or Legislative Branches. Where this Court has authorized Bivens actions, it has found that disruption tolerable, and it has explained why disruption is, from a constitutional perspective, desirable. See Davis, 442 U.S., at 242, 99 S.Ct. 2264 (Unless constitutional rights "are to become merely precatory,... litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for ... protection"); Malesko, supra, at 70, 122 S.Ct. 515 ("The purpose of Bivens is to deter individual federal officers from committing constitutional violations"). Insofar as the Court means this consideration to provide a reason why there should be no Bivens action where a Government employee acts in time of security need, I shall discuss the matter next, in Part C.
(7) Other potential special factors. Since I am not certain what these other "potential factors" are and, since the Court does not specify their nature, I would not, and the Court cannot,

consider them in differentiating this suit from our previous Bivens cases or as militating against recognizing a Bivens action here.
C
In my view, the Court's strongest argument is that Bivens should not apply to policy-related actions taken in times of national-security need, for example, during war or national-security emergency. As the Court correctly points out, the Constitution grants primary power to protect the Nation's security to the Executive and Legislative Branches, not to the Judiciary. But the Constitution also delegates to the Judiciary the duty to protect an individual's fundamental constitutional rights. Hence when protection of those rights and a determination of security needs conflict, the Court has a role to play. The Court most recently made this clear in cases arising out of the detention of enemy combatants at Guantanamo Bay. Justice O'Connor wrote that "a state of war is not a blank check." Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion). In Boumediene, 553 U.S., at 732-733, 128 S.Ct. 2229 the Court reinforced that point, holding that noncitizens detained as enemy combatants 1883*1883were entitled to challenge their detention through a writ of habeas corpus, notwithstanding the national-security concerns at stake.
We have not, however, answered the specific question the Court places at issue here: Should Bivens actions continue to exist in respect to policy-related actions taken in time of war or national emergency? In my view, they should.
For one thing, a Bivens action comes accompanied by many legal safeguards designed to prevent the courts from interfering with Executive and Legislative Branch activity reasonably believed to be necessary to protect national security. In Justice Jackson's well-known words, the Constitution is not "a suicide pact." Terminiello v. Chicago, 337 U.S. 1, 37, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (dissenting opinion). The Constitution itself takes account of public necessity. Thus, for example, the Fourth Amendment does not forbid all Government searches and seizures; it forbids only those that are "unreasonable." Ordinarily, it requires that a police officer obtain a search warrant before entering an apartment, but should the officer observe a woman being dragged against her will into that apartment, he should, and will, act at once. The Fourth Amendment makes allowances for such "exigent circumstances." Brigham City v. Stuart, 547 U.S. 398, 401, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (warrantless entry justified to forestall imminent injury). Similarly, the Fifth Amendment bars only conditions of confinement that are not "reasonably related to a legitimate governmental objective." Bell v. Wolfish, 441 U.S., at 539, 99 S.Ct. 1861. What is unreasonable and illegitimate in time of peace may be reasonable and legitimate in time of war.
Moreover, Bivens comes accompanied with a qualified-immunity defense. Federal officials will face suit only if they have violated a constitutional right that was "clearly established" at the time they acted. Harlow, 457 U.S., at 818, 102 S.Ct. 2727.
Further, in order to prevent the very presence of a Bivens lawsuit from interfering with the work of a Government official, this Court has held that a complaint must state a claim for relief that is "plausible." Iqbal, 556 U.S., at 679, 129 S.Ct. 1937. "[C]onclusory" statements

and "[t]hreadbare" allegations will not suffice. Id., at 678, 129 S.Ct. 1937. And the Court has protected high-level officials in particular by requiring that plaintiffs plead that an official was personally involved in the unconstitutional conduct; an official cannot be vicariously liable for another's misdeeds. Id., at 676, 129 S.Ct. 1937.
Finally, where such a claim is filed, courts can, and should, tailor discovery orders so that they do not unnecessarily or improperly interfere with the official's work. The Second Circuit has emphasized 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." Iqbal v. Hasty, 490 F.3d 143, 158 (2007). 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" not only "may, but `must exercise its discretion in a way that protects the substance of the qualified immunity defense ... so that'" those officials "`are not subjected to unnecessary and burdensome discovery or trial proceedings.'" Id., at 158-159. The court can make "all such discovery subject to prior court approval." Id., at 158. It can "structure ... limited discovery by examining written responses to interrogatories and requests to admit before authorizing 1884*1884 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." Ibid. In a word, a trial court can and should so structure the proceedings with full recognition that qualified immunity amounts to immunity from suit as well as immunity from liability.
Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the Court's abolition, or limitation of, Bivensactions goes too far. If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.
At the same time, there may well be a particular need for Bivens remedies when securityrelated Government actions are at issue. History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights. We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War I. See W. Rehnquist, All the Laws but One: Civil Liberties in Wartime 209210, 49-50, 173-180, 183 (1998); see also Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866) (decided after the Civil War was over). The pages of the U.S. Reports themselves recite this Court's refusal to set aside the Government's World War II action removing more than 70,000 American citizens of Japanese origin from their west coast homes and interning them in camps, see Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) — an action that at least some officials knew at the time was unnecessary, see id., at 233-242, 65 S.Ct. 193 (Murphy, J., dissenting); P. Irons, Justice at War 202-204, 288 (1983). President Franklin Roosevelt's Attorney General, perhaps exaggerating, once said that "[t]he Constitution has not greatly bothered any wartime President." Rehnquist, supra, at 191.
Can we, in respect to actions taken during those periods, rely exclusively, as the Court seems to suggest, upon injunctive remedies or writs of habeas corpus, their retail

equivalent? Complaints seeking that kind of relief typically come during the emergency itself, when emotions are strong, when courts may have too little or inaccurate information, and when courts may well prove particularly reluctant to interfere with even the least wellfounded Executive Branch activity. That reluctance may itself set an unfortunate precedent, which, as Justice Jackson pointed out, can "li[e] about like a loaded weapon" awaiting discharge in another case. Korematsu, supra, at 246, 65 S.Ct. 193 (dissenting opinion).
A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available. In such circumstances, courts have more time to exercise such judicial virtues as calm reflection and dispassionate application of the law to the facts. We have applied the Constitution to actions taken during periods of war and national-security emergency. See Boumediene, 553 U.S., at 732-733, 128 S.Ct. 2229; Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). I should think that the wisdom of permitting courts to consider Bivensactions, later granting monetary compensation to those wronged at the time, would follow a fortiori.
1885*1885 As is well known, Lord Atkins, a British judge, wrote in the midst of World War II that "amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace." Liversidge v. Anderson,[1942] A.C. 206 (H.L. 1941) 244. The Court, in my view, should say the same of this Bivens action.
With respect, I dissent.
[*] The syllabus constitutes no part of the opinion of the Court has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
[*] Although we first formulated the "clearly established" standard in Bivens cases like Harlow and Anderson, we have imported that standard directly into our 1871 Act cases. See, e.g., Pearson v. Callahan, 555 U.S. 223, 243-244, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (applying the clearly established standard to a § 1983 claim).

 </s> U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:02−cv−02307−DLI−SMG

MAGAPP

Turkmen et al v. Ashcroft et al Assigned to: Chief Judge Dora Lizette Irizarry Referred to: Chief Mag. Judge Steven M. Gold Demand: $0 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/17/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Ibrahim Turkmen

represented by Nancy Chang Center For Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 212.614.6420 Fax: 212.614.6470 Email: nchang@ccr−ny.org TERMINATED: 02/28/2005 LEAD ATTORNEY

Rachel Anne Meeropol Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 212−614−6432 Fax: 212−614−6499 Email: rachelm@ccr−ny.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander A. Reinert c/o Benjamin N. Cardozo School of Law 55 Fifth Avenue Room 938 New York, NY 10003 212−790−0403 Fax: 212−790−0805 Email: areinert@yu.edu ATTORNEY TO BE NOTICED

Barbara J. Olshansky Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212−614−6439 Fax: 212−614−6499 TERMINATED: 04/08/2005

Jennifer M. Green Center For Constitutional Rts. 666 Broadway, 7th Floor New York, NY 10012 212−614−6431 Fax: 212−614−6499 ATTORNEY TO BE NOTICED

Joanne Sum−Ping Covington & Burling LLP The New York Times Building 620 Eighth Avenue

Plaintiff Asif−Ur−Rehman Saffi

New York, NY 10018 212−841−1000 Fax: 212−841−1010 Email: jsumping@cov.com TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick Covington & Burling 1330 Avenue of the Americas New York, NY 10019 (212)841−1116 Fax: (646)441−9116 ATTORNEY TO BE NOTICED
Matthew D. Strugar Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212−614−6478 Fax: 212−614−6499 Email: mstrugar@ccr−ny.org ATTORNEY TO BE NOTICED
Michael Winger Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 212−614−6432 Fax: 212−614−6499 Email: michael1winger@gmail.com ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012−2399 (212) 614−6438 Fax: 212−614−6499 Email: kadidal@ccr−ny.org ATTORNEY TO BE NOTICED
Stephanie Yu Covington & Burling 1330 Avenue of the Americas New York, NY 10019 (212) 841−1048 ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Syed Amjad Ali Jaffri on behalf of themselves and all others similarly situated

Barbara J. Olshansky (See above for address) TERMINATED: 04/08/2005
Jennifer M. Green (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) ATTORNEY TO BE NOTICED
Stephanie Yu (See above for address) ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Barbara J. Olshansky (See above for address) TERMINATED: 04/08/2005
Jennifer M. Green (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address)

Plaintiff Akil Sachveda

ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) ATTORNEY TO BE NOTICED
Stephanie Yu (See above for address) ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Barbara J. Olshansky (See above for address) TERMINATED: 04/08/2005
Jennifer M. Green (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) ATTORNEY TO BE NOTICED
Stephanie Yu (See above for address)

Plaintiff Shakir Baloch
Plaintiff Hany Ibrahim

ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Barbara J. Olshansky (See above for address) TERMINATED: 04/08/2005
Jennifer M. Green (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) ATTORNEY TO BE NOTICED
Stephanie Yu (See above for address) ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yasser Ebrahim

Barbara J. Olshansky (See above for address) TERMINATED: 04/08/2005
Jennifer M. Green (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) ATTORNEY TO BE NOTICED
Stephanie Yu (See above for address) ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Barbara J. Olshansky (See above for address) TERMINATED: 04/08/2005
Jennifer M. Green (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address)

Plaintiff Ashraf Ibrahim
Plaintiff akhil sachdeva

ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Shayana Devendra Kadidal (See above for address) ATTORNEY TO BE NOTICED
Stephanie Yu (See above for address) ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018 ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
represented by Nancy Chang (See above for address) TERMINATED: 02/28/2005 LEAD ATTORNEY
Rachel Anne Meeropol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
Joanne Sum−Ping (See above for address) TERMINATED: 08/14/2018

V. Intervenor Plaintiff Ahmer Abbasi
Intervenor Plaintiff Anser Mehmood
Intervenor Plaintiff Benamar Benatta
Intervenor Plaintiff Ahmed Khalifa
Intervenor Plaintiff Saeed Hammouda

ATTORNEY TO BE NOTICED
Kimberly Helene Zelnick (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Strugar (See above for address) ATTORNEY TO BE NOTICED
Michael Winger (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Purna Bajracharya
V. Defendant John Ashcroft Attorney General of the United States TERMINATED: 04/11/2013

represented by Michael Winger (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) ATTORNEY TO BE NOTICED
represented by Brian D Miller Office of the U.S. Attorney, E.D. Va. Civil Division 2100 Jamieson Avenue Alexandria, VA 22314 703−299−3809 Fax: 703−299−3983 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis C. Barghaan Office of the United States Attorney, VAED Civil Division 2100 Jamieson Avenue Alexandria, VA 22314 703−299−3700 Fax: 703−299−3983 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernesto H. Molina U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044 202−616−9344 Fax: 202−616−4975 Email: ernesto.h.molina@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jo C. Bennett McDaniel, Bennett & Griffin 118 West Mulberry Street Baltimore, MD 21201 410−685−3810 TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry L Gregg Office of the U.S. Attorney, E.D. Va. Civil Divison 2100 Jamieson Avenue Alexandria, Va 22314 (703) 299−3700 Fax: 703−299−3983 Email: larry.gregg@usdoj.gov TERMINATED: 09/21/2010

Defendant
Robert Mueller Director, Federal Bureau of Investigations TERMINATED: 04/11/2013

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard W Sponseller Office of the U.S. Attorney, E.D. Va Civil Division 2100 Jamieson Avenue Alexandria, VA 22314 (703) 299−3700 Fax: 703−299−3983 Email: richard.sponseller@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Alden McDaniel , Jr. Ballard Spahr, LLP 300 East Lombard Street 18th Floor Baltimore, MD 21202 410−528−5502 Fax: 410−528−5650 Email: mcdanielw@ballardspahr.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Craig Lawrence U.S. Attorney's Office, D.D.C. 555 4th Street NW Washington, DC 20001 (202) 514−7151 Email: craig.lawrence@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernesto H. Molina (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jo C. Bennett (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Craig Lawrence United States Attorneys Office District of Colombia 555 Fourth St. N.W. Washington, DC 20530 202−514−7151 Fax: 202−514−8780 Email: craig.lawrence@usdoj.gov LEAD ATTORNEY
William Alden McDaniel , Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant James W. Ziglar Commissioner, Immigration and Naturalization Service TERMINATED: 04/11/2013
Defendant Warden Dennis Hasty former Warden of the Metropolitan Detention Center(MDC)

represented by Ernesto H. Molina (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jo C. Bennett (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Alden McDaniel , Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bassel Bakhos Law Office of William Alden McDaniel, Jr. 118 West Mulberry Street Baltimore, MD 21201 410−685−3810 Fax: 410−685−0203 Email: bb@wamcd.com ATTORNEY TO BE NOTICED
represented by Ernesto H. Molina (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jo C. Bennett (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael L. Martinez Crowell & Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004−2595 202−624−2945 Fax: 202−628−5116 TERMINATED: 06/03/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shari Ross Lahlou Crowell & Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004−2595 202−624−2500 Email: slahlou@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Alden McDaniel , Jr. (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Clifton Elgarten Crowell & Moring LLP 1001 Pennsylvania Ave Nw Washington, DC 20004 202−624−2500 Fax: 202−628−5116 Email: celgarten@crowell.com PRO HAC VICE ATTORNEY TO BE NOTICED
David E. Bell Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 202−624−2500 Fax: 202−628−5116 TERMINATED: 03/28/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh Sandler Nussbaum Law Group, P.C. 1211 Avenue of the Americas, 40th Fl. New York, NY 10036 (917) 438−9201 Email: hsandler@nussbaumpc.com TERMINATED: 12/01/2017 ATTORNEY TO BE NOTICED
Joanne Rose Oleksyk Crowell & Moring LLP 590 Madison Avenue 20th Floor New York, NY 11105 212−803−4039 Fax: 212−223−3124 Email: joleksyk@crowell.com ATTORNEY TO BE NOTICED
Justin P. Murphy Crowell & Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004−2595 202−624−2536 Fax: 202−628−5116 Email: justin.murphy@crowell.com TERMINATED: 12/01/2017 ATTORNEY TO BE NOTICED
Kyler Smart Crowell & Moring LLP 1001 Pennsylvania Avenue NW Washington, DC 20004 202−624−2906 Fax: 202−628−5116 Email: ksmart@crowell.com TERMINATED: 12/01/2017 ATTORNEY TO BE NOTICED
Matthew Scarlato Crowell & Moring LLP 1001 Pennsylvania Avenue, N.W.

Defendant John Does 1−20 MDC Corrections Officers
Defendant John Roes 1−20 Federal Bureau of Investigation and/or Immigration and Naturalization Service Agents TERMINATED: 09/13/2004
Defendant Michael Zenk Warden of the Metropolitan Detention Center TERMINATED: 02/27/2018

Washington, DC 20004−2595 (202) 628−5116 Email: mscarlato@crowell.com TERMINATED: 12/01/2017 ATTORNEY TO BE NOTICED
represented by Jo C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Alden McDaniel , Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jo C. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Alden McDaniel , Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allan Noel Taffet Duval & Stachenfeld LLP 101 Park Avenue 11th Floor New York, NY 10178 212−883−1700 Fax: 212−883−8883 Email: ataffet@dsllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernesto H. Molina (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jo C. Bennett (See above for address) TERMINATED: 09/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua C. Klein Duval & Stachenfeld LLP 555 Madison Avenue 6th Flor New York, NY 10022 212−883−1700 Fax: 212−883−8883 Email: jklein@dsllp.com LEAD ATTORNEY

Defendant Christopher Witschel MDC Correctional Officer TERMINATED: 12/14/2007
Defendant James Sherman TERMINATED: 02/27/2018

ATTORNEY TO BE NOTICED
William Alden McDaniel , Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John B. Saville Lewis, Johs, Avallone, Aviles & Kaufman, LLP 425 Broadhollow Road, Suite 400 Melville, NY 11747 631−755−0101 Fax: 631−755−0117 Email: jbsaville@lewisjohs.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Debra L. Roth Shaw, Bransford & Roth, PC 1100 Connecticut Avenue Suite 900 Washington, DC 20036 202−463−8400 Fax: 202−833−8082 Email: droth@shawbransford.com PRO HAC VICE ATTORNEY TO BE NOTICED
Julia H. Perkins Shaw Bransford & Roth 1100 Connecticut Avenue Nw Suite 900 Washington, DC 20036 202−463−8400 Fax: 202−833−8082 Email: jperkins@shawbransford.com ATTORNEY TO BE NOTICED
Justin Vaun Shur Molo Lamken LLP 540 Madison Avenue New York, NY 10022 212−607−8160 Fax: 212−607−8161 Email: jshur@mololamken.com PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas M. Sullivan United States Attorneys Office Eastern District of New York 610 Federal Plaza Central Islip, NY 11722 (631) 715−7865 Fax: (631) 715−7920 Email: thomas.sullivan@usdoj.gov TERMINATED: 01/22/2009 ATTORNEY TO BE NOTICED

Defendant Unit Manager Clemett Shacks MDC Counselor
Defendant Brian Rodriguez MDC Correctional Officer Defendant Jon Osteen MDC Correctional Officer
Defendant Raymond Cotton MDC Counselor
Defendant William Beck MDC Lieutenant

represented by Barry M. Lasky Lasky & Steinberg PC 595 Stewart Avenue Suite 410 Garden City, NY 11530 516−227−0808 Fax: 516−745−0969 Email: bmlpc@aol.com ATTORNEY TO BE NOTICED
represented by David A Koenigsberg Menz Bonner Komar & Koenigsberg LLP 444 Madison Avenue, 39th Floor New York, NY 10022 212−223−2100 Fax: 212−223−2185 Email: dkoenigsberg@mbkklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Kelly Driscoll Menz Bonner Komar & Koenigsberg LLP 444 Madison Avenue, 39th Floor New York, NY 10022 212−223−2100 Fax: 212−223−2185 Email: mdriscoll@mbklawyers.com ATTORNEY TO BE NOTICED
represented by Nicholas Gregory Kaizer Levitt & Kaizer 40 Fulton Street, 23rd Floor New York, NY 10038−5077 212 480−4000 Fax: 212 480−4444 Email: nkaizer@richardlevitt.com ATTORNEY TO BE NOTICED
Yvonne Shivers Levitt & Kaizer 40 Fulton Street 23rd Floor New York, NY 10038 212−480−4000 Email: rlevitt@landklaw.com ATTORNEY TO BE NOTICED
represented by William Beck 145 North Laurel Street Hazleton, PA 18201 (570)578−9145 Email: whbeck@msn.com PRO SE
James G. Ryan

Defendant Salvatore LoPresti MDC Captain
Defendant Steven Barrere MDC Lieutenant
Defendant Lindsey Bledsoe MDC Lieutenant
Defendant Joseph Cuciti MDC Lieutenant

Cullen and Dykman, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 (516) 357−3700 Fax: (516) 296−9155 Email: jryan@cullenanddykman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Goldman 73 Spring Street Suite 402 New York, NY 10012 TERMINATED: 05/24/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Keefe 1225 Franklin Avenue Ste 325 Garden City, NY 11530 516−495−7934 Fax: 516−908−7961 Email: james@jamesjkeefepc−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James G. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Labe M. Richman Labe M. Richman, Attorney at Law 305 Broadway Suite 100 New York, NY 10007 (212) 227−1914 Fax: (212) 267−2129 Email: labe@laberichman.com ATTORNEY TO BE NOTICED
represented by James J. Keefe (See above for address) LEAD ATTORNEY
Alan E. Wolin Wolin & Wolin, Esqs. 420 Jericho Turnpike Suite 215 Jericho, NY 11753 516−938−1199 Fax: 516−938−1178 Email: wolinlaw@aol.com TERMINATED: 10/20/2010 ATTORNEY TO BE NOTICED
Jerold D. Wolin

Defendant Lieutenant Howard Gussak MDC Lieutenant
Defendant Lieutenant Marcial Mundo MDC Lieutenant
Defendant Daniel Ortiz MDC Lieutenant Defendant Stuart Pray MDC Lieutenant

Wolin & Wolin 420 Jericho Turnpike Suite 215 Jericho, NY 11753 (516) 938−1199 Fax: (516)938−1178 Email: wolinlaw@aol.com TERMINATED: 10/20/2010 ATTORNEY TO BE NOTICED
represented by Kenneth Charles Murphy Simon & Partners LLP 30 Rockefeller Plaza, 42nd Floor New York, NY 10112 212−332−8900 Fax: 212−332−8909 Email: kcmurphy@simonlawyers.com ATTORNEY TO BE NOTICED
Laura L Nagel Simon & Partners LLP 30 Rockefeller Plaza 42nd Floor New York, NY 10112 212−332−8900 Fax: 212−332−8909 TERMINATED: 06/28/2006 ATTORNEY TO BE NOTICED
represented by James F. Matthews Matthews & Matthews 191 New York Avenue Huntington, NY 11743 631−673−7555 Fax: 631−425−7030 Email: jmatthewslaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Gerard Teresky Thomas G. Teresky 191 New York Ave Huntington, NY 11743 631−673−7555 Fax: 631−425−7030 Email: tgtesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Peter Caro Richard P. Caro, J.D. 111 Groveland Avenue Riverside, IL 60546 708−447−0721 Fax: 708−447−0757

Defendant Elizabeth Torres MDC Lieutenant
Defendant Phillip Barnes MDC Correctional Officer Defendant Sydney Chase MDC Correctional Officer
Defendant Michael Defrancisco MDC Correctional Officer Defendant Richard Diaz MDC Correctional Officer Defendant Kevin Lopez MDC Correctional Officer
Defendant Mario Machado MDC Correctional Officer Defendant Michael McCabe MDC Correctional Officer

Email: rpcjd@ameritech.net ATTORNEY TO BE NOTICED
represented by Linda Cronin Cronin & Byczek LLP 707 Westchester Avenue Suite 411 White Plains, NY 10604 516−358−1700 Fax: 516−654−6217 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Raymond P. Cash 116−02 Queens Blvd Forest Hills, NY 11375 718−793−1331 Fax: 718−793−4089 Email: crcash1@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Susan M. D'Ambrosio Law Offices of Raymond Cash, P.C. 118−21 Queens Boulevard Suite 309 Forest Hills, NY 11375 718−793−7331 Fax: 718−518−7680 Email: su10sju@gmail.com ATTORNEY TO BE NOTICED
represented by Michael McCabe 4225 Centurian Circle Greenacres, FL 33463

Defendant Raymond Mickens MDC Correctional Officer
Defendant Scott Rosebery MDC Correctional Officer Defendant Cuffee MDC Counselor Defendant United States of America

(561) 889−9082 PRO SE
represented by E. Michael Rosenstock Law Offices of E. Michael Rosenstock, P.C. 55 Maple Avenue Suite 206 Rockville Centre, NY 11570 516−766−7600 Fax: 516−766−6630 Email: emrosenstock@rosenstocklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ernesto H. Molina U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, DC 20044 202−616−9344 Fax: 202−616−4975 Email: ernesto.h.molina@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armelle Nina VanDorp United States Department of Justice 1331 Pennsylvania Ave NW, Suite 8080n Washington, DC 20004 202−514−0130 Fax: 202−616−5200 ATTORNEY TO BE NOTICED
Paul David Stern United States Department of Justice 1331 Pennsylvania Avenue, NW Room 8020n Washington, DC 20004 202−616−2197 Fax: 202−616−5200 Email: paul.david.stern@usdoj.gov ATTORNEY TO BE NOTICED
Stephen E. Handler U.S. Department of Justice Torts Branch, Civil Division Benjamin Franklin Station P.O. Box 888 Washington, DC 20044 (202) 616−4279 Fax: 202−616−5200 Email: Stephen.Handler@usdoj.gov

Defendant James Cuffee
V. Respondent Ashraf Ibrahim Intervenor Omer Gavriel Marmari
Intervenor Yaron Shmuel
Intervenor Paul Kurzberg
Intervenor Silvan Kurzberg
Intervenor Javaid Iqbal

ATTORNEY TO BE NOTICED
Tabitha Justice Department of Justice 1331 Pennsylvania Ave, NW Room 8004n Washington, DC 20004 202−514−1067 Fax: 202−616−6200 Email: tabitha.justice@usdoj.gov TERMINATED: 05/18/2010 ATTORNEY TO BE NOTICED
represented by Mehrdad Kohanim Law Office of Mehrdad Kohanim 595 Stewart Avenue Suite 410 Garden City, NY 11530 516−745−1242 Fax: 516−745−1244 Email: mehrdadkoh@aol.com ATTORNEY TO BE NOTICED
represented by Robert Joseph Tolchin The Berkman Law Office, LLC 111 Livingston Street Ste. 1928 Brooklyn, NY 11201 718−855−3627 Email: rtolchin@berkmanlaw.com ATTORNEY TO BE NOTICED
represented by Robert Joseph Tolchin (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Joseph Tolchin (See above for address) ATTORNEY TO BE NOTICED
represented by Robert Joseph Tolchin (See above for address) ATTORNEY TO BE NOTICED
represented by Haeyoung Yoon The Urban Justice Center 123 William Street 16th Floor New York, NY 10038 646−459−3003

Intervenor Ehab Elmaghraby
Intervenor Irum E. Shiekh
Cross Claimant Elizabeth Torres MDC Lieutenant TERMINATED: 01/14/2005
V. Cross Defendant United States of America Cross Claimant Jon Osteen MDC Correctional Officer
V.

Fax: 212−533−4598 Email: hyoon@urbanjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert Koob & Magoolaghan 221 Devoe Avenue Yonkers, NY 10705 914−964−8888 Fax: 914−964−8801 Email: aar@kmlaw−ny.com ATTORNEY TO BE NOTICED
represented by Haeyoung Yoon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Douglas Steger Steger Krane LLP Two Crosfield Avenue Suite 210 West Nyack, NY 10994 845−727−1750 Fax: 845−689−2155 Email: msteger@steger−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Rocco G. Avallone Cronin & Byczek, LLP 1983 Marcus Avenue Suite C120 Lake Success, NY 11042 516−358−1700 Fax: 516−358−1730 Email: ravallone@cblawyers.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David A Koenigsberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant United States of America TERMINATED: 01/14/2005 Cross Claimant Michael Defrancisco MDC Correctional Officer
V. Cross Defendant United States of America Cross Claimant Richard Diaz MDC Correctional Officer
V. Cross Defendant United States of America Cross Claimant Mario Machado MDC Correctional Officer
V. Cross Defendant United States of America Cross Claimant Brian Rodriguez MDC Correctional Officer
V. Cross Defendant United States of America Cross Claimant Scott Rosebery MDC Correctional Officer
V.

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant United States of America
Cross Claimant Stuart Pray MDC Lieutenant

V. Cross Defendant United States of America

Date Filed 04/17/2002
04/23/2002 04/23/2002
06/14/2002 06/19/2002 06/25/2002 07/03/2002 07/27/2002 08/05/2002 08/14/2002 08/14/2002

# Docket Text
1 Complaint filed and summons issued as to defendant(s) John Ashcroft, Dennis Hasty, John Does 1−10, Robert Mueller, James W. Ziglar. Filing fee $150.00. Receipt number: 260540.. Filed by Barbara J. Olshansky on behalf of Syed Amjad Ali Jaffri, Asif−Ur−Rehman Saffi, Ibrahim Turkmen. (Attachments: # 1 Civil Cover Sheet)(Bowens, Priscilla) (Entered: 04/17/2002)
2 SUMMONS Returned Executed by Ibrahim Turkmen. John Ashcroft served on 4/17/2002, answer due 5/7/2002 filed by Barbara J. Olshansky on behalf of Ibrahim Turkmen. (DiLorenzo, Krista) (Entered: 04/23/2002)
3 SUMMONS Returned Executed by Ibrahim Turkmen. John Ashcroft served on 4/22/2002, answer due 5/13/2002; Dennis Hasty served on 4/22/2002, answer due 5/13/2002; Robert Mueller served on 4/22/2002, answer due 5/13/2002; James W. Ziglar served on 4/22/2002, answer due 5/13/2002 filed by Barbara J. Olshansky on behalf of Ibrahim Turkmen. (DiLorenzo, Krista) (Entered: 04/23/2002)
5 Letter dtd 6/13/02 from Timothy P. Garren on behalf of dfts to Judge Gleeson requesting a pre−motion conf. (Latka−Mucha, Wieslawa) (Entered: 06/20/2002)
4 Endorsed order signed by Judge Gleeson on 6/18/02 granting pltf's request tp extend time to submit a response to Timothy Garren's letter dated 6/13/02. A pre−motion conf. will be held on 7/9/02 at 4:30. C/M. (DiLorenzo, Krista) (Entered: 06/19/2002)
6 Letter dated 6/18/02 by Nancy Chang requesting a extension of time to submit a response to Garren's letter dated 6/13/02. (DiLorenzo, Krista) (Entered: 06/25/2002)
7 Letter dtd 6/25/02 from pltfs' counsel William Goodman to Judge Gleeson submitting their objections to the substance of Timothy Garren's letter to the Court of 6/13/02, and advising the Court of their intention to file and amended complaint. (Latka−Mucha, Wieslawa) (Entered: 07/03/2002)
8 Amended complaint. Filed by Barbara J. Olshansky on behalf of Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebraheim, Syed Amjad Ali Jaffri, Asif−Ur−Rehman Saffi, Ibrahim Turkmen. (Related document(s) 1 ) (DiLorenzo, Krista) (Entered: 07/31/2002)
9 Letter from Timothy Garren to Judge Gleeson requesting leave to exceed the 25 page limit and an extension of time to serve the dfs' motion to dismiss to 8/9/02. (DiLorenzo, Krista) (Entered: 08/05/2002)
10 Endorsed Order signed by Judge Gleeson on 7/30/02 granting dfts' request leave to exceed the 25 page limit and an extension of time to serve the dfs' motion to dismiss to 8/26/02. See letter dtd 7/29/02 from Timothy Garren to Judge Gleeson. Copies faxed by Chambers on 8/1/02. (Latka−Mucha, Wieslawa) (Entered: 08/14/2002)
11 Endorsed Order signed by Judge Gleeson granting pltfs' application. Reply papers, if any: 10/22/02. Reply brief shall not exceed 25 pages. Oral argument: 11/15/02 @ 10:00 am. See letter dtd 7/29/02 from pltfs' counsel Nancy Chang to Judge Gleeson. Copies faxed by Chambers on 8/1/02. (Latka−Mucha, Wieslawa) (Entered: 08/14/2002)

09/24/2002
10/25/2002 11/01/2002 11/12/2002 12/19/2002 02/19/2003 04/02/2003 05/13/2003 06/09/2003
06/10/2003 06/11/2003 06/11/2003 06/11/2003 06/11/2003 06/13/2003
06/18/2003

12 Order; endorsed on letter dated 9/18/2 from Nancy Chang, Esq. to Judge Gleeson granting application for an extension of the deadline for pltff's brief in opposition to the motion to dismiss. Reply papers due 11/15/02; Oral argument set for 12/13/02 @ 10:00 a.m. So Ordered. Signed Judge John Gleeson. c/m−ch (Lee, Tiffeny) Modified on 9/24/2002 (Lee, Tiffeny). (Entered: 09/24/2002)
13 Endorsed order signed by Judge Gleeson on 10/23/02 granting pltfs' request to extend time to file pltfs' brief on 10/29/02 and dfts' brief due on 11/19/02. C/M by Chambers. (DiLorenzo, Krista) (Entered: 10/25/2002)
14 Letter dated 10/30/02 from Nancy Chang to Timothy Garren, enclosing a copy of pltfs' papers in opposition to dfts' motion to dismiss. W/O enclosures. (DiLorenzo, Krista) (Entered: 11/01/2002)
15 ENDORSED ORDER signed by Judge John Gleeson, undated granting dfts' request to extend time to file the reply memorandum to 11/26/02. Argument set for 12/19/02 at 2:30. Copies faxed by Chambers on 11/8/02.(DiLorenzo, Krista) (Entered: 11/12/2002)
16 Minute Entry for proceedings held before John Gleeson: Conference for motion of dismissal held on 12/19/2002. Counsel for all sides present. Decision reserved. (Noh, Kenneth) (Entered: 12/20/2002)
17 ORDER signed by Judge John Gleeson on 2/14/03 directing pltfs. to submit a letter simply informing the Court whether they are pursuing the claim. C/M by Chambers.(DiLorenzo, Krista) (Entered: 02/19/2003)
18 Letter dated 3/27/03 from Nancy Chang to Judge Gleeson, in response to dfts' letter dated 3/27/03. (DiLorenzo, Krista) (Entered: 04/02/2003)
19 Letter dated 5/5/03 from Timothy Garren to Judge Gleeson, advising the court of a recent opinion of the United States Supreme Court. (DiLorenzo, Krista) (Entered: 05/13/2003)
20 ORDER signed by Judge John Gleeson on 6/3/03 permitting pltfs. to submit a letter discussing how a report of the Dept. of Justice's Office of the Inspector General relates to this case no later than 6/5/03. If the government wishes to discuss the assertion further in response to pltfs' submission, it may do so in a letter, provided that the letter does not exceed four pages and is submitted no later than 6/9/03. Copies faxed by Chambers. (DiLorenzo, Krista) (Entered: 06/09/2003)
21 Letter dated 6/2/03 from Robert D. McCallum, Jr. to Judge Gleeson notfying the court of a report issued by the Dept. of Justice's Office of the Inspector General. (DiLorenzo, Krista) (Entered: 06/10/2003)
23 MOTION for Leave to Appear pro hac vice for Jo C. Bennett, Esq. by John Ashcroft, Dennis Hasty, John Does 1−20, Robert Mueller, John Roes 1−20, Michael Zenk, James W. Ziglar. (DiLorenzo, Krista) (Entered: 06/17/2003)
24 ORDER granting 23 Motion for Leave to Appear pro hac vice for Jo C. Bennett, Esq. Signed by JudgeJohn Gleeson on 6/12/03. Receipt # 278845. C/M. (DiLorenzo, Krista) (Entered: 06/17/2003)
25 MOTION for Leave to Appear pro hac vice for William Alden McDaniel, Jr. by John Ashcroft, Dennis Hasty, John Does 1−20, Robert Mueller, John Roes 1−20, Michael Zenk, James W. Ziglar. (DiLorenzo, Krista) (Entered: 06/17/2003)
26 ORDER granting 25 Motion for Leave to Appear pro hac vice for William Alden McDaniel, Jr. Signed by JudgeJohn Gleeson on 6/12/03. C/M. (DiLorenzo, Krista) (Entered: 06/17/2003)
22 ORDER signed by Judge John Gleeson on 6/12/03: Pltfs. shall avoid unnecessary new allegations; second amended complaint shall be served and filed on 6/18/03; dfts' supplemental memorandum or memoranda in support of their pending motion to dismiss due on 7/2/03; pltfs' opposition due on 7/9/03; dfts' reply due on 7/16/03. Copies faxed by Chambers on 6/12/03.(DiLorenzo, Krista) (Entered: 06/13/2003)
28 AMENDED COMPLAINT (Second) against John Ashcroft, Dennis Hasty, John Does 1−20, Robert Mueller, John Roes 1−20, Michael Zenk, James W. Ziglar, filed by

06/19/2003
06/23/2003 06/23/2003 06/26/2003 06/30/2003 06/30/2003 07/01/2003
07/02/2003 07/02/2003 07/02/2003 07/02/2003 07/02/2003 07/03/2003 07/03/2003 07/03/2003
07/03/2003 07/03/2003 07/07/2003 07/07/2003

Shakir Baloch, Yasser Ebrahim, Hany Ibrahim, Syed Amjad Ali Jaffri, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen.(DiLorenzo, Krista) (Entered: 06/19/2003)
27 ORDER signed by Judge John Gleeson on 6/17/03 confirming that pltfs' understanding with regard to their application to conduct limited discovery is correct, and grant their application to include in the second amended complaint those claims referred to in their 6/13/03 letter as well as the court's order 6/12/03. C/M by Chambers. (DiLorenzo, Krista) (Entered: 06/19/2003)
29 Letter dated 6/16/03 from AUSA Molina to Judge Gleeson, in response to pltf's letter dated 6/13/03. (DiLorenzo, Krista) (Entered: 06/23/2003)
30 CERTIFICATE OF SERVICE re: admission to practice pro hac vice by Jo C. Bennett. (DiLorenzo, Krista) (Entered: 06/24/2003)
31 Letter dated 6/13/03 from Nancy Chang to Judge Gleeson, clarifying several matters relating to the court's order of 6/12/03. (DiLorenzo, Krista) (Entered: 06/26/2003)
33 MOTION for Leave to Appear pro hac vice for Michael L. Martinez, Esq. by Dennis Hasty. (DiLorenzo, Krista) (Entered: 07/03/2003)
34 MOTION for Leave to Appear pro hac vice for Shari Ross Lahlou, Esq. by Dennis Hasty. (DiLorenzo, Krista) (Entered: 07/03/2003)
45 Stipulation of Withdrawal and Substitution of Defense Counsel and Joint Entry of Appearances. Justice Dept. attorneys Douglas Letter and Timothy Garren will withdraw from further representation of the dfts. in this action and new counsel will be substituted. (DiLorenzo, Krista) (Entered: 07/15/2003)
32 Supplemental MOTION to Dismiss The Second Amended Complaint by James W. Ziglar. (Bennett, Jo) (Entered: 07/02/2003)
41 Dft Michael Zenk's Supplemental memo of law Support MOTION to Dismiss the complaint. (DiLorenzo, Krista) (Entered: 07/07/2003)
42 Supplemental Memo of Law in support of dft. Hasty's motion to dismiss. (DiLorenzo, Krista) (Entered: 07/07/2003)
54 Supplemental memo in support of dismissing the claims against Attorney General John Ashcroft in his individual capacity. (DiLorenzo, Krista) (Entered: 08/07/2003)
55 Supplemental Memo of law in support of motion to dismiss on behalf of the named dfts. int heir official capacities. (DiLorenzo, Krista) (Entered: 08/07/2003)
35 ORDER granting 33 Motion for Leave to Appear pro hac vice for Michael L. Martinez, Esq. Signed by JudgeJohn Gleeson on 7/2/03. C/M by Chambers. (DiLorenzo, Krista) (Entered: 07/03/2003)
36 ORDER granting 34 Motion for Leave to Appear pro hac vice for Shari Ross Lahlou, Esq. Signed by JudgeJohn Gleeson on 7/2/03. C/M by Chambers. (DiLorenzo, Krista) (Entered: 07/03/2003)
37 ENDORSED ORDER signed by Judge John Gleeson on 7/1/03 denying (without prejudice to renewal after dft's supplemental briefs are filed) pltfs' request for an extension of time to respond to the briefs to be submitted by dfts. Copies faxed by Chambers on 7/2/03. (DiLorenzo, Krista) (Entered: 07/03/2003)
38 ENDORSED ORDER signed by Judge John Gleeson on 7/1/03 denying dft's request for an expansion of the 25 page limit. Copies faxed by Chambers on 7/2/03. (DiLorenzo, Krista) (Entered: 07/03/2003)
43 Mueller's supplemental memo of law in support of motion to dismiss. (DiLorenzo, Krista) (Entered: 07/07/2003)
39 Letter dated 7/2/03 from Barbara Olshansky to Judge Gleeson, renewing their request for an extension of time to respond to dfts' briefs. (DiLorenzo, Krista) (Entered: 07/07/2003)
40 ORDER signed by Judge John Gleeson on 7/3/03 granting pltfs' request for an extension of time to respond to dfts' briefs. Pltfs' brief in opposition due on 7/16/03;

07/11/2003 07/15/2003 07/21/2003 07/23/2003 07/23/2003
07/23/2003 07/23/2003 07/24/2003 07/24/2003 08/07/2003 08/08/2003 08/27/2003
10/16/2003 10/17/2003 10/21/2003 12/10/2003 12/29/2003 01/09/2004

dfts' reply due on 7/23/03. Copies faxed by Chambers on 7/3/03.(DiLorenzo, Krista) (Entered: 07/07/2003)
44 Letter dated 7/10/03 from Shari Ross Lahlou to Clerk of Court. enclosing a check in the amount of $50.00 for pro hac vice admission fees. Receipt # 280269. (DiLorenzo, Krista) (Entered: 07/15/2003)
46 Pltf's Supplemental memo of law in Opposition to 32 Supplemental MOTION to Dismiss The Second Amended Complaint.(DiLorenzo, Krista) (Entered: 07/18/2003)
47 ENDORSED ORDER signed by Judge John Gleeson on 7/14/03 granting pltfs' request for an enlargement of the Court's 25 page limit to 45 pages. C/M. (DiLorenzo, Krista) (Entered: 07/21/2003)
48 ENDORSED ORDER signed by Judge John Gleeson on 7/21/03 denying dfts' request for an extension of time to file their reply to the pltfs' supplemental memo of law in opposition to dfts' motion to dismiss. C/M. (DiLorenzo, Krista) (Entered: 07/23/2003)
49 RESPONSE in Support re 32 Supplemental MOTION to Dismiss The Second Amended Complaint REPLY SUPPLEMENTAL MEMORANDUM OF DEFENDANT JAMES ZIGLAR IN SUPPORT OF THE MOTION TO DISMISS THE SECOND AMENDED COMPLAINT filed by James W. Ziglar. (Bennett, Jo) (Entered: 07/23/2003)
50 Dft. Michael Zenk's reply supplemental memo of law in support of his motion to dismiss the complaint. (DiLorenzo, Krista) (Entered: 07/24/2003)
51 Dft. Dennis Hasty's reply to pltfs' opposition to dfts' motion to dismiss second amended complaint. (DiLorenzo, Krista) (Entered: 07/24/2003)
52 Reply by Attorney General John Ashcroft to ptlfs' supplemental memo. (DiLorenzo, Krista) (Entered: 07/25/2003)
53 Reply to pltfs' supplemental memo of law in opposition to dfts' motion to dismiss the second amended complaint on behalf of the dfts. in their capacities. (DiLorenzo, Krista) (Entered: 07/25/2003)
56 Dft. Robert Mueller's reply to pltfs' opposition to his supplemental memo in support of motion to dismiss the second amended complaint. (DiLorenzo, Krista) (Entered: 08/07/2003)
57 Letter dated 7/23/03 from William McDaniel to Judge Gleeson, enclosing the reply supplemental memo of dft. James Ziglar in support of the motion to dismiss the second amended complaint. (DiLorenzo, Krista) (Entered: 08/08/2003)
58 ORDER signed by Magistrate Judge Cheryl L. Pollak on 8/26/03: pltfs. may serve doc. requests and/or interrogatories for the limited purpose of ascertaining the identities of the unnamed dfts; and pltf's request for a doc. preservation order is denied. (DiLorenzo, Krista) (Entered: 08/27/2003)
61 Unopposed motion for privacy protective order and memo of points and authorities by dfts.(DiLorenzo, Krista) (Entered: 10/28/2003)
59 ORDER signed by Judge John Gleeson on 10/16/03: Having considered dft's objections to Magistrate Judge Pollak's order dated 8/26/03, the court upholds the order in its entirety. C/M.(DiLorenzo, Krista) (Entered: 10/17/2003)
60 PROTECTIVE ORDER signed by Magistrate Judge Cheryl L. Pollak on 10/15/03.(DiLorenzo, Krista) (Entered: 10/21/2003)
Email Test. (Vaughn, Terry) (Entered: 12/10/2003)
62 Letter dated 12/18/03 from Ernesto Molina, Jr. to Judge Gleeson, notifying the court of the report issued by the Dept. of Justice's Office of the Inspector General. (DiLorenzo, Krista) (Entered: 12/29/2003)
63 Letter dated 1/9/04 from Larry Gregg to Judge Gleeson, in response to pltfs' letter dated 12/1/03. (DiLorenzo, Krista) (Entered: 01/12/2004)

01/30/2004 05/14/2004
05/25/2004 06/07/2004 06/07/2004 06/15/2004 07/01/2004 07/01/2004 07/07/2004 07/15/2004 07/27/2004 07/29/2004 07/29/2004 07/29/2004 08/02/2004 08/05/2004 08/05/2004 08/05/2004 08/05/2004

64 Letter dated 1/22/04 from Ernesto Molina to Judge Gleeson, in response to two letters dated 1/21/03 and 12/19/03. (DiLorenzo, Krista) (Entered: 01/30/2004)
65 Minute Entry for proceedings held before Magistrate Judge Pollak: Telephone Conference held on 5/14/2004. Parties are informed of NBC request to lift protective order. NBC considering whether to file a motion; if motion is filed parties to submit responses within 2 weeks thereafter. Discovery issues to be addressed in a letter to the court. (DiLorenzo, Krista) (Entered: 05/14/2004)
66 ENDORSED ORDER signed by Magistrate Judge Cheryl L. Pollak on 5/24/04 granting AUSA's request to extend time to file a response to pltf's letter until 6/1/04. Copies faxed by Chambers on 5/24/04. (DiLorenzo, Krista) (Entered: 05/25/2004)
67 ENDORSED ORDER signed by Magistrate Judge Cheryl L. Pollak on 6/3/04 granting pltfs' request to reply to AUSA's 6/2/04 letter.(DiLorenzo, Krista) (Entered: 06/07/2004)
68 Letter dated 6/3/04 from Nancy Chang to Magistrate Judge Pollak, requesting permission to reply to AUSA's letter dated 6/2/04. (DiLorenzo, Krista) (Entered: 06/07/2004)
69 ORDER signed by Magistrate Judge Cheryl L. Pollak on 6/8/04 directing dfts. to produce documents to the court for in camera review. (DiLorenzo, Krista) (Entered: 06/15/2004)
70 ORDER Endorsed on letter dated 6/30/04 from Nancy Chang, Esq. to USMJ Pollak: Telephone Conference set for 7/1/04 at 12:00. Signed by Judge Cheryl L. Pollak on 6/30/04. (Williams−Jackson, Sandy) (Entered: 07/01/2004)
76 Minute Entry for proceedings held before Magistrate Judge Pollak: Telephone Conference held on 7/1/2004. Protective order modified. (DiLorenzo, Krista) (Entered: 07/29/2004)
71 ORDER signed by Magistrate Judge Cheryl L. Pollak on 7/1/04 that paragraph 8 of the 10/15/03 protective order is amended. See order for further details and conditions. (DiLorenzo, Krista) (Entered: 07/07/2004)
72 Letter dated 7/13/04 from Michael Winger to Ernesto Molina, advising that pltfs' counsel disclosed one item of information contained in a document. (DiLorenzo, Krista) (Entered: 07/15/2004)
73 Letter dated 7/22/04 from Nancy Chang to Magistrate Judge Pollak, requesting status of motion to compel. (DiLorenzo, Krista) (Entered: 07/27/2004)
74 ORDER, Signed by Judge Cheryl L. Pollak on 7/29/04. (Black, Amanda) (Entered: 07/29/2004)
75 Letter dated 7/1/04 from Michael Winger to Magistrate Judge Pollak, enclosing a proposed order modifying the existing protective order. (DiLorenzo, Krista) (Entered: 07/29/2004)
77 Letter dated 6/30/04 from Nancy Chang to Magistrate Judge Pollak, requesting that the court modify paragraph 8 of the 10/15/03 protective order. (DiLorenzo, Krista) (Entered: 07/29/2004)
78 CORECTED ORDER. Signed by Magistrate Judge Cheryl L. Pollak on 08/02/04. (Caggiano, Diana) (Entered: 08/02/2004)
79 Letter dated 5/19/04 from Nancy Chang to Mag. Pollak, advising the court of several discovery disputes. (Piper, Francine) (Entered: 08/05/2004)
80 Letter dated 7/31/03 from Nancy Chang to Mag. Pollak, requesting the court's permission to conduct limited discovery. (Piper, Francine) (Entered: 08/05/2004)
81 Letter dated 6/2/04 from Ernesto Molina to Mag. Pollak, advising that the court should deny the motion for orders to compel. (Piper, Francine) (Entered: 08/05/2004)
82 Letter dated 6/7/04 from Nancy Chang to Mag. Pollak, pltff's request that the court expedite the resolution of the motion. (Piper, Francine) (Entered: 08/05/2004)

08/11/2004
08/13/2004 08/18/2004 08/18/2004 08/18/2004 08/19/2004 08/26/2004 08/27/2004 08/30/2004
08/31/2004 09/01/2004 09/03/2004 09/03/2004 09/07/2004 09/07/2004 09/09/2004

83 MOTION for Order to Show Cause permittng the movants to intervene for the purpose of seeking access to the documents produced by the defendants pursuant to Magistrate Judge Pollak's order of 8−2−04 by Omer Gavriel Marmari, Yaron Shmuel, Paul Kurzberg, Silvan Kurzberg. (Attachments: # 1 Declaration in support of Order to Show Cause with Exhibits# 2 Memorandum of law in support of Order to Show Cause)(Tolchin, Robert) (Entered: 08/11/2004)
84 Minute Entry for Telephone Conference proceeding held before Magistrate Judge Cheryl L. Pollak on 8/13/2004. Government to notify court by August 17, 2004 as to the position with respect to the intervenors application. (Caggiano, Diana) (Entered: 08/13/2004)
85 Letter dtd 8/4/04 to Magistrate Judge Cheryl L. Pollak from Larry Lee Gregg, submitted on behalf of A.G. John Ashcroft, in opposition to plaintiffs' request to initiate discovery, etc.(Schillat, Louise) (Entered: 08/18/2004)
86 Letter dtd 8/4/04 to Magistrate Judge Cheryl L. Pollak from Ernesto H. Molina, Jr., responding to Plaintiff's letter dtd 7/31/04, seeking leave to conduct discovery and requesting an order to protect against the destruction of evidence. Defendant's oppose both requests.(Schillat, Louise) (Entered: 08/18/2004)
87 Letter dtd 8/5/04 to Magistrate Judge Cheryl L. Pollak from AUSA Mark E. Nagle, opposing plaintiff's request for discovery prior to the resolution of the pending motions. (Schillat, Louise) (Entered: 08/18/2004)
88 Letter dated 8/17/04 from Ernesto Molina, Jr. to Mag. Pollak, in response to the order to show cause (hereinafter, "Motion to Intervene") filed on 8/12/04 by four individuals seeking to intervene. (Piper, Francine) (Entered: 08/19/2004)
89 Letter dated 8/13/04 from Nancy Chang to Mag. Pollak, requesting two brief modifications to the existing protective order. (Piper, Francine) (Entered: 08/26/2004)
90 Letter dated 8/17/04 from Ernesto Molina, Jr. to Mag. Pollak, in response to the order to show cause filed on 8/12/04 by four individuals seeking to intervene. (Piper, Francine) (Entered: 08/27/2004)
91 ORDER. It is hereby ORDERED that Paragraph 4 of the Protective Order issued on October 13, 2003, and amended on July 1, 2004, is amended as follows: It is further ORDERED that Paragraph 8 of the Protective Order issued on October 15, 2003, and amended on July 1, 2004, is amended as follows: Signed by Judge Cheryl L. Pollak on 08/26/04. (Pollak, Cheryl) (Entered: 08/30/2004)
92 Letter from Robert J. Tolchin, Esq. to Magistrate Judge Pollak Regarding Conveying proposed order, stipulated as to form by the government, allowing interevenors to intervene and have access to discovery materials produced to plaintiffs. (Tolchin, Robert) (Entered: 08/31/2004)
93 ORDER directing plaintiffs' counsel to prepare an accurate list of counsel in the case for the roster of counsel. Signed by Judge John Gleeson on September 1, 2004. (Gleeson, John) (Entered: 09/01/2004)
94 ORDER, Intervenor's Order to Show Cause is granted. Intervenor's counsel, Robert J. Tolchin, is permitted to have access, to and to make a copy of the discovery materials produced to the pltffs. (Signed by Judge Cheryl L. Pollak on 8/31/04) (Piper, Francine) (Entered: 09/03/2004)
95 Letter dated 8/24/04 from Ernesto Molina to Mag. Pollak, advising that parties have discussed the matter and have reached an agreement. (Piper, Francine) (Entered: 09/03/2004)
96 MOTION to Amend/Correct 28 Amended Complaint, by all plaintiffs. (Chang, Nancy) (Entered: 09/07/2004)
97 MOTION to Amend/Correct 96 MOTION to Amend/Correct 28 Amended Complaint, Memo and Proposed Order, by all plaintiffs. (Chang, Nancy) (Entered: 09/07/2004)
98 ENDORSED ORDER REFERRING MOTION: 96 MOTION to Amend/Correct 28 Amended Complaint to Mag. Pollak, filed by Shakir Baloch, Ibrahim Turkmen, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri, Yasser Ebrahim, Hany Ibrahim, Akil

09/09/2004 09/09/2004 09/09/2004
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09/09/2004 09/13/2004
09/13/2004
09/13/2004
09/13/2004 09/14/2004 09/14/2004 09/16/2004 09/16/2004
09/22/2004 09/23/2004 09/23/2004 09/23/2004

Sachveda. (Signed by Judge John Gleeson on 8/31/04) (Piper, Francine) (Entered: 09/09/2004)
99 Letter from Nancy Chang to Judge John Gleeson Regarding Roster of counsel attached. (Chang, Nancy) (Entered: 09/09/2004)
100 Letter from Nancy Chang to Judge John Gleeson Regarding Amended Roster of Counsel. (Chang, Nancy) (Entered: 09/09/2004)
101 RESPONSE in Opposition re 96 MOTION to Amend/Correct 28 Amended Complaint,, 97 MOTION to Amend/Correct 96 MOTION to Amend/Correct 28 Amended Complaint, Memo and Proposed Order, filed by all defendants. (Molina, Ernesto) (Entered: 09/09/2004)
102 REPLY to Response to Motion re 96 MOTION to Amend/Correct 28 Amended Complaint, filed by all plaintiffs. (Chang, Nancy) (Entered: 09/09/2004)
103 Notice of MOTION to Intervene by Javaid Iqbal, Ehab Elmaghraby. (Attachments: # 1 Declaration# 2 Certificate of Service)(Reinert, Alexander) (Entered: 09/09/2004)
104 MOTION to Intervene , Memorandum of Law in Support of Intervention by Ehab Elmaghraby, Javaid Iqbal. (Attachments: # 1 Certificate of Service)(Reinert, Alexander) (Entered: 09/09/2004)
105 Letter from Alexander A. Reinert to The Honorable Cheryl L. Pollak Regarding Motion to Intervene. (Reinert, Alexander) (Entered: 09/09/2004)
106 First MOTION for Extension of Time to File Objections to Magistrate Judge's Order by all defendants. (Attachments: # 1 Exhibit Defendants' Response in Opposition (filed 9/9/04))(Molina, Ernesto) (Entered: 09/13/2004)
107 ORDER. This Court orders that plaintiffs' motion to amend as set forth in paragraphs 1, 2, 3, 4, 5, 8, 9, and 10 of plainitffs' Notice of Motion for Leave to Amend the Complaint be granted. Signed by Judge Cheryl L. Pollak on 09/10/04. (Caggiano, Diana) (Entered: 09/13/2004)
108 Letter from Alexander A. Reinert to The Honorable Cheryl L. Pollak Regarding Motion to Intervene. (Attachments: # 1 Text of Proposed Order Granting Motion to Intervene)(Reinert, Alexander) (Entered: 09/13/2004)
109 AMENDED COMPLAINT (Third Amended Class Action Complaint) against all defendants all defendants., filed by all plaintiffs.(Chang, Nancy) (Entered: 09/13/2004)
110 ORDER directing clerk to update roster of counsel on docket sheet. Signed by Judge John Gleeson on September 14, 2004. (Gleeson, John) (Entered: 09/14/2004)
111 NOTICE of Appearance by Larry L Gregg, Brian D Miller, Richard W Sponseller on behalf of John Ashcroft (Piper, Francine) (Entered: 09/16/2004)
112 Second MOTION for Extension of Time to File Objections to Magistrate Judge's Order by all defendants. (Molina, Ernesto) (Entered: 09/16/2004)
113 Second MOTION for Extension of Time to File objections to Magistrate Judge's Order; MEMORANDUM OF LAW by all defendants. (Attachments: # 1 Supplement Memorandum of Law)(Molina, Ernesto) (Entered: 09/16/2004)
114 ORDER granting 103 Motion to Intervene, granting 104 Motion to Intervene. Signed by JudgeCheryl L. Pollak on 9/14/04. (Greene, Donna) (Entered: 09/22/2004)
Email Test − DO NOT REPLY (Piper, Francine) (Entered: 09/23/2004)
Email Test − DO NOT REPLY. (Galeano, Sonia) (Entered: 09/23/2004)
115 REPLY to Response to Motion re 106 First MOTION for Extension of Time to File Objections to Magistrate Judge's Order, 112 Second MOTION for Extension of Time to File Objections to Magistrate Judge's Order, 113 Second MOTION for Extension of Time to File objections to Magistrate Judge's Order; MEMORANDUM OF LAW notice that objections will not be filed filed by John Ashcroft, Dennis Hasty, Robert Mueller, Michael Zenk, James W. Ziglar. (Molina, Ernesto) (Entered: 09/23/2004)

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10/25/2004
10/25/2004 10/26/2004 11/01/2004 11/01/2004

116 Letter MOTION to Dismiss request for premotion conference regarding Third Amended Complaint by all defendants. Responses due by 10/1/2004 (Molina, Ernesto) (Entered: 09/24/2004)
117 Letter from Nancy Chang to Judge Gleeson Regarding Proposed Briefing Schedule (Proposed Order Attached). (Chang, Nancy) (Entered: 09/27/2004)
118 RESPONSE to Motion re 116 Letter MOTION to Dismiss request for premotion conference regarding Third Amended Complaint reply filed by all defendants. (Molina, Ernesto) (Entered: 09/28/2004)
127 AMENDED SUMMONS Returned Executed (Greene, Donna) (Entered: 11/01/2004)
119 CERTIFICATE OF SERVICE by Shakir Baloch, Yasser Ebrahim, Hany Ibrahim, Syed Amjad Ali Jaffri, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen re 109 Amended Complaint and Amended Summons on United States Attorney and Attorney General by certified mail (Winger, Michael) (Entered: 10/13/2004)
ORDER A premotion conference is scheduled for October 21, 2004 at 12:00 noon. Counsel for plaintiff shall notify all parties. Signed by Judge John Gleeson on 10−13−04. (Klein, Vivian) (Entered: 10/13/2004)
120 Letter from Nancy Chang to J. Gleeson Regarding the parties' jointly proposed order requiring production of addresses for service of process. (Chang, Nancy) (Entered: 10/15/2004)
121 NOTICE of Appearance by Richard W Sponseller on behalf of John Ashcroft (Sponseller, Richard) (Entered: 10/19/2004)
151 Minute Entry for proceedings held before John Gleeson : Pre Motion Conference held on 10/21/2004. Motion due 11/22/04; oppositon due 1/10/05 reply 1/24/05. As to D's Hastings & Zenk − Mtns 11/1/04 opp. 11/04 reply 11/8. Parties to appear before Mag. Pollak 11/9 at 1:00 for a discovery conference. (Greene, Donna) (Entered: 12/07/2004)
152 Minute Entry for proceedings held before John Gleeson : Status Conference held on 10/21/2004. (Court Reporter Holly Driscoll.)Motion schedule as to D's Hasty & Warden Zenk as follows: 11/1/04 motion; opp 11/4/04; reply 11/8/04; as to other D's the schedule is as follows: Motions due 11/21/04; opposition due 1/10/05; reply 1/25/05. Court will notify parties; if oral argument is needed. Counsel are to appear before Mag. Pollak on 11/9/04 at 1:00 pm for a discovery conf. (Greene, Donna) (Entered: 12/07/2004)
122 WAIVER OF SERVICE Returned Executed by Ashraf Ibrahim, Ibrahim Turkmen, Asif−Ur−Rehman Saffi, akhil sachdeva, Syed Amjad Ali Jaffri, Hany Ibrahim, Shakir Baloch, Yasser Ebrahim. Christopher Witschel waiver sent on 10/7/2004, answer due 12/6/2004; James Sherman waiver sent on 10/13/2004, answer due 12/13/2004; Clemett Shacks waiver sent on 10/7/2004, answer due 12/6/2004; Brian Rodriguez waiver sent on 10/7/2004, answer due 12/6/2004; Jon Osteen waiver sent on 10/7/2004, answer due 12/6/2004; Raymond Cotton waiver sent on 10/7/2004, answer due 12/6/2004; William Beck waiver sent on 10/7/2004, answer due 12/6/2004. (Chang, Nancy) (Entered: 10/25/2004)
123 Letter from Nancy Chang to Judge Gleeson Regarding claims against MDC officials in Third Amended Complaint (dated 10/21/04). (Chang, Nancy) (Entered: 10/25/2004)
124 Letter from United States, Defendants in their official capacity, and defendants Hasty and Zenk in their individual capacities to Judge Gleeson Regarding Plaintiffs' Letter Requesting Broader Discovery. (Molina, Ernesto) (Entered: 10/26/2004)
125 Letter dated 10/15/04 from Nancy Chang to Judge Gleeson, pltff's request that the court sign the enclosed proposed order requiring the U.S. to produce to pltff's counsel certain addresses for certain dft's. (Piper, Francine) (Entered: 11/01/2004)
126 ORDER, that the U.S. shall provide to counsel for pltff's, for each of dfts Joseph Cuciti, Michael McCabe, Michael DeFrancisco, Phillip Barnes and Stuart Pray, last know addresses for dfts. (Signed by Judge John Gleeson on 10/18/04) (Piper, Francine) (Entered: 11/01/2004)

11/01/2004 11/04/2004 11/08/2004 11/08/2004
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11/19/2004 11/21/2004 11/22/2004

128 Letter from Michael L. Martinez and Allan N. Taffet to Honorable John Gleeson Regarding Defendants Hasty's and Zenk's Letter Brief. (Martinez, Michael) (Entered: 11/01/2004)
129 Letter from Nancy Chang to Judge Gleeson Regarding Plaintiffs' Response to Letter of Wardens dated November 1, 2004. (Chang, Nancy) (Entered: 11/04/2004)
130 Letter from Counsel for Defendants Hasty and Zenk to Judge Gleeson Regarding Discovery. (Martinez, Michael) (Entered: 11/08/2004)
131 WAIVER OF SERVICE Returned Executed by Ibrahim Turkmen, Asif−Ur−Rehman Saffi, akhil sachdeva, Syed Amjad Ali Jaffri, Hany Ibrahim, Ashraf Ibrahim, Yasser Ebrahim, Shakir Baloch. Scott Rosebery waiver sent on 10/7/2004, answer due 12/6/2004; Daniel Ortiz waiver sent on 10/7/2004, answer due 12/6/2004; Howard Gussak waiver sent on 10/7/2004, answer due 12/6/2004; James Cuffee waiver sent on 10/7/2004, answer due 12/6/2004; Steven Barrere waiver sent on 10/7/2004, answer due 12/6/2004. (Chang, Nancy) (Entered: 11/08/2004)
132 (Faxed)(Copy)Letter dtd. 10/21/04 from pltffs counsel, Nancy Chang to Judge Gleeson, providing Judge w/a complete list of claims for relief contained in the Third Amd. Complaint and suggests these claims be referenced in Judge's order permitting pltffs to conduct discovery on MDC defts. (Layne, Monique) (Entered: 11/12/2004)
133 Letter from Ernesto H. Molina to Magistrate Judge Cheryl Pollak Regarding Service of Remaining Defendants. (Molina, Ernesto) (Entered: 11/16/2004)
134 ORDER. Setting discovery schedule. Signed by Judge Cheryl L. Pollak on 11/17/04. (Caggiano, Diana) (Entered: 11/17/2004)
135 Letter MOTION for Leave to File Memoranda of Law in Excess of the Page Limit by James W. Ziglar, Dennis Hasty, United States, Michael Zenk, John Ashcroft, Robert Mueller. (Molina, Ernesto) (Entered: 11/17/2004)
136 SUMMONS Returned Executed by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Stuart Pray served on 11/11/2004, answer due 1/10/2005. (Winger, Michael) (Entered: 11/17/2004)
137 Letter from Nancy Chang to Judge Gleeson Regarding Opposition to Defendants' Request for Briefing Page Expansion. (Chang, Nancy) (Entered: 11/17/2004)
138 REPLY to Response to Motion re 135 Letter MOTION for Leave to File Memoranda of Law in Excess of the Page Limit filed by James W. Ziglar, Dennis Hasty, United States, Michael Zenk, John Ashcroft, Robert Mueller. (Molina, Ernesto) (Entered: 11/18/2004)
139 Letter dated 11/9/04 from Nancy Chang to Mag. Pollak, pltffs need to obtain additional information about the newly named dfts in order to complete service of process on them. (Piper, Francine) (Entered: 11/19/2004)
140 Letter from James G. Ryan to Hon. Cheryl L. Pollak Regarding Initial Conference. (Ryan, James) (Entered: 11/19/2004)
ORDER In response to the recent correspondence regarding brief length, I hereby order the defendants in their official capacities ("the Government") and defendants Ashcroft, Mueller, Ziglar, Hasty and Zenk in their individual capacities to file a single joint brief not to exceed 100 pages. Signed by Judge John Gleeson on November 19, 2004. (Gleeson, John) (Entered: 11/19/2004)
141 MOTION for Reconsideration re Order, setting page limitation by United States. (Molina, Ernesto) (Entered: 11/20/2004)
142 Letter MOTION to Amend/Correct Order, Setting Page Limitations by James W. Ziglar, Dennis Hasty, United States, Michael Zenk, John Ashcroft, Robert Mueller. (Molina, Ernesto) (Entered: 11/21/2004)
143 ORDER. Scheduling order related to defendants who were first named in the Third Amended Complaint and who were not served as of the November 9, 2004 conference before this Court. Signed by Judge Cheryl L. Pollak on 11/19/04. (Caggiano, Diana)

11/22/2004
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12/07/2004 12/08/2004 12/08/2004 12/09/2004 12/10/2004
12/10/2004

(Entered: 11/22/2004)
144 ORDER denying motion for reconsideration of November 19th order regarding brief length; extending time to file joint brief to November 30, 2004; allowing counsel to submit application for permission to file short supplemental brief asserting matters that cannot be asserted in the joint brief − letter application (no longer than 2 pages in length) to be sent to my chambers by 12:00 p.m. on November 23, 2004. Signed by Judge John Gleeson on November 22, 2004. (Gleeson, John) (Entered: 11/22/2004)
145 Letter from Nancy Chang to J. Gleeson Regarding Plaintiffs' request for an adjustment of time to file brief corresponding to extension of time granted to defendants. (Chang, Nancy) (Entered: 11/22/2004)
ORDER Plaintiffs' request for an enlargement of time within which to file its brief opposing defendants' motion to dismiss is denied. Signed by Judge John Gleeson on November 22, 2004. (Gleeson, John) (Entered: 11/22/2004)
146 Letter from Nancy Chang to J. Gleeson Regarding Requesting reconsideration of plaintiffs' request for an adjustment of time to file brief corresponding to time granted to defendants. (Chang, Nancy) (Entered: 11/22/2004)
147 WAIVER OF SERVICE Returned Executed by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Mario Machado waiver sent on 11/11/2004, answer due 1/10/2005. (Winger, Michael) (Entered: 11/24/2004)
148 Letter from Ernesto Molina to Nancy Chang Regarding Defendants' Omibus Motion to Dismiss and Memorandum in Support thereof; United States' Motion for Substitution and Memorandum in Support thereof. (Molina, Ernesto) (Entered: 11/30/2004)
149 ORDER denying motions by defendants Dennis Hasty and Michael Zenk to dismiss the third, twelfth through sixteenth, and thirty−first causes of action. Signed by Judge John Gleeson on December 3, 2004. (Gleeson, John) (Entered: 12/03/2004)
150 ANSWER to Amended Complaint by Raymond Cotton.(Kaizer, Nicholas) (Entered: 12/06/2004)
153 Letter dtd 12/6/2004 from Richard Diaz, on behalf of dfts Witschel, LoPresti, Beck, Bledsoe, Ortiz, Chase, DeFrancisco, Lopez, Machado, Mickens, Rosebery, Rodriguez, Osteen and Cuffee, requesting an extension of time until 1/6/2004 to respond to the allegations in the above−referenced lawsuit. *Fwd to Judge Gleeson. (Latka−Mucha, Wieslawa) (Entered: 12/07/2004)
154 Letter from Nancy Chang to J. Gleeson Regarding briefing. (Chang, Nancy) (Entered: 12/07/2004)
155 STIPULATION re 109 Amended Complaint Extend Time to Answer by Steven Barrere. (McLaughlin, Jennifer) (Entered: 12/08/2004)
156 NOTICE of Appearance by James G. Ryan on behalf of Steven Barrere (Attachments: # 1 Affidavit Service)(Ryan, James) (Entered: 12/08/2004)
162 ANSWER to Third Amended Complaint by William Beck.(Piper, Francine) (Entered: 12/14/2004)
157 SCHEDULING ORDER: A conference is scheduled for DECEMBER 17, 2004 at 9:00 A.M., before the Honorable Cheryl L. Pollak, United States Magistrate Judge. Signed by Judge Cheryl L. Pollak on 12/10/04. (Caggiano, Diana) (Entered: 12/10/2004)
158 WAIVER OF SERVICE Returned Executed by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Salvatore LoPresti waiver sent on 10/7/2004, answer due 12/6/2004; Lindsey Bledsoe waiver sent on 10/7/2004, answer due 12/6/2004; Marcial Mundo waiver sent on 10/7/2004, answer due 12/6/2004; Elizabeth Torres waiver sent on 10/7/2004, answer due 12/6/2004; Sydney Chase waiver sent on 10/7/2004, answer due 12/6/2004; Richard Diaz waiver sent on 10/7/2004, answer due 12/6/2004; Kevin Lopez waiver sent on 10/7/2004, answer due 12/6/2004; Raymond Mickens waiver sent on 10/7/2004, answer due 12/6/2004. (Winger, Michael) (Entered: 12/10/2004)

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159 NOTICE of Appearance by Thomas M. Sullivan on behalf of James Sherman (Attachments: # 1 Certificate of Service)(Sullivan, Thomas) (Entered: 12/10/2004)
160 Letter from Debra L. Roth and Thomas M. Sullivan to the Honorable John Gleeson Regarding Request for an Extension of Time to Answer or Otherwise Respond to the Third Amended Complaint. (Sullivan, Thomas) (Entered: 12/10/2004)
161 Letter from United States, Defendants in their Official Capacities, and Defendants John Ashcroft, Robert Mueller, Dennis Hasty, James Ziglar, and Michael Zenk in their individual capacities. to Judge Gleeson Regarding non−opposition to Plaintiffs' Letter dated December 7, 2004, requesting leave to exceed the page limit; cross−request for leave to exceed the page limit in Defendants' reply. (Molina, Ernesto) (Entered: 12/13/2004)
(ADMINISTRATIVE ORDER 2004−08 AND REGISTRATION PACKAGE ATTACHED AND MAILED TO ROBERT GOLDMAN). You are required to file all original documents electronically. In the future, please ensure that all original documents in this action are filed electronically. Clearly marked hard copy−courtesy documents should be submitted to Chambers. Courtesy copies should also indicate that the original of the submitted document has already been electronically filed. (Piper, Francine) (Entered: 12/14/2004)
163 Letter from Shari Ross Lahlou to Judge Gleeson Regarding Notice of service of Motion for Reconsideration. (Lahlou, Shari) (Entered: 12/14/2004)
164 Letter from Joshua Klein to Judge Gleeson Regarding Service of Defendant Michael Zenk's Notice of Motion and Memorandum of Law in Support of His Motion for Reconsideration. (Taffet, Allan) (Entered: 12/14/2004)
ORDER granting plaintiffs' request to submit a brief in opposition to the United States and Defendants' motion to dismiss of up to 100 pages, as requested in a letter from Nancy Chang to me dated December 7, 2004. Signed by Judge John Gleeson on December 14, 2004. (Gleeson, John) (Entered: 12/14/2004)
ORDER granting defendant the United States's −− and other defendants, as set forth in a letter from Ernesto Molina, Jr. to me dated December 13, 2004 −− request to file a reply brief of as many as 40 pages in response to plaintiffs' opposition to their motion to dismiss. Signed by Judge John Gleeson on December 14, 2004. (Gleeson, John) (Entered: 12/14/2004)
ORDER granting defendant Christopher Witschel's request for an extension of time to answer the complaint to January 6, 2005, as requested in a letter from Witschell to me dated December 6, 2004. Signed by Judge John Gleeson on December 14, 2004. (Gleeson, John) (Entered: 12/14/2004)
165 ORDER, endorsed on letter dated 11/22/04 from Nancy Chang to Judge Gleeson, application for reconsideration of Order of 11/22 is Denied. (Signed by Judge John Gleeson on 12/2/04) (Piper, Francine) (Entered: 12/15/2004)
166 NOTICE of Appearance by Kenneth Charles Murphy on behalf of Howard Gussak (Murphy, Kenneth) (Entered: 12/15/2004)
167 Letter from Kenneth C. Murphy to Honorable John Gleeson Regarding Request to extend time to file Answer. (Murphy, Kenneth) (Entered: 12/16/2004)
168 WAIVER OF SERVICE Returned Executed by Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Michael Defrancisco waiver sent on 11/11/2004, answer due 1/10/2005. (Chang, Nancy) (Entered: 12/16/2004)
169 STIPULATION AND ORDER, the time for dft Steven Barrere, to appear and answer the third Amended Complaint is extended to 1/6/05. (Signed by Judge John Gleeson on 12/13/04) (Piper, Francine) (Entered: 12/17/2004)
ORDER granting defendant Howard Gussak's request for an extension of time to file an answer until January 6, 2005, as requested in a letter from Kenneth Murphy to me dated December 16, 2004. Signed by Judge John Gleeson on December 17, 2004. (Gleeson, John) (Entered: 12/17/2004)

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170 Notice of MOTION for Reconsideration of December 3, 2004 Order by Dennis Hasty. (Lahlou, Shari) (Entered: 12/20/2004)
171 First MOTION for Reconsideration re 149 Order by Michael Zenk. (Taffet, Allan) (Entered: 12/20/2004)
172 MOTION for Reconsideration by Defs Hasty and Zenk − Plaintiffs' Opposition Brief by all plaintiffs. (Chang, Nancy) (Entered: 12/23/2004)
173 REPLY to Response to Motion re 172 MOTION for Reconsideration by Defs Hasty and Zenk − Plaintiffs' Opposition Brief filed by Dennis Hasty, Michael Zenk. (Lahlou, Shari) (Entered: 12/30/2004)
174 Minute Entry: Telephone Conference held before Mag. Pollak on 12/30/2004. After conferring with DOJ attorney re. status of internal investigation and requests for counsel, it is hereby Ordered that defendants Withchell and Beck are given until February 14, 2005 to answer or otherwise move with respect to the Complaint. So Ordered. (Pollak, Cheryl) (Entered: 12/30/2004)
175 DISCLOSURE of Interested Parties by Raymond Cotton.(Kaizer, Nicholas) (Entered: 01/03/2005)
176 STIPULATION, extending dft Elizabeth Torres time to answer until 1/6/05.(Signed by Judge John Gleeson on 12/30/04) C/M(Piper, Francine) (Entered: 01/05/2005)
177 Letter from Alan E. Wolin, Esq. to Magistrate Judge Pollak Regarding Extension of Time to Answer or Otherwise Move on behalf of defendants S. Chase, M. DeFrancisco, R. Diaz, M. Machado, B. Rodriguez and S. Rosebery. (Wolin, Alan) (Entered: 01/05/2005)
178 WAIVER OF SERVICE Returned Executed by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Phillip Barnes waiver sent on 11/11/2004, answer due 1/10/2005. (Chang, Nancy) (Entered: 01/05/2005)
179 ANSWER to Amended Complaint by Steven Barrere.(Ryan, James) (Entered: 01/06/2005)
180 DISCLOSURE of Interested Parties by Steven Barrere.(Ryan, James) (Entered: 01/06/2005)
181 ORDER, endorsed on letter dated 12/6/04 from Richard Diaz to Judge Gleeson, granted to 1/6/05. Any further requests for adjournment shall be directed to Judge Pollak for decision. (Signed by Judge John Gleeson on 12/13/04) (Piper, Francine) (Entered: 01/06/2005)
182 First ANSWER to Amended Complaint, First CROSSCLAIM against United States by Elizabeth Torres.(Avallone, Rocco) (Entered: 01/06/2005)
183 ANSWER to Amended Complaint by Marcial Mundo.(Matthews, James) (Entered: 01/06/2005)
184 DISCLOSURE of Interested Parties by Marcial Mundo.(Matthews, James) (Entered: 01/06/2005)
196 TRANSCRIPT of Cause for Oral Argument held on 12/17/04 before Judge Cheryl L. Pollak. Court Reporter: Elizabeth Barron. (Drayton, Lorraine) (Entered: 01/14/2005)
197 TRANSCRIPT of Civil Cause for Confernce held on 11/9/04 before Judge Cheryl L. Pollak. Court Reporter: Elizabeth Barron. (Drayton, Lorraine) (Entered: 01/14/2005)
185 ORDER endorsed on letter dated 12/10/04 from Debra L. Roth to Judge Gleeson. Request for an extension of time until 1/27/05 to respond to the Third Amended Complaint is Granted. Signed by Judge John Gleeson on 12/13/04. (Greene, Donna) (Entered: 01/07/2005)
186 SUMMONS Returned Executed by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Michael McCabe served on 1/4/2005, answer due 3/7/2005. (Winger, Michael) (Entered: 01/11/2005)

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187 ORDER endorsed on letter dated 12/10/04 from Michael G. Kruzynski to Judge Gleeson. The application requesting the court assistance by setting a deadline for OIA to conclude is ongoing investigation and to enlarge Mr. Witschel's time to answer is referred to Judge Pollak. Signed by Judge John Gleeson on 12/30/04. (Greene, Donna) (Entered: 01/12/2005)
188 NOTICE by Elizabeth Torres of dismissal of Cross−Claims against Defendant United States of America (Leonard, Christina) (Entered: 01/12/2005)
189 JON OSTEEN'S ANSWER to Amended Complaint Third, CROSSCLAIM against United States by Jon Osteen.(Koenigsberg, David) (Entered: 01/12/2005)
190 WAIVER OF SERVICE Returned Executed by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. Joseph Cuciti waiver sent on 1/7/2005, answer due 3/8/2005. (Winger, Michael) (Entered: 01/13/2005)
191 (Faxed)(Copy)Letter dtd. 11/18/04 from defense counsel for Raymond Cotton to Judge Pollak, requesting clarification as to whether the Court's Order pertains to Mr. Cotton or only those defts' previously served w/the original Summons and Complaint, and if it does, requesting an extension of 90 days after serving their answer, to serve written discovery requests and interrog.'s. (Rec'd in docketing 1/.13/05). (Layne, Monique) (Entered: 01/13/2005)
192 ANSWER to Amended Complaint by Raymond Mickens.(Rosenstock, E.) (Entered: 01/13/2005)
193 Letter dtd. 12/22 from defense counsel, Richard W. Levitt to Judge Pollak, advising he is in receipt of the Court's 12/19 Order and requests further clarification, as Mr. Cotton does not appear to fall into the category of defts addressed by either this or the Court's 12/17 Order. Further requesting deft be permitted to adhere to the 11/19 Order rather than the earlier order. (Rec'd in docketing 1/13/05). (Layne, Monique) (Entered: 01/13/2005)
194 Letter dtd. 12/6/04 from deft Christoper Witschel to Judge Gleeson, requesting an extension of time until 1/6/05 to anwer the complaint in this action. (Rec'd in docketing 1/13/05). (Layne, Monique) Additional attachment(s) added on 1/13/2005 (Layne, Monique). (Entered: 01/13/2005)
195 ANSWER to Amended Complaint by Howard Gussak.(Murphy, Kenneth) (Entered: 01/13/2005)
Minute Entry for proceedings held before John Gleeson : Motion Hearing held on 1/14/2005 re 171 First MOTION for Reconsideration re 149 Order filed by Michael Zenk,, 170 Notice of MOTION for Reconsideration of December 3, 2004 Order filed by Dennis Hasty,, 172 MOTION for Reconsideration by Defs Hasty and Zenk − Plaintiffs' Opposition Brief filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,.Counsel for pltff. Nancy Chang and Michael Winger present by phone counsel for deft. Zenk − Allan N. Taffet and deft Hasty Shari R. Lahlou present. Motion to reconsider and vacate the December 3, 2004 order is denied.(Court Reporter Henry Shapiro.)(Klein, Vivian) (Entered: 01/14/2005)
198 DISCLOSURE of Interested Parties by Elizabeth Torres.(Leonard, Christina) (Entered: 01/14/2005)
199 Letter from Debra L. Roth to Judge Gleeson Regarding Extension of Time. (Sullivan, Thomas) (Entered: 01/22/2005)
200 MOTION for Leave to Appear Pro Hac Vice for Debra L. Roth by James Sherman. (Sullivan, Thomas) (Entered: 01/22/2005)
201 Letter from Thomas M. Sullivan to Judge Gleeson Regarding Pro Hac Vice Applications of Debra L. Roth, Notice of Appearance and Request for Extension of Time. (Sullivan, Thomas) (Entered: 01/22/2005)
ORDER denying defendant James Sherman's request for an extension of time to respond to the Third Amended Complaint until February 22, 2005, as requested in a letter from Debra L. Roth dated January 21, 2005. The time for Sherman to file is

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hereby extended until February 4, 2005 (Roth has represented in her letter that plaintiffs consent to such an extension). Signed by Judge John Gleeson on January 25, 2005. (Gleeson, John) (Entered: 01/25/2005)
202 MOTION to Substitute Party United States by United States. (Attachments: # 1 Certification of Phyllis Pyles# 2 Memorandum of Law in Support# 3 Text of Proposed Order Proposed Order)(Molina, Ernesto) (Entered: 01/25/2005)
203 RESPONSE in Opposition re 202 MOTION to Substitute Party United States filed by all plaintiffs. (Attachments: # 1 Declaration of International Law Scholar William Aceves)(Molina, Ernesto) (Entered: 01/25/2005)
204 REPLY to Response to Motion re 202 MOTION to Substitute Party United States filed by United States. (Attachments: # 1 Memorandum Opinion in Bancoult v. McNamara, No. 01−2629 (D.D.C. Dec. 21, 2004))(Molina, Ernesto) (Entered: 01/25/2005)
205 MOTION to Dismiss the Third Amended Complaint by James W. Ziglar, Dennis Hasty, United States, Michael Zenk, John Ashcroft, Robert Mueller. Responses due by 1/10/2005 (Attachments: # 1 Memorandum of Law in Support# 2 Exhibit Government's Exhibits A, B, and C)(Molina, Ernesto) (Entered: 01/25/2005)
206 RESPONSE in Opposition re 205 MOTION to Dismiss the Third Amended Complaint filed by all plaintiffs. (Molina, Ernesto) (Entered: 01/25/2005)
207 REPLY to Response to Motion re 205 MOTION to Dismiss the Third Amended Complaint and Attachment filed by James W. Ziglar, Dennis Hasty, United States, Michael Zenk, John Ashcroft, Robert Mueller. (Molina, Ernesto) (Entered: 01/25/2005)
208 First MOTION to Dismiss Third Amended Complaint by Clemett Shacks. Responses due by 2/23/2005 (Lasky, Barry) (Entered: 01/27/2005)
209 NOTICE of Appearance by Yvonne Shivers on behalf of Raymond Cotton (Shivers, Yvonne) (Entered: 01/28/2005)
210 NOTICE of Voluntary Dismissal by Jon Osteen (Koenigsberg, David) (Entered: 01/28/2005)
211 NOTICE of Change of Address/Firm/Email by William Alden McDaniel, Jr (McDaniel, William) (Entered: 01/31/2005)
212 Letter dated 1/3/05 from Yvonne Shivers to Mag. Pollak, enclosing a courtesy copy of the Initial Disclosures on behalf of dft Raymond Cotton electronically filed and mailed to parties on 1/3/05. (Piper, Francine) (Entered: 01/31/2005)
213 Letter from Alan E. Wolin Esq. to Magistrate Judge Pollak Regarding Extension of Time to Answer on behalf of defendants DeFrancisco, Diaz, Machado, Rodriguez and Rosebery. (Wolin, Alan) (Entered: 02/01/2005)
214 Letter dated 1/27/05 from Yvonne Shivers to Mag. Pollak, enclosing a courtesy copy of the Notice of Appearance filed electronically on 1/28/05 on behalf of dft Cotton. (Piper, Francine) (Entered: 02/03/2005)
215 NOTICE of Appearance by Thomas M. Sullivan on behalf of James Sherman (Piper, Francine) (Entered: 02/03/2005)
216 Letter dated 1/27/05 from Barry Lasky and Scott Steinberg to Judge Gleeson, advising that dft Shack's motion to dismiss and memo in support were served upon counsel of record. (Piper, Francine) (Entered: 02/03/2005)
232 ANSWER to Plaintiff's Third Amended Complaint; filed by pro se Sydney Chase, dated 12/6/2004. W/Jury Demand. *Fwd to Chambers. (Latka−Mucha, Wieslawa) (Entered: 02/15/2005)
217 Letter from Debra L. Roth to Judge Gleeson Regarding Premotion Conference Request Pursuant to Court's Individual Practice Rules III.B. (Attachments: # 1 Certificate of Service)(Sullivan, Thomas) (Entered: 02/04/2005)

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218 Letter from Debra L. Roth to Judge Gleeson Regarding Premotion Conference Request Pursuant to Court's Individual Practice Rules III.B. (Corrected Copy). (Attachments: # 1 Certificate of Service)(Sullivan, Thomas) (Entered: 02/07/2005)
219 MOTION to Withdraw as Attorney on behalf of Nancy Chang, Esq. and Barbara Olshansky, Esq. by all plaintiffs. (Chang, Nancy) (Entered: 02/07/2005)
220 Letter from Nancy Chang to Judge John Gleeson Regarding Letter of Defendant Sherman re: Pre−Motion Conference. (Chang, Nancy) Modified on 2/8/2005 (Lee, Tiffeny). (Entered: 02/07/2005)
221 NOTICE of Change of Address/Firm/Email by David A Koenigsberg Counsel for Jon Osteen (Koenigsberg, David) (Entered: 02/08/2005)
222 Letter from Debra L. Roth to Judge Gleeson Regarding Premotion Conference Request (Replacing Docket Entry # 218). (Sullivan, Thomas) (Entered: 02/08/2005)
223 Defendant Michael DeFrancisco's ANSWER to Amended Complaint, CROSSCLAIM against United States by Michael Defrancisco.(Wolin, Alan) (Entered: 02/08/2005)
224 Defendant Richard Diaz' ANSWER to Amended Complaint, CROSSCLAIM against United States by Richard Diaz.(Wolin, Alan) (Entered: 02/08/2005)
225 Defendant Mario Machado's ANSWER to Amended Complaint, CROSSCLAIM against United States by Mario Machado.(Wolin, Alan) (Entered: 02/08/2005)
226 Defendant Brian Rodriguez' ANSWER to Amended Complaint, CROSSCLAIM against United States by Brian Rodriguez.(Wolin, Alan) (Entered: 02/08/2005)
227 Defendant Scott Rosebery's ANSWER to Amended Complaint, CROSSCLAIM against United States by Scott Rosebery.(Wolin, Alan) (Entered: 02/08/2005)
228 RESPONSE in Opposition re 202 MOTION to Substitute Party United States filed by all plaintiffs. (Green, Jennifer) (Entered: 02/08/2005)
229 MOTION to Appoint Counsel (Motion for Admission of Matthew Strugar, Esq., as Pro Hac Vice Counsel for Plaintiffs) by all plaintiffs. (Chang, Nancy) (Entered: 02/08/2005)
ORDER declining plaintiffs offer to submit a sur−reply brief to the Government's motion for substitution of defendants, as set forth in a letter from Jennifer M. Green dated February 8, 2005. Signed by Judge John Gleeson on February 10, 2005. (Gleeson, John) (Entered: 02/10/2005)
230 ANSWER to Amended Complaint by Lindsey Bledsoe. (Attachments: # 1 Supplement continued answer# 2 Supplement continued answer)(Richman, Labe) (Entered: 02/11/2005)
231 NOTICE by Raymond Mickens Initial Disclosures Pursuant to Rule 26(a)(1) FRCP (Rosenstock, E.) (Entered: 02/11/2005)
233 Letter dated 2/7/05 from Michael G. Kruzysnki to Mag. Pollak, confirming the conference call on 2/9/05 at 11:00. (Piper, Francine) (Entered: 02/16/2005)
234 ORDER granting 229 Motion to Appoint Counsel Appointed Matthew D. Strugar for Shakir Baloch; Hany Ibrahim; Yasser Ebrahim; Ashraf Ibrahim; akhil sachdeva; Asif−Ur−Rehman Saffi; Syed Amjad Ali Jaffri; Ibrahim Turkmen and Akil Sachveda. (Signed by Judge John Gleeson on 2/16/05) (Piper, Francine) (Entered: 02/22/2005)
235 ORDER granting 200 Motion for Debra L. Roth to Appear Pro Hac Vice. (Signed by JudgeJohn Gleeson on 2/16/05) (Piper, Francine) (Entered: 02/22/2005)
243 Initial Disclosures Pursuant to Rule 26 (a)(1) by William Beck (Piper, Francine) (Entered: 03/03/2005)
236 ORDER, endorsed on letter dated 2/9/05 from Michael Kruzynski to Mag. Pollak, dft Christopher Witschel is granted until 2/28/05 to answer the complaint. (Signed by Judge Cheryl L. Pollak on 2/16/05) (Piper, Francine) (Entered: 02/23/2005)

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237 REPLY to Response to Motion re 208 First MOTION to Dismiss Third Amended Complaint filed by Clemett Shacks. (Attachments: # 1)(Lasky, Barry) (Entered: 02/23/2005)
238 RESPONSE in Opposition re 208 First MOTION to Dismiss Third Amended Complaint by Defendant Clemmet Shacks filed by all plaintiffs. (Winger, Michael) (Entered: 02/23/2005)
239 Letter from Stephanie Yu to Hon. John Gleeson Regarding typographical error in Plaintiffs? Memorandum in Opposition to the Motion of Defendant Clemmet Shacks to Dismiss the Third Amended Complaint. (Winger, Michael) (Entered: 02/23/2005)
240 ENDORSED LETTER ORDER. Letter dated 2/24/05 from Michael Kruzynski requesting an extension of time to answer to April 25, 2005. REQUEST GRANTED. Signed by Judge Cheryl L. Pollak on 2/25/05. (Caggiano, Diana) (Entered: 02/25/2005)
241 INTERROGATORIES Propounded to plaintiffs by Raymond Cotton.(Shivers, Yvonne) (Entered: 02/25/2005)
242 REQUEST for Production of Documents by Raymond Cotton.(Shivers, Yvonne) (Entered: 02/25/2005)
266 Letter dated 3/1/05 from Matthew Struger to Robert C. Heinemann, enclosing a check for the $25.00 attorney admission fee for pro hac vice admission. Filing Fee $25.00. Receipt #306696. (Piper, Francine) (Entered: 03/18/2005)
244 Letter dated 11/17/04 from Nany Chang to Judge Gleeson, pltffs opposes the request for an expansion of page limits for the six original dfts so that their briefs will total 390 pages. (Piper, Francine) (Entered: 03/04/2005)
245 Letter dated 11/19/04 from James Ryan to Mag. Pollak, requesting that the discovery request be served in conjunction with dft Steven Barrere's answer on or before 12/7/04 and that pltff's responses be due thirty days thereafter. (Piper, Francine) (Entered: 03/04/2005)
246 NOTICE of Appearance by Alan E. Wolin on behalf of Sydney Chase (Wolin, Alan) (Entered: 03/08/2005)
247 NOTICE by Lindsey Bledsoe Initial FRCP 26(a)(1) disclosure (Richman, Labe) (Entered: 03/11/2005)
248 NOTICE of Appearance by Labe M. Richman on behalf of Lindsey Bledsoe (Richman, Labe) (Entered: 03/11/2005)
249 NOTICE by Sydney Chase Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/14/2005)
250 NOTICE by Michael Defrancisco Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/14/2005)
251 NOTICE by Richard Diaz Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/14/2005)
252 NOTICE by Mario Machado Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/14/2005)
253 NOTICE by Brian Rodriguez Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/14/2005)
254 NOTICE by Scott Rosebery Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/14/2005)
255 NOTICE by Raymond Mickens to Take Oral Deposition of Akhil Sachdeva (Rosenstock, E.) (Entered: 03/15/2005)
256 NOTICE by Raymond Mickens to Take oral Deposition of Ashraf Ibrahim (Rosenstock, E.) (Entered: 03/15/2005)

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257 NOTICE by Raymond Mickens to Take oral Deposition of Asif−Ur− Rehman (Rosenstock, E.) (Entered: 03/15/2005)
258 NOTICE by Raymond Mickens to Take oral Deposition of Hany Ibrahim (Rosenstock, E.) (Entered: 03/15/2005)
259 NOTICE by Raymond Mickens to Take Oral Deposition of Ibrahim Turkman (Rosenstock, E.) (Entered: 03/15/2005)
260 NOTICE by Raymond Mickens to Take Oral Deposition of Shakir Baloch (Rosenstock, E.) (Entered: 03/15/2005)
261 NOTICE by Raymond Mickens to Take Oral Deposition of Syed Amjad Ali Jafri (Rosenstock, E.) (Entered: 03/15/2005)
262 NOTICE by Raymond Mickens to Take Oral Deposition of Yasser Ebrahim (Rosenstock, E.) (Entered: 03/15/2005)
263 ANSWER to Interrogatories by Raymond Cotton.(Shivers, Yvonne) (Entered: 03/15/2005)
264 NOTICE by James W. Ziglar, Dennis Hasty, United States, Michael Zenk, John Ashcroft, Robert Mueller re 206 Response in Opposition to Motion, 207 Reply to Response to Motion, 205 MOTION to Dismiss the Third Amended Complaint Notice of Supplemental Authority (Attachments: # 1 Appendix Romero v. U.S.I.N.S.)(Molina, Ernesto) (Entered: 03/15/2005)
265 Letter from Michael Winger to Hon. John Gleeson Regarding 264 Notice of Supplemental Authority. (Winger, Michael) (Entered: 03/17/2005)
267 Letter from Rachel Meeropol to Mag. Judge Pollak Regarding Proposed Discovery Order. (Meeropol, Rachel) (Entered: 03/18/2005)
268 ORDER re 267 Letter. Signed by Judge Cheryl L. Pollak on 3/18/05. (Caggiano, Diana) (Entered: 03/18/2005)
269 INTERROGATORIES Propounded to Plaintiffs by Brian Rodriguez, Sydney Chase, Michael Defrancisco, Richard Diaz, Mario Machado, Scott Rosebery.(Wolin, Alan) (Entered: 03/21/2005)
270 REQUEST for Production of Documents by Brian Rodriguez, Sydney Chase, Michael Defrancisco, Richard Diaz, Mario Machado, Scott Rosebery.(Wolin, Alan) (Entered: 03/21/2005)
271 NOTICE by Brian Rodriguez, Sydney Chase, Michael Defrancisco, Richard Diaz, Mario Machado, Scott Rosebery To Take Deposition of Ibrahim Turkmen, Asif−Ur−Rehman Saffi, Syed Amjad Alijaffri, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, Akhil Sachdeva and Ashraf Ibrahim (Wolin, Alan) (Entered: 03/21/2005)
272 AFFIDAVIT re 179 Answer to Amended Complaint inadvertently omitted from original filing by Steven Barrere. (Ryan, James) (Entered: 03/21/2005)
273 AFFIDAVIT re 180 Disclosure of Interested Parties inadvertently omitted from original filing by Steven Barrere. (Ryan, James) (Entered: 03/21/2005)
274 Partial ANSWER to Amended Complaint by Dennis Hasty.(Lahlou, Shari) (Entered: 03/21/2005)
275 Partial ANSWER to Amended Complaint by Michael Zenk.(Taffet, Allan) (Entered: 03/21/2005)
276 REQUEST for Production of Documents by Clemett Shacks.(Lasky, Barry) (Entered: 03/31/2005)
277 INTERROGATORIES Propounded to Plaintiffs by Clemett Shacks.(Lasky, Barry) (Entered: 03/31/2005)
278 DEPOSITION of Plaintiffs taken on May 19, 2005 by Clemett Shacks.(Lasky, Barry) (Entered: 03/31/2005)

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279 NOTICE by Clemett Shacks Rule 26 (Lasky, Barry) (Entered: 03/31/2005)
280 NOTICE of Voluntary Dismissal by Michael Defrancisco, Richard Diaz, Mario Machado, Brian Rodriguez, Scott Rosebery (Wolin, Alan) (Entered: 04/01/2005)
281 INTERROGATORIES Propounded to plaintiffs by Raymond Mickens.(Rosenstock, E.) (Entered: 04/01/2005)
282 NOTICE to Take Deposition of Ibrahim Turkmen, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffir, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, Akhil Sachdeva, and Ashraf Ibrahim by Lindsey Bledsoe.(Richman, Labe) (Entered: 04/05/2005)
283 INTERROGATORIES Propounded to all plaintiffs by Lindsey Bledsoe.(Richman, Labe) (Entered: 04/05/2005)
284 REQUEST for Production of Documents by Lindsey Bledsoe.(Richman, Labe) (Entered: 04/05/2005)
285 RESCHEDULING ORDER: The Status Conference previously scheduled for APRIL 11, 2005 has been rescheduled to MAY 3, 2005 at 3:00 P.M. before the Honorable Cheryl L. Pollak. Signed by Judge Cheryl L. Pollak on 4/6/05. (Caggiano, Diana) (Entered: 04/06/2005)
286 Letter dateed 2/3/05 from Michael Kruzynski to Mag. Pollak, requesting a further extension of time on behalf of Mr. Witschel to answer the complaint. (Piper, Francine) (Entered: 04/07/2005)
287 Letter from E. Michael Rosenstock to Magistrate Pollak Regarding Extension of time to respond to plaintiffs' interrogatories. (Rosenstock, E.) (Entered: 04/07/2005)
288 Letter from Counsel for Plaintiffs to Mag. Judge Pollak Regarding Depositions of Plaintiffs Noticed in Next Month. (Meeropol, Rachel) (Entered: 04/08/2005)
289 Letter dated 3/2/05 from Ernesto H. Molina to Judge Pollak Regarding deft United States and the named defts in their Offical Capacities are taking steps to supplement prior discovery. (Drayton, Lorraine) (Entered: 04/08/2005)
290 ORDER granting 219 Motion to Withdraw as Attorney. Attorney Barbara J. Olshansky terminated. (Ordered by Judge John Gleeson on 2/11/05) (Piper, Francine) (Entered: 04/08/2005)
291 INTERROGATORIES Propounded to Plaintiffs by Clemett Shacks.(Lasky, Barry) (Entered: 04/08/2005)
292 INTERROGATORIES Propounded to pLAINTIFFS by Clemett Shacks.(Lasky, Barry) (Entered: 04/08/2005)
293 ENDORSED LETTER ORDER re 288 Letter. RULING − Depositions are deferred until the conference before this Court on 5/3/05. Counsel for the U.S. is directed to come prepared to address the government's position with respect to the limited entry of plaintiffs for testimony. Ordered by Judge Cheryl L. Pollak on 4/8/05. (Caggiano, Diana) (Entered: 04/08/2005)
294 ENDORSED LETTER ORDER re 287 Letter. RULING − So Ordered. Ordered by Judge Cheryl L. Pollak on 4/8/05. (Caggiano, Diana) (Entered: 04/08/2005)
295 Letter from Debra L. Roth to Judge Gleeson Regarding Assignment of Turkmen and Elmaghraby cases to one magistrate judge. (Sullivan, Thomas) (Entered: 04/11/2005)
296 Letter from Barry M. Lasky and Scott L. Steinberg dated 1/27/05 to Judge Gleeson advising the Court that they have served defendant, Clemmet's motion to dismiss and supporting papers. (Hunter−Hicks, Tara) (Entered: 04/12/2005)
297 Letter from Counsel for Plaintiffs to Hon. Judge Gleeson Regarding 4.11.05 Ltr from Debra Roth. (Meeropol, Rachel) (Entered: 04/12/2005)
298 Letter from E. M. Rosenstock to Rachel Meeropol Regarding Defendant Mickens' Amended Interrogatories. (Rosenstock, E.) (Entered: 04/12/2005)

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299 INTERROGATORIES Propounded to Plaintiffs by Raymond Mickens.(Rosenstock, E.) (Entered: 04/12/2005)
300 ANSWER to Interrogatories from Defendant Mickens by Raymond Mickens.(Rosenstock, E.) (Entered: 04/15/2005)
301 ORDER: The Clerk of the Court is respectfully directed to reassign the case to Judge Gold. Ordered by Judge John Gleeson on April 18, 2005. (Gleeson, John) (Entered: 04/18/2005)
Pursuant to Judge Gleeson's order of 4/18/05: Mag. Judge Steven M. Gold added. (Vaughn, Terry). (Entered: 04/19/2005)
302 ORDER: Due to the recent reassignment of the above−captioned related cases to the undersigned, an in−person status conference will be held on all three cases at 12 noon on Friday, May 6, 2005. By close of business on April 29, 2005, counsel in all three cases shall electronically submit a status report to the Court, alerting the Court in particular to any outstanding issues that need to be addressed at the conference. So Ordered. See Attached Order. Ordered by Judge Steven M. Gold on 04/20/2005. (O'Connor, Erin) (Entered: 04/20/2005)
303 ANSWER to Interrogatories from Sydney Chase by Sydney Chase.(Wolin, Alan) (Entered: 04/22/2005)
304 ANSWER to Interrogatories from Michael DeFrancisco by Michael Defrancisco.(Wolin, Alan) (Entered: 04/22/2005)
305 ANSWER to Interrogatories from Richard Diaz by Richard Diaz.(Wolin, Alan) (Entered: 04/22/2005)
306 ANSWER to Interrogatories from Mario Machado by Mario Machado.(Wolin, Alan) (Entered: 04/22/2005)
307 ANSWER to Interrogatories from Brian Rodriguez by Brian Rodriguez.(Wolin, Alan) (Entered: 04/22/2005)
308 ANSWER to Interrogatories from Scott Rosebery by Scott Rosebery.(Wolin, Alan) (Entered: 04/22/2005)
309 ANSWER to Amended Complaint by Christopher Witschel.(Saville, John) (Entered: 04/22/2005)
310 Letter from Mark A. Cuthbertson, co−counsel to James F. Matthews to Honorable Steven M. Gold, USMJ Regarding Extension of time to respond to discovery requests. (Matthews, James) (Entered: 04/25/2005)
ORDER re 310 Letter:Defendant Mundo's request, with consent of plaintiffs, to extend the time to answer discovery demands by one week is GRANTED. Defendant Mundo shall respond to plaintiffs' demands by May 15, 2005. So Ordered. Ordered by Judge Steven M. Gold on 04/25/2005. (O'Connor, Erin) (Entered: 04/25/2005)
311 Letter from E. Michael Rosenstock to Magistrate Steven M. Gold Regarding Status Report. (Rosenstock, E.) (Entered: 04/28/2005)
312 STATUS REPORT Status Report to Hon. Steven M. Gold in Turkmen, et al. v. Ashcroft, et al., 02cv2307 (JG); Elmaghraby, et al. v. Ashcroft, et al., 04cv1809 (JG); and Kurzberg, et al. v. Ashcroft, et al. 04cv3950 (JG) from Dennis C. Barghaan, Jr., AUSA − Special DOJ Attorney, on behalf of the individual−capacity defendants John Ashcroft, Robert Mueller, James Ziglar, Kathleen Hawk−Sawyer, Michael Rolince, and Kenneth Maxwell. by James W. Ziglar, John Ashcroft, Robert Mueller. (Sponseller, Richard) (Entered: 04/29/2005)
313 STATUS REPORT by Clemett Shacks. (Lasky, Barry) (Entered: 04/29/2005)
314 STATUS REPORT by Dennis Hasty, James Sherman, Michael Zenk. (Smart, Kyler) (Entered: 04/29/2005)
315 STATUS REPORT by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 04/29/2005)

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316 STATUS REPORT In Response To Order of April 20, 2005 by United States. (Molina, Ernesto) (Entered: 04/29/2005)
317 Letter from John B. Saville, Esq. to Hon. Steven M. Gold Regarding Status Report. (Saville, John) (Entered: 04/29/2005)
SCHEDULING ORDER:The conference previously scheduled for 12 noon on May 6, 2005 will be held instead at 10:30 a.m. on May 6, 2005. Counsel shall confer with each other to ensure that all parties are aware of the change in time. So Ordered. Ordered by Judge Steven M. Gold on 05/02/2005. (O'Connor, Erin) (Entered: 05/02/2005)
318 Letter from Debra L. Roth to Judge Gleeson Regarding Proposed Briefing Schedule for Defendant's Motion to Dismiss. (Sullivan, Thomas) (Entered: 05/02/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/6/2005. See also 04CV1809 and 04CV3950. (Tape #ESR 63−64/05.) Mirapole for Turkmen plaintiffs, Reinert for Elmaghraby plaintiffs, Tolchin for Kurzburg plaintiffs, Molina for US in Turkmen, Reinhardt for US in Elmaghraby, various counsel for remaining defendants. ESR 63−64/05. (1) The protective order previously entered in the Turkmen action shall apply in all three cases, subject to the proviso that individual defendants will have one week advance notice of their client's confidential documents within which to lodge objections to disclosure. Any objections to this preliminary ruling must be submitted in writing by 5/10; if no objections are received by that date, the order will become final and binding, and all counsel will be expected to sign the protective order within one week of today's date. (2) The United States represents that it will state its position regarding whether plaintiffs will be permitted to enter the United States for purposes of deposition within four weeks. If the United States agrees to allow plaintiffs to enter the US for purposes of being deposed, plaintiffs will be deposed before defendants. Said depositions shall be conducted beginning July 1. If not, those defendants who do not have motions to dismiss pending will be deposed first, beginning August 1. The defendants who have motions pending may not be deposed until their motions are decided, and may either participate in the depositions of plaintiffs in the US if same are held, or defer their depositions of plaintiffs to a later date in plaintiffs' home countries. (3) All videotapes must be produced, at the expense of the party seeking them, within one week. (4) Defendants who have been properly served shall enter a notice of appearance or answer within 30 days, or plaintiffs may seek notice of default with respect to them. Counsel for the United States shall communicate the substance of this order to Rafael Gomez of the "Federal Program," which has played some role in coordinating communications with unrepresented defendants in these actions. (5) Defendants shall attempt to coordinate service of interrogatories and document demands by June 22, 2005, with responses due July 22, 2005. Any defendant who chooses to serve discovery demands on a later date must first review previously disclosed responses and certify that the new demands are not duplicative. Duplication may be a grounds for objection. (6) Kurzburg plaintiffs' oral motion for additional time to accomplish service denied without prejudice to submit a formal motion seeking that relief. (7) Plaintiffs shall answer interrogaties and document demands previously served and now overdue by May 20. (8) Counsel are urged to coordinate their efforts, use list serves, document and videotape repositories and other means of coordinating their discovery efforts so that this case may progress efficiently. NEXT CONFERENCE: 2:00 PM ON JUNE 28, 2005.(Houlihan, Tina) (Entered: 05/09/2005)
323 Filing Fee Receipt #310013, $50.00. Pro Hac Vice Motions by Matthew Scarlato and Kyler Smart. (Piper, Francine) (Entered: 05/23/2005)
319 MOTION for Limited Admission to admit Pro Hac Vice Kyler E. Smart by Dennis Hasty. (Piper, Francine) (Entered: 05/16/2005)
320 ORDER granting 319 Kyler E. Smart Motion for Limited Admission. Ms. Smart must serve a copy of this Order on all other counsel and pay the required fee if she hasnt already. (Ordered by JudgeJohn Gleeson on 5/6/05) (Piper, Francine) (Entered: 05/16/2005)
321 MOTION for Limited Admission to admit Matthew F. Scarlato Pro Hac Vice by Dennis Hasty. (Piper, Francine) (Entered: 05/16/2005)

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322 ORDER granting 321 Matthew F. Scarlato Motion for Limited Admission. (Ordered by JudgeJohn Gleeson on 5/6/05) (Piper, Francine) (Entered: 05/16/2005)
324 Letter from Debra L. Roth to Judge Gleeson Regarding Service of Motion to Dismiss and Memorandum of Law on Counsel of Record. (Sullivan, Thomas) (Entered: 05/25/2005)
325 ANSWER to Amended Complaint by Joseph Cuciti.(Wolin, Alan) (Entered: 06/03/2005)
326 Letter from Stephen Handler to Judge Steven M. Gold Regarding plaintiffs depositions. (Molina, Ernesto) (Entered: 06/03/2005)
ORDER re 326 Letter: The Court has received the letter from counsel for the United States dated June 3, 2005, seeking to extend until June 24 the time for stating the government's position with respect to whether plaintiffs will be permitted to enter the United States for purposes of deposition. The application for additional time is granted. If the government has not announced its agreement to permit plaintiffs to enter the United States for purposes of deposition by that date, plaintiffs' counsel may begin to issue notices for depositions of defendants, to be held on dates beginning after August 1, 2005, as provided by the Court during the conference held on May 6, 2005 . Ordered by Judge Steven M. Gold on 6/3/05. (Gold, Steven) (Entered: 06/03/2005)
327 NOTICE of Appearance by Raymond P. Cash on behalf of Ibrahim Turkmen (Cash, Raymond) (Entered: 06/09/2005)
328 NOTICE by Joseph Cuciti Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 06/17/2005)
329 DEPOSITION of Plaintiffs taken on Date To Be Determined by Joseph Cuciti.(Wolin, Alan) (Entered: 06/20/2005)
330 INTERROGATORIES Propounded to Plaintiffs by Joseph Cuciti.(Wolin, Alan) (Entered: 06/20/2005)
331 REQUEST for Production of Documents by Joseph Cuciti.(Wolin, Alan) (Entered: 06/20/2005)
332 Letter from Steven Handler to Magistrate Judge Gold Regarding parole of plaintiffs for depositions. (Molina, Ernesto) (Entered: 06/24/2005)
333 Letter from Counsel for Plaintiffs to Magistrate Judge Gold Regarding Proposed modification to protective order. (Meeropol, Rachel) (Entered: 06/28/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 6/28/2005. Also 04−1809 and 04−3950 (Tape #ESR 90/05.) Counsel for all parties other than Kurzburg plaintiffs present. ESR 90/05. (1) Proposed revisions to protective order put forward by counsel for Turkmen plaintiffs are approved, absent objection no later than July 1 from any counsel who has not yet reviewed them. (2) Counsel shall work together on protocol for scheduling depositions and IMEs of plaintiffs to be paroled into US for limited purpose of participating in this case. (3) At next conference, counsel shall be prepared to discuss whether the case has reached the point where settlement discussions might be productive and, if so, the format for holding same. NEXT CONF: SEPT 8 AT 3 PM.(Houlihan, Tina) (Entered: 06/29/2005)
334 Letter from Ernesto Molina to Magistrate Judge Gold Regarding amendment/objection to protection order. (Molina, Ernesto) (Entered: 07/01/2005)
335 Letter from Counsel for Plaintiffs to Judge Gold Regarding Modification of the Protective Order. (Meeropol, Rachel) (Entered: 07/06/2005)
341 MOTION for Leave to Appear Pro Hac Vice as to Bassel Bakhos by James W. Ziglar. (Piper, Francine) (Entered: 07/19/2005)
342 ORDER granting 341 Motion for Leave to Appear Pro Hac Vice. (Ordered by JudgeJohn Gleeson on 7/13/05) (Piper, Francine) (Entered: 07/19/2005)
336 MOTION to Dismiss Third Amended Complaint by James Sherman. (Attachments: # 1 Memorandum of Law in Support)(Sullivan, Thomas) (Entered: 07/11/2005)

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337 RESPONSE in Opposition re 336 MOTION to Dismiss Third Amended Complaint filed by all plaintiffs. (Sullivan, Thomas) (Entered: 07/11/2005)
338 REPLY to Response to Motion re 336 MOTION to Dismiss Third Amended Complaint filed by James Sherman. (Sullivan, Thomas) (Entered: 07/11/2005)
339 TRANSCRIPT of Status Conference held on 6/28/05 before Judge Steven M. Gold. Court Reporter: Rosalie Lombardi, L.F., Transcription Plus II. Docketed as No. 259 in 04 CV 1809. (Black, Amanda) (Entered: 07/13/2005)
340 RESPONSE in Opposition re 205 MOTION to Dismiss the Third Amended Complaint Letter Concerning New Authority filed by all plaintiffs. (Green, Jennifer) (Entered: 07/15/2005)
343 Filing Fee Paid $25.00 Pro Hac Vice Motion. Receipt #312452. (Piper, Francine) (Entered: 07/19/2005)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 7/26/2005. (Tape #ESR 94/05.)Meerepol, Yoon and Reinhart for plaintiffs. Molina and Handler for defendants. ESR 94/05. The Government's letter application of July 1, 2005, seeking an order requiring inclusion of propsed para. 18 in the protective order to be entered in this case, is denied without prejudice to propose a more narrowly tailored provision which addresses the concerns I expressed on the record of today's conference. (Houlihan, Tina) (Entered: 07/27/2005)
344 First MOTION for Default Judgment as to Defendant Philip Barnes by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
345 First MOTION for Default Judgment as to Defendant James Cuffee by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
346 First MOTION for Default Judgment as to Defendant Kevin Lopez by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
347 First MOTION for Default Judgment as to Defendant Salvatore Lopresti by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
348 First MOTION for Default Judgment as to Defendant Michael McCabe by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
349 First MOTION for Default Judgment as to Defendant Daniel Ortiz by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
350 First MOTION for Default Judgment as to Defendant Stuart Prey by all plaintiffs. (Meeropol, Rachel) (Entered: 08/01/2005)
351 Letter from Counsel for Plaintiffs to Judge Gold Regarding Modified Protective Order. (Meeropol, Rachel) (Entered: 08/03/2005)
PROTECTIVE ORDER: The protective order submitted via letter of plaintiffs' counsel dated August 3, 2005 [docket entry 351] is hereby ENTERED. Ordered by Judge Steven M. Gold on 08/05/05. (Gold, Steven) (Entered: 08/05/2005)
352 Letter from Counsel for Plaintiffs to Judge Gold Regarding Conditions of Parole for Depositions. (Meeropol, Rachel) (Entered: 08/12/2005)
ORDER re 352 Letter :In response to the letter from counsel for plaintiffs in this matter a telephone conference has been scheduled for AUGUST 24, 2005 at 3:00 p.m. before the Honorable Steven M. Gold, United States Magistrate Judge at (718) 260−2560. Ms. Meeropol is directed to arrange the call as well as confirm with all parties that they are aware of this conference. Ordered by Judge Steven M. Gold on 08−12−2005. (Houlihan, Tina) (Entered: 08/12/2005)
353 Letter from Def. United States by Stephen Handler to Magistrate Judge Gold Regarding Plaintiffs' 8−12−05 Letter re: Conditions of Parole. (Handler, Stephen) (Entered: 08/19/2005)
354 Letter from David Koenigsberg, Esq. to Magistrate Judge Gold Regarding Plaintiffs' Depositions. (Koenigsberg, David) (Entered: 08/22/2005)

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Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 8/24/2005. Meeropol and Reiner for plaintiff, Handler and Molina for United States, Koeningsberg, Marino, Granger et al for other defendants. ESR 103 and 105/05. (1) United States will advise within one week whether it is able to accept the court's proposed modification to the declaration plaintiffs must execute to be paroled into the United States. If not, discovery of defendants will proceed first. (2) Plaintiffs will promptly, and in any event prior to the next conference now set for 9/8, advise which plaintiffs will seek entry to the United States to be deposed, and which will require medical examinations. (3) Defendants may seek further factual responses to interrogatories prior to the plaintiffs' depositions; plaintiffs may not object on the grounds that the information sought is more efficiently obtained by way of deposition. (4) The depositions will, absent further order of the court, be held over two days with 8 and 1/2 hours of questioning each day. The United States will have four hours, and the remaining defendants will share the rest of the time. Plaintiffs may submit their redirect by way of affidavit after returning home, and the affidavit will be treated for all procedural and evidentiary purposes as if part of the deposition. Defendants may leave the deposition open and reserve the right to ask additional deposition questions in writing after plaintiffs return to their home countries. (5) Remaining rulings stated on the record. (Tape #103, 105/05.) (Vasquez, Lea) (Entered: 08/25/2005)
355 AFFIDAVIT in Opposition re 346 First MOTION for Default Judgment as to Defendant Kevin Lopez by Kevin Lopez. (Attachments: # 1 Proposed Answer)(Cash, Raymond) (Entered: 08/25/2005)
356 NOTICE of Appearance by Richard Peter Caro on behalf of Stuart Pray (Caro, Richard) (Entered: 08/29/2005)
357 AFFIDAVIT in Opposition re 350 First MOTION for Default Judgment as to Defendant Stuart Prey filed by Stuart Pray. (Caro, Richard) (Entered: 08/29/2005)
358 RESPONSE in Opposition re 350 First MOTION for Default Judgment as to Defendant Stuart Prey filed by Stuart Pray. (Caro, Richard) (Entered: 08/29/2005)
359 First MOTION for Extension of Time to File Answer re 109 Amended Complaint Cross Motion by Stuart Pray. (Caro, Richard) (Entered: 08/29/2005)
360 CERTIFICATE OF SERVICE by Stuart Pray re 350 First MOTION for Default Judgment as to Defendant Stuart Prey (Caro, Richard) (Entered: 08/29/2005)
361 AFFIDAVIT in Opposition re 350 First MOTION for Default Judgment as to Defendant Stuart Prey Corrected Declaration filed by Stuart Pray. (Caro, Richard) (Entered: 08/29/2005)
362 CERTIFICATE OF SERVICE by Stuart Pray re 359 First MOTION for Extension of Time to File Answer re 109 Amended Complaint Cross Motion (Caro, Richard) (Entered: 08/29/2005)
363 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding United States' position regarding conditions of parole. (Handler, Stephen) (Entered: 08/30/2005)
364 AFFIDAVIT in Support re 346 First MOTION for Default Judgment as to Defendant Kevin Lopez filed by all plaintiffs. (Meeropol, Rachel) (Entered: 08/31/2005)
365 AFFIDAVIT in Opposition re 359 First MOTION for Extension of Time to File Answer re 109 Amended Complaint Cross Motion filed by all plaintiffs. (Meeropol, Rachel) (Entered: 08/31/2005)
366 AFFIDAVIT in Support re 350 First MOTION for Default Judgment as to Defendant Stuart Prey filed by all plaintiffs. (Meeropol, Rachel) (Entered: 08/31/2005)
367 REPLY to Response to Motion re 359 First MOTION for Extension of Time to File Answer re 109 Amended Complaint Cross Motion filed by Stuart Pray. (Caro, Richard) (Entered: 08/31/2005)
368 CERTIFICATE OF SERVICE by Stuart Pray (Caro, Richard) (Entered: 08/31/2005)
369 REPLY to Response to Motion re 359 First MOTION for Extension of Time to File Answer re 109 Amended Complaint Cross Motion Corrected Declaration filed by Stuart Pray. (Caro, Richard) (Entered: 09/01/2005)

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370 CERTIFICATE OF SERVICE by Stuart Pray (Caro, Richard) (Entered: 09/01/2005)
ORDER respectfully referring plaintiffs' applications for default judgment, the oppositions to those default judgments, and any future opposition to those judgments to Magistrate Judge Gold. Plaintiffs' alternative request to limit discovery is referred to Judge Gold as well. Ordered by Judge John Gleeson on September 6, 2005. (Gleeson, John) (Entered: 09/06/2005)
MOTIONS 346 First MOTION for Default Judgment as to Defendant Kevin Lopez, 347 First MOTION for Default Judgment as to Defendant Salvatore Lopresti, 345 First MOTION for Default Judgment as to Defendant James Cuffee, 348 First MOTION for Default Judgment as to Defendant Michael McCabe, 344 First MOTION for Default Judgment as to Defendant Philip Barnes, 349 First MOTION for Default Judgment as to Defendant Daniel Ortiz, 350 First MOTION for Default Judgment as to Defendant Stuart Prey and Pltff's alternative request to limit discovery is REFERRED to Judge Mag. Gold. (Piper, Francine) (Entered: 09/07/2005)
371 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding Postponement of September 8, 2005, Status Conference. (Handler, Stephen) (Entered: 09/07/2005)
372 NOTICE of Appearance by Thomas Gerard Teresky on behalf of Stuart Pray (Teresky, Thomas) (Entered: 09/07/2005)
ORDER re 371 LetterThe conference is adjourned without date. Counsel shall submit a status report to the Court within 60 days from the date of this Order.So Ordered by Judge Steven M. Gold on 09/07/2005. (Vasquez, Lea) (Entered: 09/07/2005)
378 ANSWER to Third Amended Complaint by Michael McCabe.(Piper, Francine) (Entered: 09/16/2005)
373 NOTICE of Appearance by Mehrdad Kohanim on behalf of James Cuffee (Kohanim, Mehrdad) (Entered: 09/13/2005)
ORDER granting 359 Motion for Extension of Time to Answer Stuart Pray answer due 9/14/2005.So Ordered by Judge Steven M. Gold on 09/13/2005. (Vasquez, Lea) (Entered: 09/13/2005)
374 Letter from Mehrdad Kohanim to Judge Gold Regarding James Cuffee − Default Opposition. (Kohanim, Mehrdad) (Entered: 09/13/2005)
375 ANSWER to Amended Complaint, CROSSCLAIM against United States by Stuart Pray.(Caro, Richard) (Entered: 09/13/2005)
376 CERTIFICATE OF SERVICE by Stuart Pray (Caro, Richard) (Entered: 09/13/2005)
ORDER re 374 LetterApplication by defendant Cuffee to file opposition by September 20, 2005 is GRANTED. So Ordered by Judge Steven M. Gold on 09/15/2005. (Vasquez, Lea) (Entered: 09/15/2005)
377 First MOTION for Reconsideration re Status Conference,,,,,, by Jon Osteen. (Koenigsberg, David) (Entered: 09/15/2005)
379 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding Co−defendants' request for reconsideration of order, dated August 25, 2005, limiting plaintiffs' depositions to two days. (Handler, Stephen) (Entered: 09/16/2005)
ORDER re 377 First MOTION for Reconsideration re Status Conference,,,,,, filed by Jon Osteen:The motion for reconsideration is denied. My prior order permits each plaintiff to be questioned by defendants for 17 hours, with 13 hours set aside for defendants other than the United States. Even after taking into account the complexity of this action and the language difficulties posed, this time should be sufficient if defense counsel work together to avoid duplicative questioning and proceed efficientl. Ordered by Judge Steven M. Gold on 09/16/05. (Gold, Steven) (Entered: 09/16/2005)
380 Cross MOTION to Vacate 345 First MOTION for Default Judgment as to Defendant James Cuffee by James Cuffee. (Attachments: # 1 # 2)(Kohanim, Mehrdad) (Entered: 09/19/2005)

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ORDER: Defendant Salvatore Lopresti opposes a motion for default judgment in Elmaghraby (04−cv−1809, docket entry 264) and Kurzberg (04−cv−3950, docket entry 51). While no such motions appear to have been filed in those cases, a motion for default judgment against Lopresti has been filed in Turkmen (02−cv−2307). Lopresti presumably opposes that motion for the reasons set forth in the papers he filed under the Elmaghraby and Kurtzberg matters. The application for default judgment against Lopresti has been referred to Judge Gold. (Ordered by Judge John Gleeson on September 21, 2005. (Gleeson, John) (Entered: 09/21/2005)
MOTIONS 347 First MOTION for Default Judgment as to Defendant Salvatore Lopresti REFERRED to Judge Mag. Gold. (Piper, Francine) (Entered: 09/22/2005)
381 Cross MOTION for Extension of Time to File Answer by Kevin Lopez. (Cash, Raymond) (Entered: 09/22/2005)
382 Notice of MOTION for Extension of Time to File Answer by Kevin Lopez. (Cash, Raymond) (Entered: 09/23/2005)
383 AFFIDAVIT in Opposition re 346 First MOTION for Default Judgment as to Defendant Kevin Lopez filed by Kevin Lopez. (Cash, Raymond) (Entered: 09/23/2005)
404 TRANSCRIPT of Status and discovery Conferene held on 5/6/05 before Judge Steven M. Gold. (Drayton, Lorraine) (Entered: 10/28/2005)
384 CERTIFICATE OF SERVICE by James Cuffee re 345 First MOTION for Default Judgment as to Defendant James Cuffee (Kohanim, Mehrdad) (Entered: 09/28/2005)
385 CERTIFICATE OF SERVICE by Kevin Lopez (Cash, Raymond) (Entered: 09/30/2005)
386 ANSWER to Amended Complaint by James Cuffee. (Attachments: # 1)(Kohanim, Mehrdad) (Entered: 09/30/2005)
387 Letter from Mehrdad Kohanim, Esq. to Magistrate Judge Gold Regarding James Cuffee Answer. (Kohanim, Mehrdad) (Entered: 09/30/2005)
405 TRANSCRIPT of Status and Discovery Conference held on 7/26/05 before Judge Steven M. Gold. (Drayton, Lorraine) (Entered: 10/28/2005)
406 TRANSCRIPT of Status and Discovery Conference held on 8/24/05 before Judge Steven M. Gold. (Drayton, Lorraine) (Entered: 10/28/2005)
388 Letter from Plaintiffs to Judge Gleeson Regarding Motion for Class Certification. (Meeropol, Rachel) (Entered: 10/03/2005)
ORDER: The issue of class certification is referred to Magistrate Judge Gold for a Report and Recommendation. Ordered by Judge John Gleeson on October 4, 2005. (Gleeson, John) (Entered: 10/04/2005)
389 Letter from Defendant Hasty to Magistrate Judge Gold Regarding Opposition to Plaintiffs' Request re Briefing Class Certification. (Smart, Kyler) (Entered: 10/07/2005)
390 Letter from Clay R. Mahaffey to Magistrate Judge Steven M. Gold Regarding Turkmen Plaintiffs' Request to Brief Class Certification. (Handler, Stephen) (Entered: 10/07/2005)
391 Letter from Plaintiffs to Judge Gold Regarding Motion for Class Certification. (Meeropol, Rachel) (Entered: 10/10/2005)
392 Letter from Richard P. Caro for Defendant Stuart Pray to Hon. Stephen M. Gold, U.S. Mag. Regarding Plaintiffs' Letter for Leave to File Motion for Class Certification. (Caro, Richard) (Entered: 10/11/2005)
393 Letter from Raymond Cash, Esq. to All Counsel of Record Regarding Permission from the court to file our answer.. (Cash, Raymond) (Entered: 10/13/2005)
394 ANSWER to Complaint by Kevin Lopez.(Cash, Raymond) (Entered: 10/13/2005)

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395 NOTICE of Appearance by Linda Cronin on behalf of Elizabeth Torres (Cronin, Linda) (Entered: 10/13/2005)
396 Letter from Raymond Cash to Magistrate Judge Gold Regarding Class certification. (Cash, Raymond) (Entered: 10/14/2005)
397 Letter from James G. Ryan to Honorable Steven M. Gold Regarding October 3, 2005 letter of Rachel Meeropol requestion permission to file a motion for class certification and proposing a briefing schedule. (Ryan, James) (Entered: 10/14/2005)
398 NOTICE of Change of Address of Counsel for Jon Osteen by David A Koenigsberg (Koenigsberg, David) (Entered: 10/17/2005)
399 Letter from Jennifer M. Green to the Honorable Judge John Gleeson Regarding Supplemental Authority. (Attachments: # 1 Exhibit)(Green, Jennifer) (Entered: 10/18/2005)
400 Letter from Richard P. Caro on behalf of Defendant Stuart Pray to Hon. Stephen M. Gold, U.S. Magistrate Regarding Plaintiffs' Refusal To Answer Interrogatories on the ground that Defendant Pray is in default. (Attachments: # 1 Exhibit Plaintiffs' Answers to Stuart Pray's First Set of Interrogatories)(Caro, Richard) (Entered: 10/24/2005)
401 Letter from Matthew Strugar to Magistrate Judge Gold Regarding Letter from Richard Caro (docket 400). (Winger, Michael) (Entered: 10/25/2005)
402 Letter from Richard P. caro on Behalf of Defendant Staurt Pray to Hon. Stephen M. Gold, U.S. Magistrate Regarding Reply To Plaintiffs Letter of October 25, 2005. (Caro, Richard) (Entered: 10/26/2005)
403 STATUS REPORT by United States. (Handler, Stephen) (Entered: 10/27/2005)
407 REPORT AND RECOMMENDATIONS re 380 Cross MOTION to Vacate 345 First MOTION for Default Judgment as to Defendant James Cuffee filed by James Cuffee,, 346 First MOTION for Default Judgment as to Defendant Kevin Lopez filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 347 First MOTION for Default Judgment as to Defendant Salvatore Lopresti filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 348 First MOTION for Default Judgment as to Defendant Michael McCabe filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 344 First MOTION for Default Judgment as to Defendant Philip Barnes filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 382 Notice of MOTION for Extension of Time to File Answer filed by Kevin Lopez,, 349 First MOTION for Default Judgment as to Defendant Daniel Ortiz filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 350 First MOTION for Default Judgment as to Defendant Stuart Prey filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 345 First MOTION for Default Judgment as to Defendant James Cuffee filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 381 Cross MOTION for Extension of Time to File Answer filed by Kevin Lopez, respectfully recommending that plaintiffs' motions seeking notations of default be granted with respect to defendants Barnes and Ortiz, and that plaintiffs' motions be denied with respect to defendants Cuffee, Lopez, Lopresti, McCabe and Pray, and that the answers filed by these defendants be accepted despite their having been filed out of time. Objections to R&R due by 11/18/2005. Ordered by Judge Steven M. Gold on 11/02/05. (Gold, Steven) (Entered: 11/02/2005)
408 Letter from David Koenigsberg to Hon. Steven M. Gold Regarding Depositions of Plaintiffs. (Koenigsberg, David) (Entered: 11/03/2005)
409 NOTICE of Appearance by Stephen E. Handler on behalf of United States (Handler, Stephen) (Entered: 11/03/2005)

11/03/2005
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410 SCHEDULING ORDER: Status Conference set for 11/8/2005 12:00 PM before Magistrate−Judge Steven M. Gold. So Ordered by Judge Steven M. Gold on 11/3/2005. (Vasquez, Lea) (Entered: 11/03/2005)
Email Notification Test − DO NOT REPLY. (Chee, Alvin) (Entered: 11/03/2005)
411 Letter from Richard P. Caro to Hon. Stephen M. Gold, U.S. Magistrate Regarding Status Report. (Caro, Richard) (Entered: 11/04/2005)
412 Letter from Rachel Meeropol to Judge Gold Regarding Status Report. (Meeropol, Rachel) (Entered: 11/04/2005)
NOTICE re 410 Scheduling Order ALL COUNSEL ARE DIRECTED TO APPEAR IN PERSON FOR THE CONFERENCE SCHEDULED FOR NOVEMBER 8, 2005.(Vasquez, Lea) (Entered: 11/04/2005)
413 STATUS REPORT by Steven Barrere. (Aranyos, Stephanie) (Entered: 11/07/2005)
414 STATUS REPORT by Dennis Hasty. (Smart, Kyler) (Entered: 11/07/2005)
415 STATUS REPORT Dated November 7, 2005 by Dennis Hasty, John Ashcroft, Robert Mueller. (Sponseller, Richard) (Entered: 11/07/2005)
416 STATUS REPORT by James W. Ziglar. (McDaniel, William) (Entered: 11/07/2005)
ORDER re 410 Scheduling Order: The conference will be held at 11:30 am as the order entered as document number 410 states, and not at 12 noon as the description of the document on the docket sheet indicates. Ordered by Judge Steven M. Gold on 11/07/05. (Gold, Steven) (Entered: 11/07/2005)
417 STATUS REPORT by Marcial Mundo. (Matthews, James) (Entered: 11/07/2005)
418 Letter from Y. Shivers to Magistrate Gold Regarding Status Report. (Shivers, Yvonne) (Entered: 11/07/2005)
419 STATUS REPORT dated November 7, 2005 by James Sherman. (Sullivan, Thomas) (Entered: 11/07/2005)
420 Letter from Kenneth C. Murphy to Honorable Steven M. Gold Regarding status. (Murphy, Kenneth) (Entered: 11/07/2005)
421 Letter from Joshua C. Klein to Magistrate Judge Gold Regarding Status Report. (Taffet, Allan) (Entered: 11/07/2005)
424 ANSWER to Third Amended Complaint by Salvatore LoPresti.(Piper, Francine) (Entered: 11/09/2005)
422 STATUS REPORT by Kevin Lopez. (Cash, Raymond) (Entered: 11/08/2005)
423 Letter from E. Michael Rosenstock to Magistrate Gold Regarding Status report. (Rosenstock, E.) (Entered: 11/08/2005)
425 Document No. 425 deleted from case at the request of counsel and approval of chambers. (Vaughn, Terry). (Entered: 11/11/2005)
426 Letter from Raymond Cash to All Counsel. (Cash, Raymond) (Entered: 11/14/2005)
427 Letter from Plaintiffs to Judge Gold Regarding scheduling of depositions and medical examinations. (Meeropol, Rachel) (Entered: 11/15/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 11/8/2005. ESR 132. Meerepol for Turkmen plaintiffs, Reinert for Elmaghraby plaintiffs, Handler and Molina for United States in both actions, various counsel present for individual defendants. (1) Turkmen plaintiffs will respond to defendant Pray's discovery requests promptly. (2) Plaintiffs will alert all pro se defendants of all court orders, minute entries, and conferences. WIth respect to pro se defendant Ortiz, counsel for the United States will either assume responsibility for notifying Ortiz of all court orders, minute entries, and conferences or provide plaintiffs' counsel with Ortiz' home address. (3) The schedule for paper discovery proposed in the letter submitted by the Turkmen plaintiffs dated November 4, 2005, at page 2, is adopted in the Turkman and Elmaghraby cases. (5) A CONFERENCE TO DISCUSS MODIFICATION OF

11/17/2005
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11/28/2005 11/28/2005 11/30/2005

THE SCHEDULE FOR DEPOSING PLAINTIFFS WILL BE HELD AT 5:30 PM ON NOVEMBER 15, 2005. Although all counsel and parties are of course welcome to attend, those present will include, at a mimimum, counsel for plaintiffs, counsel for the U.S., and the members of informal planning group of counsel for the individual defendants (Stephanie Aranyos, counsel for defendant Barrere; Linda Marino, counsel for defendant Thomas; David Koenigsberg, counsel for defendants Perez and Osteen; Raymond Granger, counsel for defendant Rardin). (6) Plaintiffs in Turkmen will submit a draft of their class certification motion no later than 30 days before the first plaiintiff is deposed, and their final brief within 15 days of conclusion of the last plaintiffs' deposition. No objections or arguments in opposition to class certification may be based upon any discrepancies between the draft brief and the final papers submitted by plaintiffs. Opposition to class certification will be submitted within 30 days of service of moving papers, and replies within 15 days of service of opposition. (7) The request to extend time to answer by defendants in Elmaghraby who are appealing Judge Gleeson's decision is granted, without prejudice to plaintiffs' rights to seek discovery or defendants' rights to seek a stay or protective order, while the appeal is pending. (8) Any supplemental paper discovery demands by defendants of plaintiffs must be served within three weeks. Plaintiffs will respond within 30 days. (Tape #132.) (Vasquez, Lea) (Entered: 11/16/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 11/15/2005. Meerepol for Turkmen pls, Reinert for Elmaghraby pls, Handler for United States, Koenigsberg, Marino, Granger and Aranyos for defendants. (1) Depositions will proceed as provided on the record during today's conference. Counsel will submit a stipulation memorializing those procedures by 11/30. (2) United States will produce OIA documents within three weeks. (3) STATUS CONF: DECEMBER 14 AT 4:30 PM. Counsel to submit a letter setting forth issues to be addressed by December 12.ESR 134−35/05 (Tape #134−35/05.) (Vasquez, Lea) (Entered: 11/17/2005)
435 MOTION for Leave to Appear Pro Hac Vice (Justin P. Murphy) by Dennis Hasty. (Piper, Francine) (Entered: 12/07/2005)
436 FILING FEE: $ 25.00, receipt number 318063 (Piper, Francine) (Entered: 12/07/2005)
437 ORDER granting 435 Motion for Leave to Appear Pro Hac Vice. (Ordered by JudgeJohn Gleeson on 11/22/05) (Piper, Francine) (Entered: 12/07/2005)
428 Letter from Richard P. Caro to Hon. Stephen M. Gold, U.S. Magistrate Regarding Time for Plaintiffs to Respond to Pray's September Discovery Requests. (Caro, Richard) (Entered: 11/19/2005)
429 Letter from Counsel for Plaintiffs to Judge Gold Regarding time for Plaintiffs to respond to Defendant Pray's Discovery Requests. (Meeropol, Rachel) (Entered: 11/22/2005)
ORDER re 428 Letter, 429 Letter: Plaintiffs' application to respond to defendant Pray's outstanding discovery demands pursuant to the coordinated discovery schedule generally applicable to all other parties is granted, because coordinating responses will enhance efficiency without prejudice to defendant Pray. Ordered by Judge Steven M. Gold on 11/22/05. (Gold, Steven) (Entered: 11/22/2005)
430 Letter from David Koenigsberg to Magistrate Judge Gold Regarding Request to Extend Time for the Parties to Submit Stipulation and Proposed Order to December 2, 2005. (Koenigsberg, David) (Entered: 11/28/2005)
ORDER re 430 LetterDefendant's application extending the deadline from November 30th to December 2nd to submit a stipulation is GRANTED. So Ordered by Judge Steven M. Gold on 11/28/2005. (Vasquez, Lea) (Entered: 11/28/2005)
ORDER: The Report and Recommendation of Magistrate Judge Gold 407 dated November 2, 2005 is hereby adopted. Accordingly, the clerk is respectfully directed to note the defaults of defendants Barnes and Ortiz. The plaintiffs' motions for defaults with respect to defendants Cuffee, Lopez, LoPresti, McCabe, and Pray are denied, and the answers filed by these defendants are accepted. Ordered by Judge John Gleeson on November 30, 2005. (Gleeson, John) (Entered: 11/30/2005)

11/30/2005
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Motions terminated: 344 First MOTION for Default Judgment as to Defendant Philip Barnes filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,, 349 First MOTION for Default Judgment as to Defendant Daniel Ortiz filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim,.(Ordered by Judge John Gleeson on 11/30/05) (Piper, Francine) (Entered: 03/31/2006)
431 DISCLOSURE of Interested Parties by James Cuffee.(Kohanim, Mehrdad) (Entered: 12/01/2005)
432 MOTION for Discovery (unopposed motion for consent order) by United States. (Handler, Stephen) (Entered: 12/02/2005)
433 Letter from Stephen Handler to Magistrate Judge Gold Regarding Stipulation. (Handler, Stephen) (Entered: 12/02/2005)
434 Letter from Stephen Handler to Magistrate Judge Gold Regarding unresolved terms in Stipulation. (Handler, Stephen) (Entered: 12/06/2005)
438 NOTICE by James Cuffee Interrogatories to Plaintiffs (Attachments: # 1)(Kohanim, Mehrdad) (Entered: 12/07/2005)
439 NOTICE by James Cuffee Request For Production of Documents to Plaintiffs (Attachments: # 1)(Kohanim, Mehrdad) (Entered: 12/07/2005)
440 ORDER The conference currently scheduled for Wednesday, December 14, 2005 will instead be held at 3:30 p.m. on Monday, December 12, 2005. All counsel for plaintiffs and defendants on the Steering Committee shall participate in person. Plaintiff's counsel will arrange a call in number for other defendants to participate. So Ordered by Judge Steven M. Gold on 12/9/2005.(Vasquez, Lea) (Entered: 12/09/2005)
441 Letter from David Koenigsberg to Magistrate Judge Gold Regarding Plaintiffs' Depositions. (Koenigsberg, David) (Entered: 12/09/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 12/12/2005. Ron Tolkin, Court reporter. Meerepol and Reinert for pls, Handler et al for defendants. (1) The United States will state by letter within 3 days whether it will accept the court's proposal with respect to the amounts plaintiffs should be required to pay to come to the United States for deposition. If the United States cannot accept the Court's proposal, plaintiffs may be deposed on written questions or by telephone. (2) The objections of plaintiffs Iqbal and Elmaghraby to the interrogatories of Linda Thomas, to the extent based upon the number of interrogatories, are denied. Counsel are instructed to renew their efforts to resolve any remaining disputes pursuant to the discussion held on the record of today's proceedings. (3) The motions to stay discovery, made by those individual defendants who have appealed the denial of their motions to dismiss, will be held in abeyance until counsel advise me that discovery demands have been served and that the motion needs to be decided. A STATUS CONFERENCE WILL BE HELD AT 3:00 PM ON JANUARY 10, 2006. (Court Reporter Tolkin.) (Vasquez, Lea) (Entered: 12/12/2005)
442 Letter from Stephen Handler to Magistrate Judge Gold Regarding United States' request for an additional day to state its position regarding the costs of the discovery plan. (Handler, Stephen) (Entered: 12/15/2005)
445 TRANSCRIPT of Civil Cause for Oral Argument held on 11/15/05 before Judge Steven M. Gold. Court Reporter: Elizabeth Barron. (Drayton, Lorraine) (Entered: 12/21/2005)
443 Letter from Clay Mahaffey to Magistrate Judge Gold Regarding United States' position as to costs associated with plaintiffs' parole and depositions. (Handler, Stephen) (Entered: 12/16/2005)
444 Letter from Michael Winger to Hon. Steven M. Gold Regarding Letter of Clay Mahaffey [Docket Entry 443]. (Winger, Michael) (Entered: 12/19/2005)

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446 Letter from Stephen Handler to Magistrate Judge Gold Regarding revised costs regarding plaintiffs' depositions and associated security and lodging. (Handler, Stephen) (Entered: 12/23/2005)
447 MOTION for Protective Order re: personnel records by Marcial Mundo. (Matthews, James) (Entered: 12/27/2005)
448 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere by Steven Barrere. (Ryan, James) (Entered: 12/28/2005)
449 Letter from Stephen Handler to Magistrate Judge Gold Regarding co−defendants' motions for protective order. (Handler, Stephen) (Entered: 12/28/2005)
450 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records by Jon Osteen. (Koenigsberg, David) (Entered: 12/28/2005)
451 RESPONSE in Opposition re 450 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records, 447 MOTION for Protective Order re: personnel records, 448 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere filed by all plaintiffs. (Reinert, Alexander) (Entered: 12/29/2005)
452 NOTICE of Appearance by Laura L Nagel on behalf of Howard Gussak (Nagel, Laura) (Entered: 12/29/2005)
453 Letter Motion for Protective Order by Christopher Witschel. (Saville, John) (Entered: 12/29/2005)
454 Letter Motion for Protective Order by Christopher Witschel. (Saville, John) (Entered: 12/29/2005)
Motions terminated, docketed incorrectly 450 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records filed by Jon Osteen, (THIS DOCUMENT FILED AS A DUPLICATE) (Piper, Francine) (Entered: 12/30/2005)
455 Letter MOTION for Joinder in application for protective order regarding personnel records by Raymond Mickens. (Rosenstock, E.) (Entered: 12/30/2005)
456 Letter to Judge Gold by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 01/09/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 1/10/2006. Gene Rudolph, Ct Rptr. Reinert and Meerepol, et al, for plaintiffs; Handler et al for defendants. Various discovery rulings on the record. NEXT CONF: MARCH 7, 2006 AT 2 PM. (Court Reporter Rudolph.) (Vasquez, Lea) (Entered: 01/13/2006)
457 NOTICE of Appearance by Dennis C. Barghaan on behalf of John Ashcroft (Barghaan, Dennis) (Entered: 01/18/2006)
458 Letter motion for an order authorizing the US Marshals Service to conduct security screening by United States. (Attachments: # 1 Proposed Order)(Handler, Stephen) (Entered: 01/20/2006)
ORDER re 458 Letter filed by United States: the proposed order is hereby entered by the court. Ordered by Judge Steven M. Gold on 1/20/2006. (O'Connor, Erin) (Entered: 01/20/2006)
459 Letter Submitting Stipulation Regarding Plaintiffs' Depositions by Jon Osteen. (Attachments: # 1 Text of Proposed Order)(Koenigsberg, David) (Entered: 01/25/2006)
ORDER re 459 Letter filed by Jon Osteen, the stipulation forwarded by the parties governing the conduct of plaintiffs' depositions is hereby entered as an order of the court. Ordered by Judge Steven M. Gold on 01/25/06. (Gold, Steven) (Entered: 01/25/2006)
460 Letter Regarding Reconsideration of Directives at January 10, 2006 Status Conference by Michael Zenk. (Taffet, Allan) (Entered: 01/25/2006)

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461 Letter MOTION for Extension of Time to Complete Discovery by Christopher Witschel. (Saville, John) (Entered: 01/27/2006)
ORDER granting 461 Motion for Extension of Time to Complete Discovery. Ordered by JudgeSteven M. Gold on 01/27/06. (Gold, Steven) (Entered: 01/27/2006)
462 Letter MOTION to Produce documents reviewed in preparation for deposition by Marcial Mundo. (Matthews, James) (Entered: 01/29/2006)
463 RESPONSE in Opposition re 462 Letter MOTION to Produce documents reviewed in preparation for deposition filed by all plaintiffs. (Reinert, Alexander) (Entered: 01/30/2006)
464 ORDER re 460 Letter filed by Michael Zenk, denying request for reconsideration. Ordered by Judge Steven M. Gold on 01/30/06. (Gold, Steven) (Entered: 01/30/2006)
465 Letter requesting that personnel records of defendants Thomas and Zenk be limited to attorneys' eyes only by Michael Zenk. (Taffet, Allan) (Entered: 02/03/2006)
ORDER re 465 Letter filed by Michael Zenk and Linda Thomas, GRANTING application that personnel records be produced on an "attorneys'−eyes−only" basis absent further order of the court. Ordered by Judge Steven M. Gold on 02/06/06. (Gold, Steven) (Entered: 02/06/2006)
466 Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 1/24/2006. Winger for plaintiffs, Handler and Mahafey for United States, Richman for Blesdoe, Matthews for Mundo. Ruling on record of plaintiff's deposition. (Vasquez, Lea) (Entered: 02/06/2006)
467 Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 1/31/2006. Recorded by deposition stenographer. Reinert and Winger for plaintiffs, Handler, Matthews and Koenigsberg for defendants. (1) Defendants' application to require counsel for plaintiffs to produce documents they showed to plaintiffs denied. Ruling requiring disclosure of documents reviewed by plaintiffs further explained on the record. (2) Defendants' application for discovery of plaintiff Iqbal's pre−sentence report may be presented to Judge Glasser by way of formal motion or re−presented to me for recommendation to Judge Glasser upon a showing of compelling need. The application that I recommend disclosure on the current record is denied. (Vasquez, Lea) (Entered: 02/06/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 1/26/2006. Meerepol for plaintiffs, Handler for United States. Ruling on record of deposition sustaining attorney−client privilege despite plaintiff's counsel having conferred with plaintiff in midst of psychological testing. My ruling is premised on the fact that the doctor administering the test, although aware of the interruption by plaintiff's counsel, did not object to the interruption or otherwise indicate that the test results might be affected and that the doctor would seek to learn the substance of the communications between counsel and client. (Vasquez, Lea) (Entered: 02/08/2006)
468 MOTION for Protective Order by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Winger, Michael) (Entered: 02/15/2006)
469 Letter in response to plaintiffs' request for order limiting disclosure of information revealed in depositions by United States. (Handler, Stephen) (Entered: 02/16/2006)
470 RESPONSE in Opposition re 468 MOTION for Protective Order by Letter dated Fberuary 16, 2006 filed by Raymond Mickens. (Attachments: # 1 Text of Proposed Order # 2 Exhibit)(Rosenstock, E.) (Entered: 02/16/2006)
ORDER re 468 MOTION for Protective Order filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Syed Amjad Ali Jaffri,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, akhil sachdeva,, Ashraf Ibrahim: Counsel shall abide by the terms of the protective order proposed by plaintiffs until the next conference, scheduled for March 7, 2006 at 2 pm, at which time the court will hear defendants' objections. Ordered by Judge Steven M. Gold on 02/16/06. (Gold, Steven) (Entered: 02/16/2006)

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471 Letter relating to motion to dismiss (Docket Nos. 205, 206, 207) by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Attachments: # 1 Order in Arar v. Ashcroft)(Winger, Michael) (Entered: 02/21/2006)
472 ORDER: An in−person status conference in the above−captioned case is scheduled for Tuesday, March 7, 2006 at 2:00 p.m. Counsel shall submit a proposed agenda for the conference no later than Monday, March 6th by 12:00 noon. SEE ATTACHED ORDER for additional details. Ordered by Judge Steven M. Gold on 03/02/06. (O'Connor, Erin) (Entered: 03/02/2006)
473 Letter regarding proposed agenda for 3/7/06 Status Conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 03/06/2006)
474 Letter by Steering Committee with Subjects for Status Confernece by Jon Osteen. (Koenigsberg, David) (Entered: 03/06/2006)
475 Letter regarding agenda for status conference scheduled for March 7, 2006, by United States. (Handler, Stephen) (Entered: 03/06/2006)
483 TRANSCRIPT of Civil Cause for Status Conference held on 3/7/06 before Judge Steven M. Gold. Fiore Transcription Service, Inc. (Drayton, Lorraine) (Entered: 04/06/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 3/7/2006. Meerepol, Reinert et al for plaintiffs, Handler et al, for United States, various counsel for defendants. Various discovery rulings on the record. NEXT CONFERENCE: MAY 11 AT 2 PM. (Tape #FTR: 2:09 − 3:09.) (Vasquez, Lea) (Entered: 03/08/2006)
476 Letter request to Magistrate Judge Gold by Ibrahim Turkmen. (Attachments: # 1 # 2)(Magoolaghan, Joan) (Entered: 03/14/2006)
477 Letter regarding reconsideration of the Court's Order, dated March 7, 2006, by United States. (Handler, Stephen) (Entered: 03/17/2006)
478 Letter Opposing Defendant United States' Request for Reconsideration of March 7, 2006, Order by Ibrahim Turkmen, Javaid Iqbal, Ehab Elmaghraby, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Reinert, Alexander) (Entered: 03/24/2006)
479 Letter in response to plaintiffs' opposition for request to reconsider the order, dated March 7, 2006, by United States. (Handler, Stephen) (Entered: 03/27/2006)
480 Letter regarding Stipulation and proposed Order concerning certain plaintiffs' depositions and medical/psychological examinations by United States. (Attachments: # 1 Stipulation and proposed Order)(Handler, Stephen) (Entered: 03/29/2006)
481 TRANSCRIPT of Status Conference for date of March 7, 2006 before Judge Steven M. Gold. Transcript produced by transcription service. (Williams−Jackson, Sandy) (Entered: 03/30/2006)
484 TRANSCRIPT of Civil Cause for Status Conference held on 3/7/06 before Judge Steven M. Gold. Court Transcriber: Fiore Transcription Service, Inc.. (Drayton, Lorraine) (Entered: 04/06/2006)
ORDER re 480 Letter filed by United States, the proposed stipulation submitted by counsel is hereby entered as an order of the court. Ordered by Judge Steven M. Gold on 03/30/06. (Gold, Steven) (Entered: 03/30/2006)
482 Letter to Magistrate Judge Gold opposing reconsideration of March 7, 2006 Order by Ibrahim Turkmen. (Magoolaghan, Joan) (Entered: 03/30/2006)
486 TRANSCRIPT of Proceedings held on 1/10/06 @ 3:00 p.m. before Judge Steven M. Gold. Court Reporter: Gene Rudolph. (Drayton, Lorraine) (Entered: 04/17/2006)

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485 Letter in Response to Plaintiffs' March 30, 2006, letter by United States. (Handler, Stephen) (Entered: 04/13/2006)
487 Letter confirming conference call for April 21, 2006, at 4:30 pm by United States. (Handler, Stephen) (Entered: 04/18/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 4/21/2006. Reinert and Meerepol for pls, Handler et al for United States. Counsel will submit simultaneous letters amplifying their positions on the matters discussed today within two weeks, and replies one week thereafter. (Tape #FTR 4:35−4:52.) (Vasquez, Lea) (Entered: 04/24/2006)
TRANSCRIPT of Civil Cause for Conference held on 4/21/06 before Judge Steven M. Gold. Court Reporter: Rosalie Lombardi. Docketed as No. 415 in 04 CV 1809. (Black, Amanda) (Entered: 05/08/2006)
488 Letter to Magistrate Judge Gold re: Government interception of attorney−client communications by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 05/05/2006)
489 Letter in response to Court's proposed witness statement by United States. (Handler, Stephen) (Entered: 05/05/2006)
SCHEDULING ORDER: The in−person status conference previously scheduled for May 11, 2006 will be held instead at 10:00 a.m. on May 26, 2006. Counsel shall submit a joint proposed agenda no later than 12 noon on May 22, 2006. So Ordered. Ordered by Judge Steven M. Gold on 5/8/06. (O'Connor, Erin) (Entered: 05/08/2006)
490 Letter replying to plaintiffs' response dated May 5, 2006 by United States. (Handler, Stephen) (Entered: 05/12/2006)
491 Letter to the Honorable Steven M. Gold in Response to Defendant United States' Letter Dated April 5, 2006, by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Reinert, Alexander) (Entered: 05/12/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 5/18/2006. Meerepol for pl, Handler for US def. The application of plaintiff Jaffri to adjourn his deposition and IME, previously scheduled for June 12−14 in Toronto, or in the alternative to have the deposition held by telephone, is DENIED for reasons stated on the record. (Tape #FTR 3:04 − 3:15.) (Vasquez, Lea) (Entered: 05/19/2006)
492 Letter to Judge Gold re: May 26, 2006 status conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 05/22/2006)
493 Letter Joint Status Conference Letter by United States. (Handler, Stephen) (Entered: 05/22/2006)
495 Letter dated 3/13/2006 from William Beck, advising that the undersigned discharged Robert Goldman as a counsel and will be representing himself in the above referenced civil lawsuits. W/Letter dated 5/18/2006 attached. *Fwd. to Chambers. *Docket sheet updated. (Latka−Mucha, Wieslawa) (Entered: 05/24/2006)
494 MOTION for Discovery by Stuart Pray. (Caro, Richard) (Entered: 05/23/2006)
496 Letter responding to plaintiffs' letter, dated May 22, 2006, explicating positions on agenda items 2, 3, and 4, for the Status Conference scheduled for May 26, 2006 by United States. (Handler, Stephen) (Entered: 05/24/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/26/2006. Court reporter Lisa Schmid. Meerepol for Turkmen plaintiffs, Reinert for Elmaghraby, Handler et al for United States, various counsel for individual defendants. Rulings on numerous discovery applications on the record, including a deadline of June 5 for production of personnel and disciplinary records of defendants, a requirement that plaintiff Turkmen appear in the United States at some time over the

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next few months agreed to by counsel for an in−person deposition, a presumption that plaintiffs will have 1 1/2 days and defendants 1/2 day for each defendant's deposition, a direction that counsel for the Turkmen plaintiffs promptly issue a subpoena for the social security records sought by counsel for defendant Pray, and a direction that counsel for plaintiffs provide the court with a list of all pro se defendants and their last known addresses. The government's motion for reconsideration of this court's order of March 7, 2006, with respect to surveillance of attorney−client communications is submitted and taken under advisement. Plaintiffs' motion for a protective order will be the subject of further efforts at resolution by counsel and further briefing to the court if required. NEXT CONFERENCE: AUGUST 3 AT 10 AM. (Vasquez, Lea) (Entered: 05/26/2006)
497 ORDER re 477 Letter filed by United States, denying the government's motion for reconsideration of the discovery ruling made during the conference held on March 7, 2006. Ordered by Judge Steven M. Gold on 05/30/06. (Gold, Steven) (Entered: 05/30/2006)
498 Letter Application to Consolidate Discovery for the Limited Purpose of Defendants Depositions by Steven Barrere. (Aranyos, Stephanie) (Entered: 06/02/2006)
ORDER: The Court has received a letter from counsel for defendant Stuart Pray dated June 2, 2006. The letter should have been filed electronically but apparently was not. The letter seeks an extenstion of time to object to disclosure of Pray's personnel file "to 10 days after its receipt by" Pray's counsel. The Court is unwilling to adjourn the time for objections to an unspecified date. Counsel for the United States and for Pray shall confer and agree upon a prompt date for production and asserting objections, if any, and advise the court of their proposed schedule by June 9, 2006. Ordered by Judge Steven M. Gold on 06/05/06. (Gold, Steven) (Entered: 06/05/2006)
499 ORDER notifying pro se defendants of the status of the case and informing them that a failure to attend conferences is a waiver of their right to be heard and object. See Attached Order. Ordered by Judge Steven M. Gold on 6/6/06. (O'Connor, Erin) (Entered: 06/06/2006)
500 Letter Motion requesting an extension of time to serve and file objections to an Order entered by Magistrate Judge Gold on May 30, 2006, by United States. (Handler, Stephen) (Entered: 06/06/2006)
501 Letter Opposing United States' Request for Extension of Time to File Objections by Ibrahim Turkmen, Javaid Iqbal, Ehab Elmaghraby, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Reinert, Alexander) (Entered: 06/06/2006)
504 Letter dated 5/2/06 from Richard P. Caro to Clerk, advising the court to correct counsel's address on the docket sheet. (Piper, Francine) (Entered: 06/12/2006)
ORDER: The request of the United States for an extension of time, until June 23, 2006, to serve and file objections to Magistrate Judge Gold's Order of May 30, 2006 is granted. Ordered by Judge John Gleeson on June 8, 2006. (Gleeson, John) (Entered: 06/08/2006)
502 Letter to Magistrate Judge Gold from Clay Mahaffey regarding production of the personnel file for defendant Pray by United States. (Handler, Stephen) (Entered: 06/09/2006)
503 Letter to Judge Gold regarding Defendant Pray's Motion for an Order to Compel Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 06/12/2006)
505 First MOTION to Compel Defendant McCabe to Answer Interrogatories and Produce Documents by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 06/12/2006)
506 CERTIFICATE OF SERVICE by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri re 505 First MOTION to Compel Defendant McCabe to Answer

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Interrogatories and Produce Documents (Meeropol, Rachel) (Entered: 06/12/2006)
507 ORDER granting in part and denying in part the defendants' motion to dismiss. Ordered by Judge John Gleeson on June 14, 2006. (Gleeson, John) (Entered: 06/14/2006)
508 REPLY to Response to Motion re 494 MOTION for Discovery filed by Stuart Pray. (Attachments: # 1 Appendix # 2 Appendix # 3 # 4 Appendix # 5 Appendix)(Caro, Richard) (Entered: 06/14/2006)
509 NOTICE of Voluntary Dismissal by Syed Amjad Ali Jaffri (Meeropol, Rachel) (Entered: 06/15/2006)
510 First MOTION to Withdraw as Attorney by Laura Nagel by Howard Gussak. (Murphy, Kenneth) (Entered: 06/22/2006)
511 Letter regarding objections to May 30, 2006, Order by United States. (Attachments: # 1 Memorandum in support of objections to May 30, 2006, Order# 2 Exhibit Tab 1, February 28, 2006, letter# 3 Exhibit Tab 2, March 7, 2006, transcript# 4 Exhibit Tab 3, proposed modifications to witness statement# 5 Exhibit Tab 4, Negroponte Declaration# 6 Exhibit Tab 5, Quirk Declaration)(Handler, Stephen) (Entered: 06/23/2006)
ORDER: The request of Laura Nagel for leave to withdraw as counsel for defendant Howard Gussak is granted. Ordered by Judge John Gleeson on June 26, 2006. (Gleeson, John) (Entered: 06/26/2006)
512 AFFIDAVIT re 509 Notice of Voluntary Dismissal Declaration in Opposition to Voluntary Dismissal by Elizabeth Torres. (Leonard, Christina) (Entered: 06/29/2006)
513 Letter to the Hon. John Gleeson Regarding United States' Objections to Magistrate's May 30, 2006, Order by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Reinert, Alexander) (Entered: 06/29/2006)
ORDER: The request of the United States to file an oversize brief in support of its objections to the Order of the Magistrate Judge entered May 30, 2006 is granted. The plaintiffs' request to file a brief of like size in opposition is granted. Ordered by Judge John Gleeson on July 5, 2006. (Gleeson, John) (Entered: 07/05/2006)
514 First MOTION for Leave to File Memorandum of Law In Resposne to Plaintiff Jaffi's Rule 41(a)(2) Motion by Stuart Pray. (Attachments: # 1 Supplement Memorandum in Response to Plaintiff Jaffi's Rule 41(a)(2) motion# 2 Affidavit Declaration of Service)(Caro, Richard) (Entered: 07/05/2006)
515 MOTION to Dismiss by Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 07/07/2006)
516 RESPONSE in Opposition re 515 MOTION to Dismiss by Plaintiff Jaffri filed by Jon Osteen. (Meeropol, Rachel) (Entered: 07/07/2006)
517 RESPONSE in Opposition re 515 MOTION to Dismiss by Plaintiff Jaffri filed by Raymond Mickens. (Meeropol, Rachel) (Entered: 07/07/2006)
518 REPLY to Response to Motion re 515 MOTION to Dismiss filed by Syed Amjad Ali Jaffri. (Meeropol, Rachel) (Entered: 07/07/2006)
519 Letter regarding an Unopposed Motion for a Consent Order for paroling in Ibrahim Turkmen for his deposition by United States. (Attachments: # 1 Supplement Unopposed Motion for a Consent Order# 2 Supplement proposed Consent Order)(Handler, Stephen) (Entered: 07/10/2006)
ORDER: The motion of plaintiff Jaffri for voluntary dismissal is granted. This dismissal is without prejudice to Jaffri's right, in the event a class is certified in this matter, to assert membership in the class. Ordered by Judge John Gleeson on July 10, 2006. (Gleeson, John) (Entered: 07/10/2006)
520 Appellee's BRIEF by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Attachments: # 1 Exhibit

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Hearing Transcript March 7, 2006# 2 Exhibit Hearing Transcript April 21, 2006)(Winger, Michael) (Entered: 07/10/2006)
521 Letter requesting an extension of time to July 28, 2006, to serve and file a reply brief by United States. (Handler, Stephen) (Entered: 07/13/2006)
522 Letter to the Hon. John Gleeson requesting an extension of two business days, until July 17, 2006, within which they may file their opposition to plaintiffs' Motion for Certification by Dennis Hasty, Michael Zenk, John Ashcroft, Robert Mueller. (Lawrence, R.) (Entered: 07/13/2006)
ORDER: The request of defendant Mueller, on behalf of himself and defendants Ashcroft, Hasty, and Zenk, for an extension of time, until July 17, 2006, to file their opposition to the plaintiffs' motion for certification pursuant to Rule 54(b) is granted. Ordered by Judge John Gleeson on July 14, 2006. (Gleeson, John) (Entered: 07/14/2006)
ORDER: The request of the United States for an extension of time, until July 28, 2006, to file reply papers in support of its objections to the Magistrate Judge's Order of May 30, 2006 is granted. Ordered by Judge John Gleeson on July 14, 2006. (Gleeson, John) (Entered: 07/14/2006)
523 MOTION for Certificate of Appealability under Fed.R.Civ.P 54(b) by all plaintiffs. (Meeropol, Rachel) (Entered: 07/19/2006)
524 RESPONSE in Opposition re 523 MOTION for Certificate of Appealability under Fed.R.Civ.P 54(b) filed by United States. (Meeropol, Rachel) (Entered: 07/19/2006)
525 RESPONSE in Opposition re 523 MOTION for Certificate of Appealability under Fed.R.Civ.P 54(b) filed by James W. Ziglar. (Meeropol, Rachel) (Entered: 07/19/2006)
526 RESPONSE in Opposition re 523 MOTION for Certificate of Appealability under Fed.R.Civ.P 54(b) filed by Robert Mueller. (Meeropol, Rachel) (Entered: 07/19/2006)
527 REPLY to Response to Motion re 523 MOTION for Certificate of Appealability under Fed.R.Civ.P 54(b) filed by all plaintiffs. (Meeropol, Rachel) (Entered: 07/19/2006)
528 Letter to Judge Gleeson by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Attachments: # 1)(Meeropol, Rachel) (Entered: 07/21/2006)
529 NOTICE of Appearance by James G. Ryan on behalf of William Beck (Ryan, James) (Entered: 07/23/2006)
530 Letter Notifying Appearance of Counsel on behalf Mr. Beck by William Beck. (Attachments: # 1 # 2)(Aranyos, Stephanie) (Entered: 07/23/2006)
ORDER re 519 Letter, filed by United States, the proposed order submitted on consent is hereby entered by the court. Ordered by Judge Steven M. Gold on 07/28/06. (Gold, Steven) (Entered: 07/28/2006)
531 Letter Regarding filing of Reply in Support of Objections to May 30, 2006, Order by United States. (Handler, Stephen) (Entered: 07/28/2006)
532 Letter Regarding Reply in Support of Objections to May 30, 2006, Order by United States. (Attachments: # 1 Exhibit Reply in Support of Objections to May 30, 2006, Order# 2 Exhibit Goodman Affirmation# 3 Exhibit Meeropol Affirmation)(Handler, Stephen) (Entered: 07/28/2006)
533 NOTICE of Appearance by James J. Keefe on behalf of Salvatore LoPresti (Keefe, James) (Entered: 07/31/2006)
534 Letter to Judge Gold re: Status Conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 07/31/2006)
535 Letter Re August 3, 2006 Conference by Stuart Pray. (Caro, Richard) (Entered: 07/31/2006)

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ORDER re 535 Letter filed by Stuart Pray,, 534 Letter filed by Shakir Baloch,, Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, Ashraf Ibrahim: The conference set for August 2 is adjourned without date. The court will consider Pray's motion to compel discovery on the papers. Counsel are directed to be available by telephone at the time set for the conference in the event any of the pro se parties appear. In addition, counsel shall submit a status report by September 15 suggesting a date for further conference and proposing an agenda for same. Ordered by Judge Steven M. Gold on 08/01/06. (Gold, Steven) (Entered: 08/01/2006)
ORDER : The immediately preceding order should be amended to indicate that the conference previously set for AUGUST 3, 2006 is being adjourned. Ordered by Judge Steven M. Gold on 08/01/06. (Gold, Steven) (Entered: 08/01/2006)
536 ORDER granting in part and denying in part defendant Pray's motion to compel discovery of plaintiffs Ibrahim and Ebrahim. Ordered by Judge Steven M. Gold on 08/02/06. (Gold, Steven) (Entered: 08/02/2006)
ORDER granting in part and denying in part 494 Motion for Discovery.(Ordered by JudgeSteven M. Gold on 8/2/06) (Piper, Francine) (Entered: 08/03/2006)
537 SCHEDULING ORDER: A telephone conference will be held on Thursday, August 10, 2006 promptly at 2:00 p.m. before the Honorable Steven M. Gold, United States Magistrate Judge, at (718) 613 − 2560. Counsel for plaintiff and pro se defendant Michael McCabe ONLY must participate. Counsel for plaintiff is directed to arrange the call. See Attached Order. Ordered by Judge Steven M. Gold on 8/4/06. (O'Connor, Erin) (Entered: 08/04/2006)
ORDER re 498 Letter filed by Steven Barrere, denying application of defendant Barrere that parties in 04−cv−3950 be directed to depose him at the same time that his deposition is held in 02−cv−2307 and 04−cv−1809. Because all other counsel who have responded to the application have objected to it, and because the issues in each of these cases are complex and involve many parties and attorneys, I conclude that a consolidated deposition will cost more in administrative difficulty and confusion than it will save in convenience to counsel and the parties. Ordered by Judge Steven M. Gold on 08/04/06. (Gold, Steven) (Entered: 08/04/2006)
538 NOTICE OF APPEAL by Dennis Hasty. Filing fee $ 455, receipt number 1944871. (Murphy, Justin) (Entered: 08/10/2006)
539 ORDER granting 505 Motion to Compel and directing that defendant McCabe respond to plaintiffs' discovery demands by August 31, 2006, and appear for a conference at 4:00 p.m. on Friday, September 15, 2006, on pain of recommended default. Ordered by JudgeSteven M. Gold on 08/11/06. (Gold, Steven) (Entered: 08/11/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 8/10/2006. Defendant McCabe could not be reached. (Vasquez, Lea) (Entered: 08/11/2006)
540 NOTICE OF APPEAL as to 507 Order by James W. Ziglar. Filing fee $ 455, receipt number 1946391. (Bakhos, Bassel) (Entered: 08/11/2006)
Electronic Index to Record on Appeal sent to US Court of Appeals re 369 Reply to Response to Motion, 83 MOTION for Order to Show Cause permittng the movants to intervene for the purpose of seeking access to the documents produced by the defendants pursuant to Magistrate Judge Pollak's order of 8−2−04, 321 MOTION for Limited Admission to admit Matthew F. Scarlato Pro Hac Vice, 99 Letter, 424 Answer to Amended Complaint, 219 MOTION to Withdraw as Attorney on behalf of Nancy Chang, Esq. and Barbara Olshansky, Esq., 242 Request for Production of Documents, 4 Order, 469 Letter, 363 Letter, 164 Letter, 117 Letter, 478 Letter,, 124 Letter, 195 Answer to Amended Complaint, 257 Notice (Other), 527 Reply to Response to Motion, 144 Order,, 389 Letter, 494 MOTION for Discovery, 347 First MOTION for Default Judgment as to Defendant Salvatore Lopresti, 251 Notice (Other), 356 Notice of Appearance, 190 Waiver of Service Executed,, 185 Order, 370 Certificate of Service, 198 Disclosure of Interested Parties, 26 Order on Motion for Leave to Appear, 517 Response in Opposition to Motion, 454 Letter, 276 Request for Production of Documents, 504 Letter, 334 Letter, 174 Telephone Conference,, 106 First MOTION for Extension of Time to File Objections to Magistrate Judge's Order,

229 MOTION to Appoint Counsel (Motion for Admission of Matthew Strugar, Esq., as Pro Hac Vice Counsel for Plaintiffs), 277 Interrogatories Propounded, 523 MOTION for Certificate of Appealability under Fed.R.Civ.P 54(b), 149 Order, 344 First MOTION for Default Judgment as to Defendant Philip Barnes, 267 Letter, 88 Letter, 406 Transcript, 372 Notice of Appearance, 349 First MOTION for Default Judgment as to Defendant Daniel Ortiz, 489 Letter, 395 Notice of Appearance, 492 Letter, 311 Letter, 217 Letter, 461 Letter MOTION for Extension of Time to Complete Discovery, 215 Notice of Appearance, 213 Letter, 133 Letter, 323 Notice (Other), 272 Affidavit, 12 Order,, 531 Letter, 179 Answer to Amended Complaint, 181 Order, 96 MOTION to Amend/Correct 28 Amended Complaint,, 462 Letter MOTION to Produce documents reviewed in preparation for deposition, 280 Notice of Voluntary Dismissal, 295 Letter, 333 Letter, 290 Order on Motion to Withdraw as Attorney, 487 Letter, 338 Reply to Response to Motion, 199 Letter, 538 Notice of Appeal, 436 Filing Fee Received, 35 Order on Motion for Leave to Appear, 147 Waiver of Service Executed,, 308 Answer to Interrogatories, 129 Letter, 457 Notice of Appearance, 162 Answer to Amended Complaint, 412 Letter, 525 Response in Opposition to Motion, 422 Status Report, 297 Letter, 274 Answer to Amended Complaint, 40 Order,, 312 Status Report,,, 442 Letter, 401 Letter, 47 Order, 460 Letter, 128 Letter, 268 Order, 314 Status Report, 420 Letter, 354 Letter, 537 Scheduling Order,, 368 Certificate of Service, 325 Answer to Amended Complaint, 513 Letter,, 261 Notice (Other), 529 Notice of Appearance, 258 Notice (Other), 429 Letter, 248 Notice of Appearance, 202 MOTION to Substitute Party United States, 49 Response in Support of Motion,, 465 Letter, 221 NOTICE of Change of Address/Firm/Email, 528 Letter, 456 Letter, 303 Answer to Interrogatories, 273 Affidavit, 512 Affidavit, 491 Letter,, 404 Transcript, 17 Order, 514 First MOTION for Leave to File Memorandum of Law In Resposne to Plaintiff Jaffi's Rule 41(a)(2) Motion, 184 Disclosure of Interested Parties, 440 Order,, 398 NOTICE of Change of Address/Firm/Email, 516 Response in Opposition to Motion, 479 Letter, 533 Notice of Appearance, 387 Letter, 380 Cross MOTION to Vacate 345 First MOTION for Default Judgment as to Defendant James Cuffee, 441 Letter, 224 Answer to Amended Complaint, Crossclaim, 155 Stipulation, 365 Affidavit in Opposition to Motion, 327 Notice of Appearance, 341 MOTION for Leave to Appear Pro Hac Vice as to Bassel Bakhos, 223 Answer to Amended Complaint, Crossclaim, 113 Second MOTION for Extension of Time to File objections to Magistrate Judge's Order; MEMORANDUM OF LAW, 230 Answer to Amended Complaint, 231 Notice (Other), 243 Notice (Other), 426 Letter, 262 Notice (Other), 27 Order,, 240 Order, 539 Order on Motion to Compel,, 306 Answer to Interrogatories, 86 Letter,, 101 Response in Opposition to Motion, 320 Order on Motion for Limited Admission, 191 Letter,, 108 Letter, 115 Reply to Response to Motion,,, 419 Status Report, 361 Affidavit in Opposition to Motion, 437 Order on Motion for Leave to Appear, 288 Letter, 450 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records, 247 Notice (Other), 408 Letter, 160 Letter, 326 Letter, 502 Letter, 58 Order,, 396 Letter, 374 Letter, 360 Certificate of Service, 210 Notice of Voluntary Dismissal, 187 Order,, 471 Letter,, 373 Notice of Appearance, 355 Affidavit in Opposition, 177 Letter, 496 Letter, 382 Notice of MOTION for Extension of Time to File Answer, 194 Letter,, 477 Letter, 112 Second MOTION for Extension of Time to File Objections to Magistrate Judge's Order, 522 Letter,, 336 MOTION to Dismiss Third Amended Complaint, 518 Reply to Response to Motion, 397 Letter, 482 Letter, 453 Letter, 142 Letter MOTION to Amend/Correct Order, Setting Page Limitations, 168 Waiver of Service Executed,, 444 Letter, 485 Letter, 165 Order, 110 Order, 201 Letter, 161 Letter,, 119 Certificate of Service,, 507 Order, 377 First MOTION for Reconsideration re Status Conference,,,,,,, 427 Letter, 316 Status Report, 114 Order on Motion to Intervene,, 293 Order,, 235 Order on Motion for Leave to Appear, 102 Reply to Response to Motion, 535 Letter, 205 MOTION to Dismiss the Third Amended Complaint, 103 Notice of MOTION to Intervene, 413 Status Report, 526 Response in Opposition to Motion, 236 Order, 351 Letter, 38 Order, 157 Scheduling Order, 137 Letter, 416 Status Report, 472 Order,, 500 Letter, 163 Letter, 304 Answer to Interrogatories, 104 MOTION to Intervene , Memorandum of Law in Support of Intervention, 141 MOTION for Reconsideration re Order, setting page limitation, 391 Letter, 69 Order, 131 Waiver of Service Executed,,, 180 Disclosure of Interested Parties, 495 Letter,, 93 Order, 140 Letter, 60 Protective Order, 270 Request for Production of Documents, 263 Answer to Interrogatories, 100 Letter, 430 Letter, 399 Letter, 310 Letter, 116 Letter MOTION to Dismiss request for premotion conference regarding Third Amended Complaint, 189 Answer to Amended Complaint, Crossclaim, 120 Letter, 127 Summons Returned Executed, 278 Deposition, 367 Reply

to Response to Motion, 166 Notice of Appearance, 433 Letter, 153 Letter,, 446 Letter, 438 Notice (Other), 67 Order, 335 Letter, 298 Letter, 186 Summons Returned Executed as to USA, 340 Response in Opposition to Motion, 509 Notice of Voluntary Dismissal, 159 Notice of Appearance, 475 Letter, 378 Answer to Amended Complaint, 371 Letter, 300 Answer to Interrogatories, 410 Scheduling Order, 532 Letter,, 84 Telephone Conference, 188 Notice (Other), 123 Letter, 499 Order,, 346 First MOTION for Default Judgment as to Defendant Kevin Lopez, 1 Complaint,, 252 Notice (Other), 521 Letter, 220 Letter, 497 Order, 452 Notice of Appearance, 488 Letter,, 510 First MOTION to Withdraw as Attorney by Laura Nagel, 307 Answer to Interrogatories, 428 Letter, 125 Letter, 392 Letter, 384 Certificate of Service, 146 Letter, 358 Response in Opposition to Motion, 130 Letter, 332 Letter, 222 Letter, 256 Notice (Other), 218 Letter, 87 Letter, 425 Letter, 20 Order,, 255 Notice (Other), 421 Letter, 24 Order on Motion for Leave to Appear, 182 Answer to Amended Complaint, Crossclaim, 394 Answer to Complaint, 536 Order, 281 Interrogatories Propounded, 474 Letter, 348 First MOTION for Default Judgment as to Defendant Michael McCabe, 232 Answer to Amended Complaint, 134 Order, 463 Response in Opposition to Motion, 283 Interrogatories Propounded, 158 Waiver of Service Executed,,, 122 Waiver of Service Executed,,, 383 Affidavit in Opposition to Motion, 11 Order,, 265 Letter, 322 Order on Motion for Limited Admission, 376 Certificate of Service, 169 Stipulation and Order, 105 Letter, 431 Disclosure of Interested Parties, 362 Certificate of Service, 32 Supplemental MOTION to Dismiss The Second Amended Complaint, 366 Affidavit in Support of Motion, 92 Letter,, 515 MOTION to Dismiss, 118 Response to Motion, 470 Response in Opposition to Motion, 207 Reply to Response to Motion, 150 Answer to Amended Complaint, 291 Interrogatories Propounded, 493 Letter, 225 Answer to Amended Complaint, Crossclaim, 403 Status Report, 282 Notice to Take Deposition, 266 Letter, 135 Letter MOTION for Leave to File Memoranda of Law in Excess of the Page Limit, 468 MOTION for Protective Order, 178 Waiver of Service Executed,, 309 Answer to Amended Complaint, 476 Letter, 506 Certificate of Service,, 498 Letter, 418 Letter, 318 Letter, 145 Letter, 170 Notice of MOTION for Reconsideration of December 3, 2004 Order, 345 First MOTION for Default Judgment as to Defendant James Cuffee, 175 Disclosure of Interested Parties, 285 Scheduling Order, 511 Letter,, 275 Answer to Amended Complaint, 269 Interrogatories Propounded, 409 Notice of Appearance, 313 Status Report, 302 Order,,, 148 Letter, 200 MOTION for Leave to Appear Pro Hac Vice for Debra L. Roth, 91 Order,, 94 Order,, 259 Notice (Other), 143 Order, 203 Response in Opposition to Motion, 458 Letter, 385 Certificate of Service, 241 Interrogatories Propounded, 71 Order, 353 Letter, 448 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere, 154 Letter, 22 Order,, 443 Letter, 386 Answer to Amended Complaint, 375 Answer to Amended Complaint, Crossclaim, 167 Letter, 319 MOTION for Limited Admission to admit Pro Hac Vice Kyler E. Smart, 228 Response in Opposition to Motion, 171 First MOTION for Reconsideration re 149 Order, 206 Response in Opposition to Motion, 473 Letter, 435 MOTION for Leave to Appear Pro Hac Vice (Justin P. Murphy), 402 Letter, 451 Response in Opposition to Motion,, 260 Notice (Other), 530 Letter, 37 Order,, 36 Order on Motion for Leave to Appear, 10 Order,, 226 Answer to Amended Complaint, Crossclaim, 250 Notice (Other), 505 First MOTION to Compel Defendant McCabe to Answer Interrogatories and Produce Documents, 449 Letter, 238 Response in Opposition to Motion, 415 Status Report, 109 Amended Complaint, 324 Letter, 342 Order on Motion for Leave to Appear, 211 NOTICE of Change of Address/Firm/Email, 111 Notice of Appearance, 464 Order, 315 Status Report, 317 Letter, 237 Reply to Response to Motion, 524 Response in Opposition to Motion, 405 Transcript, 173 Reply to Response to Motion, 227 Answer to Amended Complaint, Crossclaim, 414 Status Report, 183 Answer to Amended Complaint, 520 Appellee's Brief,, 287 Letter, 352 Letter, 490 Letter, 337 Response in Opposition to Motion, 439 Notice (Other), 85 Letter, 330 Interrogatories Propounded, 292 Interrogatories Propounded, 136 Summons Returned Executed as to USA, 192 Answer to Amended Complaint, 204 Reply to Response to Motion, 234 Order on Motion to Appoint Counsel,, 331 Request for Production of Documents, 172 MOTION for Reconsideration by Defs Hasty and Zenk − Plaintiffs' Opposition Brief, 388 Letter, 411 Letter, 350 First MOTION for Default Judgment as to Defendant Stuart Prey, 455 Letter MOTION for Joinder in application for protective order regarding personnel records, 393 Letter, 239 Letter, 193 Letter,, 254 Notice (Other), 328 Notice (Other), 97 MOTION to Amend/Correct 96 MOTION to Amend/Correct 28 Amended Complaint, Memo and Proposed Order,, 13 Order, 246 Notice of Appearance, 305

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Answer to Interrogatories, 121 Notice of Appearance, 249 Notice (Other), 271 Notice (Other), Notice (Other), 501 Letter,, 503 Letter,, 508 Reply to Response to Motion, 423 Letter, 66 Order, 216 Letter, 15 Order, 459 Letter, 364 Affidavit in Support of Motion, 407 REPORT AND RECOMMENDATIONS re 380 Cross MOTION to Vacate 345 First MOTION for Default Judgment as to Defendant James Cuffee filed by James Cuffee,, 346 First MOTION for Default Judgment as to Defendant Kevin Lopez filed by Shakir Bal, 95 Letter, 400 Letter,, 208 First MOTION to Dismiss Third Amended Complaint, 253 Notice (Other), 299 Interrogatories Propounded, 534 Letter, 432 MOTION for Discovery (unopposed motion for consent order), 390 Letter, 357 Affidavit in Opposition to Motion, 447 MOTION for Protective Order re: personnel records, 78 Order, 540 Notice of Appeal, 329 Deposition, 381 Cross MOTION for Extension of Time to File Answer, 138 Reply to Response to Motion, 519 Letter,, 359 First MOTION for Extension of Time to File Answer re 109 Amended Complaint Cross Motion, 48 Order, 59 Order, 156 Notice of Appearance, 284 Request for Production of Documents, 107 Order,, 343 Notice (Other), 126 Order,, 434 Letter, 176 Stipulation and Order, 279 Notice (Other), 480 Letter, 74 Order, 379 Letter, 294 Order, 264 Notice (Other), Notice (Other), 209 Notice of Appearance, 417 Status Report For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 08/11/2006)
541 NOTICE OF APPEAL as to 507 Order by James Sherman. Filing fee $ 455, receipt number 1946975. (Sullivan, Thomas) (Entered: 08/11/2006)
542 NOTICE OF APPEAL as to 507 Order by John Ashcroft, Robert Mueller. Filing fee $ 455. (Barghaan, Dennis) (Entered: 08/14/2006)
543 Letter seeking a protective order regarding the deposing of defendants and third party witnesses by United States. (Handler, Stephen) (Entered: 08/17/2006)
544 ORDER granting the plaintiffs' motion for certification pursuant to Fed. R. Civ. P. 54(b). Ordered by Judge John Gleeson on August 18, 2006. (Gleeson, John) (Entered: 08/18/2006)
545 Letter to Judge Gleeson by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Attachments: # 1)(Meeropol, Rachel) (Entered: 08/18/2006)
546 Mail receipt. (Meeropol, Rachel) (Entered: 08/21/2006)
547 Letter to Jugde Gold re: Motion for Class Certification by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 08/23/2006)
548 Letter (1) In Opposition to Defendant United States' August 17, 2006, Request for Protective Order and (2) Requesting that United States Be Required to Produce Certain Witnesses in New York City for Deposition by Ibrahim Turkmen, Javaid Iqbal, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri. (Reinert, Alexander) (Entered: 08/24/2006)
549 NOTICE of Appearance by Kimberly Helene Zelnick on behalf of all plaintiffs (Zelnick, Kimberly) (Entered: 08/29/2006)
550 JUDGMENT that pltfs. motion for certification is granted; and that final judgment is hereby entered on claims 1,2,24,25, and to the extent it was dismissed by the Memorandum and Order of June 14,2006 on claim 5. Ordered by Judge Clerk of Court on 8/22/06. (Greene, Donna) (Entered: 08/30/2006)
551 Letter responding to plaintiffs' letter, dated August 24, 2006, regarding United States' request for a protective order and request that plaintiffs pay the costs incident to their discovery by United States. (Handler, Stephen) (Entered: 09/01/2006)
552 MOTION for Protective Order by Jon Osteen. (Koenigsberg, David) (Entered: 09/01/2006)
553 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne by United States. (Attachments: # 1 Affidavit Declaration of SA James P. Wynne)(Handler,

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Stephen) (Entered: 09/05/2006)
554 RESPONSE to Motion re 553 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne, 552 MOTION for Protective Order filed by all plaintiffs. (Reinert, Alexander) (Entered: 09/06/2006)
555 Letter Regarding the Court's August 11, 2006 Order by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 09/07/2006)
556 NOTICE OF APPEAL as to 550 Clerk's Judgment,, 544 Order, 507 Order by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi. Filing fee $ 455, receipt number 1988819. (Winger, Michael) (Entered: 09/08/2006)
First Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals re 556 Notice of Appeal,, 552 MOTION for Protective Order, 544 Order, 541 Notice of Appeal, 549 Notice of Appearance, 543 Letter, 553 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne, 545 Letter, 550 Clerk's Judgment,, 547 Letter, 546 Mail receipt, 555 Letter, 548 Letter,, 554 Response to Motion, 551 Letter, 542 Notice of Appeal For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 09/08/2006)
557 Letter responding to plaintiffs' letter, dated September 6, 2006, addressing the costs of transporting witnesses to New York and the United States' Motion to quash the subpoena for taking the deposition of FBI agent James Wynne by United States. (Handler, Stephen) (Entered: 09/11/2006)
558 NOTICE of Appearance by Melissa Kelly Driscoll on behalf of Jon Osteen (Driscoll, Melissa) (Entered: 09/14/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 9/15/2006. Meerepol for Turkmen plaintiffs, Reinert for Elmaghraby plaintiffs, Handler and Mahaffey for United States, Koenigsberg for Osteen, McCabe, defendant pro se, counsel for other defendants. (1) Defendant McCabe alerted to his responsiblity to respond to plaintiffs' discovery demands. Counsel for United States to investigate and report on whether McCabe will be provided counsel. (2) Plaintiffs' application to depose FBI agent Wynne during the current phase of discovery is denied for the reasons stated on the record. (3) Out−of−district witnesses will be deposed in New York City, with plaintiffs and the United States each reimbursing half of the travel expenses the witnesses incur. (4) Plaintiffs' application to defer briefing on class certification until after the Second Circuit rules on the pending appeal is unopposed and granted. (5) NEXT CONFERENCE: NOVEMBER 16, 2006 AT 3 PM. Counsel shall submit letters identifying any matters to be addressed at the next conference by November 9. (Tape #FTR 4:02−4:28.) (Vasquez, Lea) (Entered: 09/19/2006)
ORDER: The Minute Entry for the Telephone Conference held on 9/15/06 should be amended to include the following: The United States' application for a protective order, Docket Entry 543, precluding plaintiffs from deposing defendants and third party witnesses with respect to their awareness of any post−removal surveillance of attorney−client communications until Judge Gleeson rules on the pending objections to the May 30, 2006 Order, is granted. Ordered by Judge Steven M. Gold on 9/19/06. (O'Connor, Erin) (Entered: 09/19/2006)
559 Letter regarding the United States' objections to certain rulings made by Magistrate Judge Gold on September 15, 2006 by United States. (Attachments: # 1 United States' Objections to Certain Rulings Made by Magistrate Judge Gold on September 15, 2006)(Handler, Stephen) (Entered: 09/29/2006)
560 ORDER concerning government disclosure regarding the "Terrorist Surveillance Program" (superceding Magistrate Judge Gold's Order dated May 30, 2006). Ordered by Judge John Gleeson on October 3, 2006. (Gleeson, John) (Entered: 10/03/2006)
561 Letter to the Honorable Steven M. Gold re: depositions of non−party witnesses by Ibrahim Turkmen, Akil Sachveda, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 10/03/2006)

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562 Letter responding to plaintiffs' request for an order requiring the United States to produce Messrs. Ray and Lane in New York and request for a temporary stay of the Court's September 15, 2006, rulings by United States. (Handler, Stephen) (Entered: 10/06/2006)
563 Letter regarding defendant Michael McCabe's request for representation by United States. (Handler, Stephen) (Entered: 10/10/2006)
564 TRANSCRIPT of Telephone conference held on 9/15/2006 before Judge Steven M Gold. Transcript produced by Transcription Plus II. (Gonzalez, Mary) (Entered: 10/10/2006)
ORDER re 561 Letter filed by Ibrahim Turkmen,, Asif−Ur−Rehman Saffi,, Yasser Ebrahim,, Hany Ibrahim,, Akil Sachveda,, Ashraf Ibrahim,, 562 Letter, filed by United States. By letter dated October 6, 2006, defendant United States seeks a stay of an order rendered during a conference held on September 15, 2006. The order provides that out−of−district witnesses will be deposed in New York City, with plaintiffs and the United States each reimbursing half of the travel expenses the witnesses incur. The United States has appealed my ruling to United States District Judge John Gleeson, and seeks a stay of the order pending Judge Gleeson's resolution of the appeal. If a stay is granted, plaintiffs will be required to advance funds they will be entitled to recoup if my order is affirmed; if a stay is denied, the United States will be required to advance funds it will be entitled to recoup if my order is reversed. The burden of advancing funds is more easily borne by the United States, and allowing my ruling to stand pending appeal is therefore less likely to disrupt the existing deposition schedule. Accordingly, the application for a stay is denied. In the event my ruling is reversed, the United States will be permitted to seek prompt reimbursement from plaintiffs for any payments it has already made . Ordered by Judge Steven M. Gold on 10/10/06. (Gold, Steven) (Entered: 10/10/2006)
Case Reopened (Piper, Francine) (Entered: 02/22/2013)
565 MEMORANDUM in Opposition to United States' Objections to Magistrate Judge Gold's Order Dated September 19, 2006 by Javaid Iqbal. (Reinert, Alexander) (Entered: 10/13/2006)
566 Letter on behalf of all defendants regarding the motion for reconsideration of the October 3, 2006, Order and request for an extension of time by United States. (Attachments: # 1 United States' Motion and Memorandum in Support of its Motion for Reconsideration of the October 3, 2006, Order and Request for an Extension of Time# 2 proposed Order)(Handler, Stephen) (Entered: 10/16/2006)
ORDER: Should plaintiffs want to be heard on the motion 566 of the United States for reconsideration of the Court's October 3, 2006 order, which the Court is inclined to grant, they should file their response by close of business on October 19, 2006. Ordered by Judge John Gleeson on October 18, 2006. (Gleeson, John) (Entered: 10/18/2006)
567 Letter Regarding United States' Request for Reconsideration of Order dated October 3, 2006 by Javaid Iqbal. (Reinert, Alexander) (Entered: 10/19/2006)
568 Letter requesting an extension of time to October 30, 2006, to file a reply in support of the United States' Objections to Certain Rulings Made by Magistrate Judge Gold on September 15, 2006' by United States. (Handler, Stephen) (Entered: 10/19/2006)
ORDER: The United States has requested by letter 568 an extension of time to October 30, 2006 to serve and file a reply memorandum in support of its objections to a September 15, 2006 order by Magistrate Judge Gold. The request is hereby granted. Ordered by Judge John Gleeson on October 20, 2006. (Gleeson, John) (Entered: 10/20/2006)
ORDER: There being no opposition from plaintiffs, the motion and request by the United States 566 are granted: (1) The United States, through the National Security Agency, shall be allowed to make a comprehensive submission of the requisite information that will cover all federal defendants and employees. (2) The United States shall have an extension of time to November 17, 2006 to comply with the order. Ordered by Judge John Gleeson on October 20, 2006. (Gleeson, John) (Entered: 10/20/2006)

10/30/2006
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12/28/2006 01/11/2007

569 Letter regarding United States' Reply in Support of its Objections to Magistrate Judge Gold's Order Entered on September 15, 2006, and request for leave to file an 11−page brief by United States. (Attachments: # 1 United States' Reply in Support of its Objections to Magistrate Judge Gold's Order Entered on September 15, 2006)(Handler, Stephen) (Entered: 10/30/2006)
570 Letter Regarding Status Conference Scheduled for November 16, 2006 by United States. (Mahaffey, Clay) (Entered: 11/09/2006)
SCHEDULING ORDER: The parties' joint application to adjourn the conference scheduled for November 16, 2006 is GRANTED. The court, however, is not available the week of December 11th. Accordingly, the in−person status conference will be held instead at 2:00 p.m. on December 20, 2006. Counsel shall file a jointly proposed agenda no later than December 13, 2006. So Ordered. Ordered by Judge Steven M. Gold on 11/13/2006. (O'Connor, Erin) (Entered: 11/13/2006)
ORDER: I have reviewed the objections of the United States to the portion of Magistrate Judge Gold's September 15, 2006 order that directed the United States to produce "out−of−district witnesses" for deposition in New York City and split the travel costs with the plaintiffs. Because I conclude that portion of the order was neither clearly erroneous nor contrary to law, the order is affirmed. Ordered by Judge John Gleeson on November 13, 2006. Ordered by Judge John Gleeson on November 13, 2006. (Gleeson, John) (Entered: 11/13/2006)
571 Letter regarding the United States' response to the Court's October 3, 2006, Order by United States. (Attachments: # 1 United States' Notice of Lodging of In Camera, Ex Parte Materials)(Handler, Stephen) (Entered: 11/17/2006)
572 United States' ANSWER to Complaint (Plaintiffs' Third Amended Class Action Complaint and Demand for Jury Trial) by United States.(Handler, Stephen) (Entered: 12/01/2006)
573 ORDER regarding the response of the United States to my order of October 3, 2006 560 . Ordered by Judge John Gleeson on December 6, 2006. (Gleeson, John) (Entered: 12/06/2006)
574 Letter Setting Forth Joint Agenda for Status Conference by Javaid Iqbal. (Reinert, Alexander) (Entered: 12/13/2006)
575 Letter concerning production of documents by defendant Stuart Pray by Jon Osteen. (Koenigsberg, David) (Entered: 12/18/2006)
576 Letter to Judge Gold regarding discovery dispute between Plaintiffs and the United States by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 12/18/2006)
577 Letter regarding discovery dispute between the United States and the plaintiffs by United States. (Handler, Stephen) (Entered: 12/18/2006)
578 Letter in support of letter application by Mr. David Koenigsberg dated December 18, 2006 by Elizabeth Torres. (Avallone, Rocco) (Entered: 12/19/2006)
579 Letter by Stuart Pray. (Caro, Richard) (Entered: 12/20/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 12/20/2006. Meerepol et al for Turkman plaintiffs, Reinert et al for Iqbal, Handler for US, various defense counsel. Rulings on the record with respect to the application of defendants Osteen and Perez (docket entry 575 in 02−2307) with respect to the production of documents by defendant Pray, and with respect to the discovery dispute between plaintiffs and the United States (docket entries 576 and 577 in 02−2307 and 471 in 04−1809). NEXT CONFERENCE: MARCH 15, 2007 AT 2 PM. (Tape #FTR 2:09 − 4:18.) (Vasquez, Lea) (Entered: 12/28/2006)
580 TRANSCRIPT of Civil Cause for Conference held on 12/20/06 before Judge Steven M. Gold. Offical Rosalie Lombardi. (Drayton, Lorraine) (Entered: 01/08/2007)
581 Mail Returned as Not At 501, Not At ICE. Mail − Document #573 sent to Salvotore LoPresti. (Piper, Francine) (Entered: 01/11/2007)

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582 Letter Requesting Adjournment of Status Conference by Javaid Iqbal (Reinert, Alexander) (Entered: 03/13/2007)
SCHEDULING ORDER: The status conference previously scheduled for March 15th will instead be held at 2:00 p.m. on March 29, 2007. So Ordered by Magistrate Judge Steven M. Gold on 3/13/2007. (Vasquez, Lea) (Entered: 03/14/2007)
583 Letter responding to Defendant Pray's letter, dated March 14, 2007, by United States (Handler, Stephen) (Entered: 03/26/2007)
584 Letter regarding discovery dispute with the United States by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 03/27/2007)
585 Letter To Hon. Stephen M. Gold, U.S. Mag. by Stuart Pray (Caro, Richard) (Entered: 03/27/2007)
586 Letter Corrected Letter To Mag. Gold by Stuart Pray (Caro, Richard) (Entered: 03/28/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 3/29/2007. Reinert for Elmaghraby; Meerepol for Turkmen, Mahaffey for US, Caro for Pray, various other counsel. Various discovery rulings, relating in particular to disclosure of Pray documents and the scope of discovery of the United States, on the record. NEXT CONFERENCE: JUNE 26, 2007 AT 11 AM. (Tape #FTR 2:11−3:01.) (Vasquez, Lea) (Entered: 04/04/2007)
587 NOTICE of Change of Address by Haeyoung Yoon (Yoon, Haeyoung) (Entered: 04/09/2007)
588 NOTICE by Elizabeth Torres withdrawal of attorney (Leonard, Christina) (Entered: 04/12/2007)
ORDER: The Court has received public requests for copies of the second amended complaint, 28 . The docket reflects no electronic copy of this document. In a communication with my law clerk today, counsel for plaintiffs graciously agreed to upload such a copy. Ordered by Judge John Gleeson on April 17, 2007. (Gleeson, John) (Entered: 04/17/2007)
589 AMENDED COMPLAINT (Second Amended Class Action Complaint) against all defendants, filed by all plaintiffs. (Attachments: # 1 Exhibit 1, part A# 2 Exhibit 1, part B# 3 Exhibit 1, part C# 4 Exhibit 1, part D) (Meeropol, Rachel) (Entered: 04/17/2007)
590 Letter to the Honorable Steven M. Gold by Javaid Iqbal (Reinert, Alexander) (Entered: 04/19/2007)
591 Letter requesting Protective Order by United States (Handler, Stephen) (Entered: 04/19/2007)
592 Letter To Hon. Steve M. Gold by Stuart Pray (Caro, Richard) (Entered: 04/19/2007)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 4/20/2007. Reinert for plaintiffs, Caro for Prey, Handler for US, various other counsel. The application by the United States to stay discovery in light of pending criminal case, United States v LoPresti et al, 07cr273, is denied for the reasons stated on the record of today's proceeding. Having unilaterally decided to cancel the deposition in these cases scheduled for Monday April 23, and apparently having done so while the question of whether that deposition should go forward was the subject of a pending application to the court, and contending for reasons this court cannot understand that the deposition may not now go forward because it is too difficult to arrange for travel to the deposition on Monday, the United States shall be responsible for all costs incurred by any other counsel as a result of arranging to attend and conduct the deposition scheduled for April 23. The deposition that had been set for April 23 shall be rescheduled for another date next week forthwith, and the deposition scheduled for April 24 shall proceed as scheduled. Counsel are precluded from asking questions at any deposition about the specific events described in the criminal indictment, but may propound general questions even though they might prompt an answer relevant in a general sense to the charges in the indictment. This ruling is without prejudice to the right of the United States to make a formal motion for a stay

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based upon something more than conclusory assertions, but discovery will not be stayed pending such an application being made or heard. (Tape #FTR 10:12−10:35.) (Vasquez, Lea) (Entered: 04/20/2007)
Email Notification Test − DO NOT REPLY (Piper, Francine) (Entered: 04/20/2007)
593 Letter re motion to submit an ex parte declaration, in support of the United States' motion to stay, for in camera review by the Court by United States (Handler, Stephen) (Entered: 05/04/2007)
594 Letter re Motion to Stay actions by United States (Attachments: # 1 Exhibit Tab 1# 2 Exhibit Tab 2# 3 Exhibit Tab 3# 4 Exhibit Tab 4# 5 Exhibit Tab 5# 6 Exhibit Tab 6# 7 Exhibit Tab 7# 8 Exhibit Tab 8# 9 Exhibit Tab 9# 10 Exhibit Tab 10# 11 Exhibit Tab 11) (Handler, Stephen) (Entered: 05/04/2007)
595 Letter re opposition to submission of ex parte declaration (Docket No. 593) by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi (Winger, Michael) (Entered: 05/08/2007)
596 Letter to U.S. Mag. Gold Re US Stay Ltr. Motion by Stuart Pray (Caro, Richard) (Entered: 05/09/2007)
597 Letter responding to plaintiffs' letter, dated May 8, 2007, opposing United States' motion to submit Ex Parte Declaration by United States (Handler, Stephen) (Entered: 05/10/2007)
598 Letter Opposing Defendant United States' Motion to Stay Deposition Discovery by Javaid Iqbal (Reinert, Alexander) (Entered: 05/10/2007)
ORDER re 593 Letter filed by United States, granting permission to file affidavit of AUSA Chen ex parte for in camera review. Having considered the positions of the parties, I conclude that ex parte in camera review is appropriate, at least in the first instance, in the unique circumstances of this case, where defendants in a civil litigation are indicted for conduct that appears to be, at least in some respects, similar to that charged in the civil case, and where the government contends that its criminal prosecution will be hindered if the civil case goes forward. The government shall provide the Chen affidavit at its earliest convenience. Once I have reviewed the affidavit, I will consider whether it should remain under seal or be shared with counsel for the other parties in this case. Ordered by Judge Steven M. Gold on 05/14/07. (Gold, Steven) (Entered: 05/14/2007)
ORDER re 596 Letter filed by Stuart Pray, entered to clarify that the rulings made during the telephone conference on April 20 do not preclude any party, if he or she believes the circumstances warrant it, from filing a motion seeking a severance. Ordered by Judge Steven M. Gold on 05/14/07. (Gold, Steven) (Entered: 05/14/2007)
SCHEDULING ORDER: There will be an in−person conference concerning the government's application for a stay on Monday, May 21, 2007 at 1:30 p.m. Counsel for the United States and plaintiffs and AUSA Pamela Chen must attend in person. Counsel for the individual defendants are also welcome to participate in person or may arrange to participate via a conference call. So Ordered. Ordered by Judge Steven M. Gold on 5/16/2007. (OConnor, Erin) (Entered: 05/16/2007)
599 Letter responding to plaintiffs' letter, dated May 10, 2007, opposing the United States' motion to stay by United States (Handler, Stephen) (Entered: 05/16/2007)
600 Letter To Mag. Gold re Stay Motion by Stuart Pray (Caro, Richard) (Entered: 05/18/2007)
601 TRANSCRIPT of Status Conference held on 4/20/07 before Mag. Gold. Alexander A. Reinert, Esq. and Rachel Anne Meeropol, Esq. for the pltf. Stephen E. Handler, Esq., Richard Peter Caro, Esq., Rocco G. Avallone, Esq., and David A. Koenigsberg, Esq. for the defts. (Greene, Donna) (Entered: 05/21/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/21/2007. Reinert, et al for plaintiffs, Handler, Chen and Coyne for USA. Various discovery related issues discussed on the record. The court will hold a conference at 2:00 P.M. ON JUNE 4TH unless counsel report before then that the conference is not

05/31/2007 06/01/2007 06/01/2007 06/07/2007 06/11/2007 06/26/2007 07/10/2007
07/17/2007 07/17/2007 07/18/2007 07/25/2007
07/26/2007 07/26/2007

required. (Court Reporter Fred Guerino.) (Vasquez, Lea) (Entered: 05/22/2007)
602 Letter regarding the United States' motion for the entry of a Protective Order by United States (Attachments: # 1 Exhibit Protective Order) (Handler, Stephen) (Entered: 05/31/2007)
ORDER: In light of the government's letter dated May 31, 2007, docket entry 602, the conference previously set for June 4 is canceled. The next scheduled conference is set for June 26. Ordered by Judge Steven M. Gold on 06/01/07. (Gold, Steven) (Entered: 06/01/2007)
ORDER The protective order submitted by the United States as document 602−2, which the court understands has been agreed to by all parties, is hereby entered as an order of the court. Ordered by Judge Steven M. Gold on 05/31/07. (Gold, Steven) (Entered: 06/01/2007)
603 Letter re: rescheduling status conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 06/07/2007)
SCHEDULING ORDER:The Status Conference previously set for June 26th is re−scheduled to July 24th at 2:00 PM in 13D South before Chief Magistrate Steven M. Gold. Ordered by Judge Steven M. Gold on 6/11/2007. (Vasquez, Lea) (Entered: 06/11/2007)
604 NOTICE of Change of Office Address by Michael Winger (offices of Covington & Burling LLP) (Winger, Michael) (Entered: 06/26/2007)
ORDER : A conference is scheduled in this matter for July 24 at 2:00 pm. Counsel for plaintiffs, counsel for the United States, and counsel for any other parties who wish to comment shall submit a letter identifying the issues to be addressed at the conference by July 17, 2007. In particular light of the Second Circuit's decision in Iqbal, counsel should address how discovery should proceed and whether it is an appropriate time to discuss the possible settlement of any of plaintiffs' claims. Ordered by Judge Steven M. Gold on 07/10/07. (Gold, Steven) (Entered: 07/10/2007)
605 STATUS REPORT re July 24, 2007 conference by Ibrahim Turkmen (Magoolaghan, Joan) (Entered: 07/17/2007)
606 Letter identifying issues for status conference scheduled for July 24, 2007, by United States (Handler, Stephen) (Entered: 07/17/2007)
607 Letter MOTION for Hearing regarding settlement possibilities by Steven Barrere. (Ryan, James) (Entered: 07/18/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 7/24/2007. Meerepol et al for Turkmen pls, Reinert et al for Iqbal, Handler et al for defendants. Various discovery and settlement issues discussed. (1) Plaintiffs will serve new discovery demands on the United States, which may be outside the scope of Judge Pollak's prior order, within one week. Counsel will contact my chambers promptly if they anticipate litigation over the scope of the demands. (2) The United States will either produce the documents pertaining to its settlement of disciplinary charges with defendant Cotton, and withdraw its claim of confidentiality with respect to same, within one week, or move for a protective order by that time. (3) Plaintiffs and the United States will submit correspondence, by fax, regarding the status of any ongoing settlement discussions by October 1. NEXT CONFERENCE OCTOBER 24 AT 2 PM. (Vasquez, Lea) (Entered: 07/25/2007)
608 Letter Seeking Clarification of Minute Entry by Javaid Iqbal (Magoolaghan, Joan) (Entered: 07/26/2007)
ORDER re 608 Letter filed by Javaid Iqbal adopting the proposed clarification of the court's minute entry for the conference held on July 24, 2007. Plaintiffs are not to serve new discovery demands but, instead, shall inform the United States by July 31, 2007 which of their previously served demands they assert should be answered now. Ordered by Judge Steven M. Gold on 07/26/07. (Gold, Steven) (Entered: 07/26/2007)

08/23/2007 08/24/2007 10/17/2007 10/18/2007 11/01/2007 11/06/2007 11/07/2007
11/08/2007
11/15/2007 11/16/2007
11/16/2007 11/16/2007 11/19/2007 11/20/2007

609 MOTION to Substitute Attorney by Javaid Iqbal. (Attachments: # 1 Text of Proposed Order substitution of counsel) (Yoon, Haeyoung) (Entered: 08/23/2007)
ORDER: The stipulation of substitution of counsel for the plaintiff−intervenor Javaid Iqbal, 609 , is "so ordered." Ordered by Judge John Gleeson on August 24, 2007. (Gleeson, John) (Entered: 08/24/2007)
610 STATUS REPORT to Magistrate Judge Gold by Ibrahim Turkmen (Attachments: # 1 Exhibit Deposition excerpts) (Magoolaghan, Joan) (Entered: 10/17/2007)
611 Letter regarding status conference scheduled for October 24, 2007, by United States (Handler, Stephen) (Entered: 10/18/2007)
612 Letter Regarding Order on Classified Information by Javaid Iqbal (Reinert, Alexander) (Entered: 11/01/2007)
613 Letter in response to letter of Alexander Reinert on behalf of plaintiffs dated November 1, 2007 by William Beck, Steven Barrere (Ryan, James) (Entered: 11/06/2007)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold : Discovery Hearing held on 10/24/2007. Reinert, Meerepol et al for plaintiffs, Handler for United States, various other counsel present in person and by telephone. Various rulings on the record. In light of the discussion held during today's conference with respect to classified information, this Court will enter an order, absent an objection filed on or before October 31, precluding defendants from offering evidence of any fact not disclosed in discovery to justify or explain why plaintiffs were treated as they allege in these lawsuits they were. NEXT CONFERENCE: DECEMBER 20th AT 3:00 PM. (Tape #FTR 2:09−3:16.) (Vasquez, Lea) (Entered: 11/07/2007)
ORDER re 612 Letter filed by Javaid Iqbal, 613 Letter filed by William Beck, Steven Barrere: The court has received a letter dated November 1, 2007 from plaintiffs and a letter from defendants Barrerre and Beck dated November 6, 2007. Counsel shall be prepared to address the issues raised in these letters at the next conference, currently scheduled for December 20 at 3:00 p.m. Counsel for individual defendants shall be in a position to advise, at a minimum, counsel for the United States whether they anticipate relying on classified information as part of their defense, and if so, to identify the nature of that classified information. Ordered by Judge Steven M. Gold on 11/08/2007. (O'Connor, Erin) (Entered: 11/08/2007)
614 Letter Requesting Clarification of November 7, 2007, Order by United States (Handler, Stephen) (Entered: 11/15/2007)
ORDER: The court has received the letter from the United States dated November 15, 2007. There seems to be some confusion about the court's entry dated November 7, which is in fact the court's minute entry for the conference that was held on October 24. In any event, the court does intend, as indicated in the order entered on November 8, to revisit and rule upon this issue, particularly in light of the letter from defendants Barrerre and Beck dated November 6, 2007, at the conference currently set for December 20. If there is a practical need to address the issue sooner, counsel may advise my chambers and an earlier date will be scheduled. Ordered by Chief Magistrate Steven M. Gold on 11/16/07. (Gold, Steven) (Entered: 11/16/2007)
615 First MOTION to Compel U.S. Production of Documents by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Meeropol, Rachel) (Entered: 11/16/2007)
616 Letter attaching corrected Ex C by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Attachments: # 1 Exhibit C (corrected)) (Meeropol, Rachel) (Entered: 11/16/2007)
617 Letter requesting an extension of time to file a response to plaintiffs motion to compel by United States (Handler, Stephen) (Entered: 11/19/2007)
ORDER re 617 Letter filed by United States GRANTING request for extension of time to respond to plaintiffs' motion to compel. Ordered by Chief Magistrate Steven M. Gold on 11/20/07. (Gold, Steven) (Entered: 11/20/2007)

12/06/2007 12/06/2007 12/07/2007 12/07/2007
12/07/2007
12/11/2007 12/11/2007 12/12/2007
12/12/2007 12/12/2007 12/13/2007 12/14/2007 12/20/2007

618 Letter re: Torres Deposition by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Attachments: # 1 Exhibit A) (Meeropol, Rachel) (Entered: 12/06/2007)
619 Letter requesting the withdrawal of the Protective Order, Document 602−2, entered on June 1, 2007, by United States (Handler, Stephen) (Entered: 12/06/2007)
620 Letter requesting an extension of time to file a response to plaintiffs' motion to compel by United States (Handler, Stephen) (Entered: 12/07/2007)
ORDER re (510 in 1:04−cv−01809−JG−SMG) Letter filed by United States of America, (620 in 1:02−cv−02307−JG−SMG) Letter filed by United States: The government's application, with the consent of plaintiffs, for an extension of time to file its response to plaintiffs' motion to compel is GRANTED. Counsel are advised that, in the future, applications seeking relief from the court should be filed as motions, even if made in letter form. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 12/7/2007. (O'Connor, Erin) (Entered: 12/07/2007)
SCHEDULING ORDER: re (509 in 1:04−cv−01809−JG−SMG) Letter filed by United States of America, (508 in 1:04−cv−01809−JG−SMG) Letter filed by Elizabeth Torres, (618 in 1:02−cv−02307−JG−SMG) Letter filed by Shakir Baloch, Ashraf Ibrahim, Yasser Ebrahim, Asif−Ur−Rehman Saffi, Akil Sachveda, Ibrahim Turkmen, Hany Ibrahim, (619 in 1:02−cv−02307−JG−SMG) Letter filed by United States. THE COURT WILL HOLD A TELEPHONE CONFERENCE AT 3:00 PM ON DECEMBER 11, 2007 to discuss the issues raised in the letters cited above. Counsel for plaintiffs are directed to arrange the call. Only counsel involved in the issues raised are required to participate. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 12/7/2007. (O'Connor, Erin) (Entered: 12/07/2007)
621 MOTION to Dismiss by Christopher Witschel. (Attachments: # 1 Exhibit Stipulation of Voluntary Dismissal) (Saville, John) (Entered: 12/11/2007)
622 Letter responding to plaintiffs' motion to compel, dated November 16, 2007, by United States (Handler, Stephen) (Entered: 12/11/2007)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Telephone Conference held on 12/10/2007. Meerepol for Turkmen pls, Reinert for Elmaghraby plaintidds, Mahaffy and Handler for US, Avallone and Cronin, and Kousouras, for Torres. (1) Defendant Torres' motion to defer her deposition until after her criminal trial is granted. Assuming Ms. Torres is detained after trial, the court will make a courtroom available and order BOP to produce Ms. Torres at the courthouse for the deposition. (2) As per the letter of the United States dated December 6, 2007, the protective order entered on June 1, 2007 is withdrawn with respect to the United States. Any defendant being deposed or subjected to discovery demands, however, may invoke any applicable provision of the order up to but not after January 28, 2008. (Tape #FTR 4:00−4:25.) (Vasquez, Lea) (Entered: 12/12/2007)
NOTICE to all counsel. The conference scheduled for December 20th will begin at 3:30 p.m. instead of 3:00 p.m. as previously scheduled. (Vasquez, Lea) (Entered: 12/12/2007)
623 MOTION for Leave to File Reply in Support of Motion to Compel Production of Documents by US by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 12/12/2007)
ORDER granting 623 Motion for Leave to File a reply in support of plaintiffs motion to compel production of Documents on December 17, 2007. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/13/2007. (Vasquez, Lea) (Entered: 12/13/2007)
ORDER: The 621 Stipulation of Voluntary Dismissal as to defendant Christopher Witschel is "so ordered." Ordered by Judge John Gleeson on December 14, 2007. (Gleeson, John) (Entered: 12/14/2007)
ORDER granting in part and denying in part 615 Motion to Compel for reasons stated on the record during today's proceedings. Ordered by Chief Magistrate Steven M. Gold on 12/20/07. (Gold, Steven) (Entered: 12/20/2007)

12/21/2007
12/28/2007 01/03/2008 01/07/2008 01/08/2008
01/15/2008
01/24/2008 02/04/2008 02/07/2008 02/20/2008 02/20/2008 02/26/2008 02/28/2008
03/20/2008 03/24/2008

Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Status Conference held on 12/20/2007. Various discovery rulings on the record. Next conference: February 27, 2008 at 2:00 p.m. Counsel shall submit letters identifying issues to be addressed by February 20. (Court Reporter SILVERMAN.) (Vasquez, Lea) (Entered: 12/21/2007)
624 TRANSCRIPT of Telephone Conference held on 12/10/07 before Judge Mag. Gold. (Piper, Francine) (Entered: 12/28/2007)
625 TRANSCRIPT of Status Conference held on 10/24/07 before Judge Gold. (Piper, Francine) (Entered: 01/03/2008)
626 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi, Syed Amjad Ali Jaffri re Order on Motion to Compel (Meeropol, Rachel) (Entered: 01/07/2008)
ORDER: The government is directed to respond in writing, on or before Tuesday, January 15, 2008, to plaintiffs' objections 626 to Judge Gold's order dated December 20, 2007 denying in part plaintiffs' motion to compel discovery from the United States. Ordered by Judge John Gleeson on January 8, 2008. (Gleeson, John) (Entered: 01/08/2008)
627 MEMORANDUM in Opposition to Plaintiffs' Objections to Magistrate Judge Gold's Order Entered on December 20, 2007 filed by United States. (Attachments: # 1 Exhibit A (Relevant pages of transcript of 12/20/2007 hearing), # 2 Exhibit B (United States' letter, dated 11/1/2007), # 3 Exhibit C (Working Copy FBI document)) (Handler, Stephen) (Entered: 01/15/2008)
628 Letter responding to plaintiff Iqbal that the Protective Order was violated by United States (Handler, Stephen) (Entered: 01/24/2008)
629 Letter to Chief Magistrate Judge Gold re deposition of defendant Elizabeth Torres by Ibrahim Turkmen, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi (Winger, Michael) (Entered: 02/04/2008)
ORDER: Because Judge Gold's order dated December 20, 2007 denying in part plaintiffs' motion to compel discovery is neither clearly erroneous nor contrary to law, I affirm it. Ordered by Judge John Gleeson on February 7, 2008. (Gleeson, John) (Entered: 02/07/2008)
630 Letter regarding the status of discovery for February 27th Conference by United States (Handler, Stephen) (Entered: 02/20/2008)
631 STATUS REPORT by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 02/20/2008)
632 Letter to Chief Judge Gold by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Attachments: # 1 Exhibit 1) (Meeropol, Rachel) (Entered: 02/26/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 2/27/2008. Meerepol et al for plaintiffs, Handler et al for defendants. Various discovery rulings on the record. NEXT CONFERENCE: MAY 8, 2008 AT 2:00 PM. Counsel shall submit letters by May 2nd identifying the issues to be addressed at the next conference. (Court Reporter Fred Guerino.) (Vasquez, Lea) (Entered: 02/28/2008)
633 MOTION to Compel Defendant Elizabeth Torres by Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, akhil sachdeva, Asif−Ur−Rehman Saffi. (Meeropol, Rachel) (Entered: 03/20/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 3/21/2008. Struger for plaintiffs, Kousouros (criminal counsel) and Cronin (civil action counsel) for Torres. The deposition scheduled for 3/24 will proceed as scheduled and, for the reasons stated on the record, plaintiffs will not be precluded from questioning Ms. Torres about any particular subject matter, even if that subject matter overlaps with the allegations involved in

04/01/2008 04/02/2008 04/03/2008 04/15/2008 05/02/2008
05/08/2008
05/28/2008 05/29/2008 07/03/2008 07/03/2008 08/07/2008 08/08/2008 08/12/2008

Torres' criminal case. (Tape #FTR 2:02−2:16.) (Vasquez, Lea) (Entered: 03/24/2008)
634 STIPULATION of Dismissal of Claim 30 by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Strugar, Matthew) (Entered: 04/01/2008)
ORDER: The Stipulation of Voluntary Dismissal 634 dated April 1, 2008 is "so ordered." Ordered by Judge John Gleeson on April 2, 2008. (Gleeson, John) (Entered: 04/02/2008)
635 Letter MOTION to Adjourn Conference of May 8, 2008 by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Strugar, Matthew) (Entered: 04/03/2008)
ORDER granting 635 Motion to Adjourn Conference. The conference previously scheduled for May 8th will be held instead at 3:00 p.m. on June 4th. Counsel shall submit a report identifying the issues to be raised at the conference by May 28th. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/15/2008. (Vasquez, Lea) (Entered: 04/15/2008)
636 Transcript of Civil Cause for Telephone Conference Proceedings held on 3/21/08, before Judge Steven M. Gold. Court Transcriber: Mary Greco. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Drayton, Lorraine) (Entered: 05/02/2008)
NOTICE: The next in−person status conference in these related actions is scheduled for June 4, 2008 at 3:00 p.m. By letter dated April 3, 2008, plaintiffs in the Turkmen action requested an adjournment of the joint status conference scheduled for May 8, 2008. 02−CV−2307, Docket Entry 635. Plaintiffs indicated in their letter that they spoke to parties in both actions and there was no opposition to adjourning the conference. Accordingly, on April 15, 2008, I granted plaintiffs' motion and adjourned the conference previously scheduled for May 8th to 3:00 p.m. on June 4th. COUNSEL ARE DIRECTED TO FILE ALL FUTURE REQUESTS THAT AFFECT BOTH ACTIONS ON THE DOCKET SHEETS OF BOTH ACTIONS. Counsel are reminded that a report identifying the issues to be raised at the conference must be submitted by May 28th. (O'Connor, Erin) (Entered: 05/08/2008)
637 MOTION to Adjourn Conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Strugar, Matthew) (Entered: 05/28/2008)
ORDER granting (544) Motion to Adjourn Conference in case 1:04−cv−01809−JG−SMG; granting (637) Motion to Adjourn Conference in case 1:02−cv−02307−JG−SMG. The conference previously scheduled for June 4th will instead be held at 3:00 p.m. on July 10, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/29/2008. (Vasquez, Lea) (Entered: 05/29/2008)
638 MOTION to Adjourn Conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Strugar, Matthew) (Entered: 07/03/2008)
ORDER granting 638 Motion to Adjourn Conference. The conference previously scheduled for July 10th will be held instead at 10:00 a.m. on September 10, 2008. Counsel shall submit a report identifying the issues to be raised at the conference by September 4th. So ordered. Ordered by Chief Magistrate Steven M. Gold on 7/3/2008. (O'Connor, Erin) (Entered: 07/03/2008)
639 Letter Seeking Order to Preclude Discovery by United States (Attachments: # 1 Exhibit Tab A Plaintiffs' First Combined Discovery Demand to Defendant United States) (Handler, Stephen) (Entered: 08/07/2008)
640 Letter Defs. Rolince & Maxwell Request for Access to Classified and Other Information by United States (Mahaffey, Clay) (Entered: 08/08/2008)
641 Letter in opposition to stay application of the United States by Ibrahim Turkmen (Attachments: # 1 Exhibit A) (Magoolaghan, Joan) (Entered: 08/12/2008)

08/19/2008 08/22/2008 09/04/2008 09/04/2008 09/09/2008 09/09/2008
09/12/2008
09/17/2008 09/17/2008 09/18/2008 09/19/2008 09/22/2008

642 Letter in opposition to Rolince/Maxwell stay application by Ibrahim Turkmen (Magoolaghan, Joan) (Entered: 08/19/2008)
643 Letter Replying to Plaintiffs' Opposition to Motion Seeking Order to Preclude Discovery by United States (Handler, Stephen) (Entered: 08/22/2008)
644 STATUS REPORT by Ibrahim Turkmen, Javaid Iqbal, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Strugar, Matthew) (Entered: 09/04/2008)
645 Letter Status Report by United States (Handler, Stephen) (Entered: 09/04/2008)
646 Letter MOTION for Leave to File Motion to Intervene by Irum E. Shiekh. (Steger, Michael) (Entered: 09/09/2008)
ORDER granting 646 Motion for Leave to File. Non−party Irum Shiekh may file a motion to intervene and a motion to lift the protective order by September 22, 2008. Any opposition shall be filed by October 6, 2008. Any reply is due no later than October 13, 2008. The court shall decide the motions on the papers unless oral argument is requested. Counsel for Irum Sheikh may, of course, attend the public proceedings scheduled for tomorrow, September 10th, but no ruling will be issued on her motions. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 9/9/2008. (O'Connor, Erin) (Entered: 09/09/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 9/10/2008. Magoolaghan et al for plaintiffs, Handler et al for US, various other counsel for individual defendants. (1) The United States will complete its rolling production with respect to the 169 witnesses identified in its Rule 26(a) disclosure by November 17. (2) The application of the United States to bar the depositions of witnesses from the OIG is denied. The United States may, of course, instruct the witnesses not to answer questions calling for privileged information. See Fed. R. Civ. P. 30(c)(2); Local Civil Rules 26.2 and 30.6. (3) The applications of defendants Rolince and Maxwell and of the United States to stay certain aspects of discovery are granted in part and denied in part as specified in detail on the record of today's proceeding. Counsel for the United States and for Rolince and Maxwell shall continue their efforts to resolve the request by Rolince and Maxwell for access to certain classified information, and shall submit a letter or memorandum to the court by October 17 reporting on the status of those efforts and proposing a schedule for presenting the matter to the court if it remains unresolved at that time. (4) Any defendants with a current intention to rely on classified information and have not already disclosed that intention shall do so by September 26. (5) Discovery with respect to what the court and the parties have referred to as "Phase One" of this litigation shall be concluded by December 1, 2008, absent an application to extend the date based upon disclosures of information made after today's conference. NEXT CONFERENCE: DECEMBER 19, 2008 AT 10:00 A.M. Letters identifying issues to be raised at the next conference shall be submitted no later than December 15th. Counsel shall be prepared to discuss the grounds for any anticipated motion for summary judgment and to set a motion schedule. (Tape #FTR 10:10−11:15.) (Vasquez, Lea) (Entered: 09/12/2008)
647 Letter MOTION for Extension of Time to Complete Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Strugar, Matthew) (Entered: 09/17/2008)
648 Letter To Chief Magistrate Judge Gold by Stuart Pray (Caro, Richard) (Entered: 09/17/2008)
649 Letter MOTION for Extension of Time to File Motion for Leave to Intervene by Irum E. Shiekh. (Steger, Michael) (Entered: 09/18/2008)
ORDER granting 649 Motion for Extension of Time to File. The revised briefing scheduled is APPROVED. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/19/2008. (Vasquez, Lea) (Entered: 09/19/2008)
ORDER granting 647 Motion for Extension of Time to Complete Discovery as no timely objection has been filed. Ordered by Chief Magistrate Steven M. Gold on 09/22/08. (Gold, Steven) (Entered: 09/22/2008)

10/29/2008 11/14/2008 11/18/2008
12/11/2008 12/12/2008 12/19/2008 01/08/2009 01/13/2009 01/14/2009 01/16/2009
01/22/2009
01/29/2009 01/29/2009 02/04/2009 02/04/2009 02/04/2009

650 Letter to Chief Judge Gold by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 10/29/2008)
651 Letter MOTION for Extension of Time to Complete Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Strugar, Matthew) (Entered: 11/14/2008)
ORDER granting 651 Motion for Extension of Time to Complete Discovery. The parties shall report to the court no later than January 14, 2009 concerning the status of discovery. Accordingly, the conference previously scheduled for December 19, 2008 is adjourned to 10:00 a.m. on February 6, 2009. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 11/18/2008. (O'Connor, Erin) (Entered: 11/18/2008)
652 MOTION for Leave to Appear Pro Hac Vice (Attorney − Susan M. D'Ambrosio) by Kevin Lopez. (Piper, Francine) (Entered: 12/19/2008)
653 FILING FEE: $ 25.00, receipt number 360889 − Pro Hac Vice Motion − Susan M. D'Ambrosio (Piper, Francine) (Entered: 12/19/2008)
ORDER granting 652 Motion for Susan M. D'Ambrosio Leave to Appear Pro Hac Vice. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/19/2008. (Vasquez, Lea) (Entered: 12/19/2008)
654 Letter MOTION to Withdraw as Attorney by James Sherman. (Sullivan, Thomas) (Entered: 01/08/2009)
655 MOTION for Extension of Time to Complete Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi. (Strugar, Matthew) (Entered: 01/13/2009)
656 Letter Regarding Agenda for February 6, 2009, Status Conference by United States of America (Mahaffey, Clay) (Entered: 01/14/2009)
ORDER granting (562) Motion for Extension of Time to Complete Discovery in case 1:04−cv−01809−JG−SMG; granting (655) Motion for Extension of Time to Complete Discovery in case 1:02−cv−02307−JG−SMG. Counsel shall submit a letter by January 29th identifying any issues they seek to raise at the conference. Responses shall be filed by February 4th. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/16/2009. (Vasquez, Lea) (Entered: 01/16/2009)
ORDER granting (561) Motion to Withdraw as Attorney. Attorney Thomas M. Sullivan terminated in case 1:04−cv−01809−JG−SMG; granting (654) Motion to Withdraw as Attorney. Attorney Thomas M. Sullivan terminated in case 1:02−cv−02307−JG−SMG. Ordered by Chief Magistrate Steven M. Gold on 1/22/2009. (O'Connor, Erin) (Entered: 01/22/2009)
657 Letter Regarding Agenda for February 6, 2009 Status Conference by United States of America (Attachments: # 1 Exhibit Plts Fourth Request for Production to U.S., # 2 Exhibit Plts Rule 30(b)(6) Notice) (Mahaffey, Clay) (Entered: 01/29/2009)
658 STATUS REPORT by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I) (Meeropol, Rachel) (Entered: 01/29/2009)
ORDER terminating as moot 607 Motion for Hearing; terminating as moot 609 Motion to Substitute Attorney −− see Judge Gleeson's Order dated 8/24/07 ; granting 633 Motion to Compel −− see Minute Entry dated 3/24/07. Ordered by Chief Magistrate Steven M. Gold on 2/4/2009. (O'Connor, Erin) (Entered: 02/04/2009)
ORDER terminating as moot 552 Motion for Protective Order; granting 553 Motion to Quash. See Minute Entry of 9/15/06. Ordered by Chief Magistrate Steven M. Gold on 2/4/2009. (O'Connor, Erin) (Entered: 02/04/2009)
659 NOTICE of Appearance by Paul David Stern on behalf of United States of America (aty to be noticed) (Stern, Paul) (Entered: 02/04/2009)

02/04/2009
02/04/2009 02/04/2009 02/09/2009
02/27/2009 03/02/2009 03/03/2009
03/16/2009 03/23/2009 03/25/2009 03/26/2009 04/02/2009
04/06/2009

660 TRANSCRIPT of Proceedings held on March 29, 2007,before Judge Gold. Court Transcriber Typewrite Word Processing Service, Telephone number 718−966−1401. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/25/2009. Redacted Transcript Deadline set for 3/9/2009. Release of Transcript Restriction set for 5/5/2009. (Rocco, Christine) (Entered: 02/04/2009)
661 Letter in Response to United States' Request for Protective Order by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 02/04/2009)
662 Letter to Chief Magistrate Judge Gold in Response to Plts. Agenda Letter by United States of America (Attachments: # 1 Exhibit Molerio Transcript, # 2 Exhibit Gleason Transcript, # 3 Exhibit Pearson Transcript, # 4 Exhibit Forman Transcript, # 5 Exhibit Cadman Transcript, # 6 Exhibit Moran Transcript, # 7 Exhibit Mawn Transcript) (Mahaffey, Clay) (Entered: 02/04/2009)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 2/6/2009. Meerepol and Magoolihan for plaintiffs, Mahaffey and Handler for defendants. Various discovery rulings on the record of the proceedings. The government will submit a letter within two weeks proposing a schedule for OIG depositions. NEXT CONFERENCE: March 31, 2009 at 10:00 a.m. Counsel are to submit letters setting forth an agenda for the conference by March 26th. (Court Reporter Torres−Butler.) (Vasquez, Lea) (Entered: 02/09/2009)
663 STATUS REPORT on Phase One Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Strugar, Matthew) (Entered: 02/27/2009)
664 NOTICE of Change of Address by David A Koenigsberg and Menz Bonner & Komar LLP (Koenigsberg, David) (Entered: 03/02/2009)
STATUS REPORT ORDER re (570 in 1:04−cv−01809−JG−SMG) Status Report filed by Ibrahim Turkmen, (663 in 1:02−cv−02307−JG−SMG) Status Report filed by Shakir Baloch, Ashraf Ibrahim, Yasser Ebrahim, Asif−Ur−Rehman Saffi, Akil Sachveda, Ibrahim Turkmen, Hany Ibrahim. As plaintiffs propose, they shall submit a report on the status of Phase One discovery by 3/16/2009. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/3/2009. (Vasquez, Lea) (Entered: 03/03/2009)
665 STATUS REPORT on Phase One Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Strugar, Matthew) (Entered: 03/16/2009)
666 NOTICE of Appearance by Tabitha Justice on behalf of United States of America (aty to be noticed) (Justice, Tabitha) (Entered: 03/23/2009)
667 Letter regarding Status Conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 03/25/2009)
SCHEDULING ORDER: The conference previously scheduled for March 31st will instead be held at 3:00 p.m. on Monday, April 27th. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/26/2009. (Vasquez, Lea) (Entered: 03/26/2009)
SCHEDULING ORDER: At the request of the United States and the Turkmen plaintiffs, the court will hold a settlement conference at 2:00 p.m. on April 20, 2009. Counsel shall have a firm position on settlement. Counsel shall submit settlement positions via fax to 718−613−2565, if the submission is no more than 10 pages, no later than 12:00 noon on April 15, 2009. Otherwise, counsel shall deliver a hard copy to Chambers by the same date. Only counsel participating in the settlement negotiations are required to attend the conference. Ordered by Chief Magistrate Steven M. Gold on 4/2/2009. (O'Connor, Erin) (Entered: 04/02/2009)
668 NOTICE of Appearance by Armelle Nina VanDorp on behalf of United States of America (aty to be noticed) (VanDorp, Armelle) (Entered: 04/06/2009)

04/21/2009
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06/10/2009 06/11/2009 06/16/2009 06/16/2009 06/19/2009 06/19/2009 06/19/2009
06/24/2009
06/26/2009

Minute Entry for Settlement Conference held on 4/21/2009 before Chief Magistrate Judge Steven M. Gold: Meerepol et al for plaintiffs, Handler et al for United States. Plaintiffs shall submit a letter by April 21, 2009 indicating whether the conference previously scheduled for April 27, 2009 should proceed as scheduled and if so, outlining an agenda for the conference. Plaintiffs shall submit a letter, which may be transmitted by ex parte fax to 718−613−2565, by May 11, 2009, reporting on the status of today's settlement discussions. (Vasquez, Lea) (Entered: 04/21/2009)
669 Letter to Judge Gold by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 04/21/2009)
SCHEDULING ORDER: At the parties' request, the status conference previously scheduled for April 27, 2009 is adjourned to 3:00 p.m. on June 23, 2009. Counsel are to submit letters setting forth an agenda for the conference by 12:00 noon on June 19th. Ordered by Chief Magistrate Steven M. Gold on 4/23/2009. (O'Connor, Erin) (Entered: 04/23/2009)
SCHEDULING ORDER: The court will hold a settlement conference at 10:00 a.m. on June 22, 2009. Counsel shall have a firm position on settlement. Counsel shall submit any updated settlement positions via fax to 718−613−2565 no later than 12:00 noon on June 19, 2009. Only counsel participating in the settlement negotiations are required to attend the conference. Counsel are also alerted to the fact that the court may need to adjourn the settlement conference to 4:30 on the same date. Counsel are requested to keep that time slot available. Ordered by Chief Magistrate Steven M. Gold on 6/3/2009. (O'Connor, Erin) (Entered: 06/03/2009)
670 Letter Motion to Stay Discovery by United States of America (Attachments: # 1 Exhibit Tab A, # 2 Exhibit Tab B, # 3 Exhibit Tab C, # 4 Exhibit Tab D, # 5 Exhibit Tab E) (Handler, Stephen) (Entered: 06/10/2009)
671 NOTICE of Change of address, telephone number, email address by Yvonne Shivers for firm of Levitt & Kaizer (Shivers, Yvonne) (Entered: 06/11/2009)
672 Letter in Support of United States' Motion to Stay Discovery by John Ashcroft, Robert Mueller (Barghaan, Dennis) (Entered: 06/16/2009)
673 Letter in Response to United States' Motion to Stay Discovery by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Attachments: # 1 Exhibit A) (Meeropol, Rachel) (Entered: 06/16/2009)
674 Letter in Support of Motion to Stay Discovery by Dennis Hasty (Murphy, Justin) (Entered: 06/19/2009)
675 Letter in Support of Motion to Stay Discovery by James W. Ziglar (McDaniel, William) (Entered: 06/19/2009)
ORDER: The parties' telephonic application to adjourn the upcoming conferences is granted. Accordingly, the settlement conference previously scheduled for June 22, 2009 will be held instead at 3:00 p.m. on June 23, 2009. The status conference previously scheduled for June 23, 2009 will be held instead at 10:30 a.m. on July 2, 2009. Counsel shall submit letters setting forth an agenda for the status conference no later than close of business on June 29, 2009. Ordered by Chief Magistrate Steven M. Gold on 6/19/2009. (O'Connor, Erin) (Entered: 06/19/2009)
Minute Entry for Settlement Conference held on 6/23/2009 before Chief Magistrate Judge Steven M. Gold: Meerepol et al for Turkmen plaintiffs, Reinert and Magoolaghan for Iqbal, Handler et al for United States. TODAY'S SETTLEMENT CONFERENCE WILL BE CONTINUED AT 10:00 AM ON JULY 2ND. COUNSEL FOR PLAINTIFFS ARE TO USE THEIR BEST EFFORTS TO ARRANGE FOR THEIR CLIENTS TO BE AVAILABLE BY TELEPHONE DURING THE CONFERENCE. THE ARGUMENT ON DEFENDANTS' APPLICATION FOR A STAY WILL BE HELD AT 4:00 PM ON JULY 2ND. (Vasquez, Lea) (Entered: 06/24/2009)
676 Letter in Opposition to Defendants Hasty, Ziglar, Cooksey, Rardin, and Sawyer's Motions for Stay of Discovery by Javaid Iqbal (Reinert, Alexander) (Entered:

06/29/2009 06/29/2009 06/30/2009 07/02/2009
07/24/2009 08/05/2009 08/10/2009 08/14/2009
08/26/2009 09/18/2009 10/01/2009 11/02/2009

06/26/2009)
677 Letter re Proposed Agenda for Status Conference by Ibrahim Turkmen, Akil Sachveda, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Asif−Ur−Rehman Saffi (Meeropol, Rachel) (Entered: 06/29/2009)
678 Letter regarding agenda for Status Conference scheduled for July 2, 2009, by United States of America (Handler, Stephen) (Entered: 06/29/2009)
ORDER: Due to a conflict by the court, the status conference and oral argument on the pending discovery motions, previously scheduled for July 2, 2009, is CANCELLED. The conference will be held instead in August on a date to be determined. Ordered by Chief Magistrate Steven M. Gold on 6/30/2009. (O'Connor, Erin) (Entered: 06/30/2009)
SCHEDULING ORDER: The settlement conference previously scheduled for July 2, 2009 will be held instead at 10:30 a.m. on August 13, 2009. By close of business on August 10, 2009, counsel for plaintiffs shall submit a letter with the following information: a) a list of all claims currently pending and a brief summary of the nature of each claim, and indicating against which defendants; and b) a list of claims no longer pending or pending appeal and whether plaintiffs intend to pursue any of these claims. Plaintiffs may submit their letter, along with their updated settlement position, ex parte by fax. Counsel for the United States may submit any updated settlement letter by the same date. The status conference previously scheduled for July 2, 2009 will be held instead at 2:00 p.m. on August 13, 2009. Counsel shall submit updated agenda letters no later than close of business on August 10, 2009. Ordered by Chief Magistrate Steven M. Gold on 7/2/2009. (O'Connor, Erin) (Entered: 07/02/2009)
679 NOTICE of Change of Address by Allan Noel Taffet (Taffet, Allan) (Entered: 07/24/2009)
680 Letter reply to the letters of both Javaid Iqbal and the Turkmen Plaintiffs in opposition to the June 10, 2009 motion to stay discovery by United States of America (Handler, Stephen) (Entered: 08/05/2009)
681 Letter re Agenda for August 13, 2009 Status Conference by Shakir Baloch, Yasser Ebrahim, Ashraf Ibrahim, Hany Ibrahim, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 08/10/2009)
Minute Entry for Settlement Conference held on 8/13/2009 proceedings held before Chief Magistrate Judge Steven M. Gold: Meerepol et al. for Turkmen plaintiffs, Reinert et al. for Iqbal, Handler et al. for United States. Settlement agreement reached with Turkmen MDC plaintiffs and United States. Counsel will submit a stipulation discontinuing these claims, or a status report on their efforts to do so, by October 1. A further settlement conference with Iqbal and the United States will be held at 10:00 a.m. on September 8. Principals with full settlement authority must be present or available by telephone. Argument on defendants' motion to stay is adjourned without date, to be rescheduled if a settlement is not reached on September 8. (Vasquez, Lea) (Entered: 08/14/2009)
NOTICE: Per counsels' request, the conference previously scheduled for September 8th will instead be held at 10:30 a.m. on September 18, 2009. (Vasquez, Lea) (Entered: 08/26/2009)
Minute Entry for Settlement Conference held on 9/18/2009 before Chief Magistrate Judge Steven M. Gold: Magoolaghan et al for plaintiff Iqbal, Handler et al for defendants. Settlement discussed. If the parties are unable to reach a settlement, they shall submit a letter by October 2 indicating the manner in which they intend to proceed with the litigation of Mr. Iqbal's claims. (Vasquez, Lea) (Entered: 09/18/2009)
682 Letter regarding status of the settlement filed on behalf of the plaintiffs and by United States of America (Handler, Stephen) (Entered: 10/01/2009)
683 Letter To Judge Gleeson requesting pre−motion conference by Yasser Ebrahim, Ashraf Ibrahim, Hany Ibrahim, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 11/02/2009)

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ORDER: Plaintiffs' request for a pre−motion conference, 683 , is respectfully referred to Magistrate Judge Gold. Ordered by Judge John Gleeson on 11/4/2009. (Gleeson, John) (Entered: 11/04/2009)
684 Letter consenting to plaintiff's request to file an amended complaint, and clarifying that these intervenors have appeared in this action, are members of the plaintiff class, and are exercising their rights to participate in this action and to appear through an attorney (the undersigned) in addition to class counsel by Paul Kurzberg, Silvan Kurzberg, Omer Gavriel Marmari, Yaron Shmuel (Tolchin, Robert) (Entered: 11/04/2009)
SCHEDULING ORDER: A telephone conference will be held at 3:00 p.m. on November 12, 2009. Counsel for plaintiffs is directed to arrange the call with all parties as well as confirm this conference date and time with counsel for defendants. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/5/2009. (Vasquez, Lea) (Entered: 11/05/2009)
685 Letter to Judge Gold regarding date of pre−motion conference by Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 11/09/2009)
SCHEDULING ORDER re 685 Letter filed by Akil Sachveda, Ibrahim Turkmen: The telephone conference scheduled for November 12th is cancelled. An in−person pre−motion conference will be held at 3:30 p.m. on November 23rd. The Court is unavailable on the date suggested by counsel. Letters regarding the parties positions are to be submitted by November 16th. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/9/2009. (Vasquez, Lea) (Entered: 11/09/2009)
686 Letter in Response to Plaintiffs' Request for a Pre−Motion Conference by John Ashcroft (Barghaan, Dennis) (Entered: 11/16/2009)
687 Letter regarding Pre−Motion Conference by Akil Sachveda, Ibrahim Turkmen (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Meeropol, Rachel) (Entered: 11/16/2009)
688 Letter in response to plaintiffs' Request for a Pre−motion Conference by United States of America (Handler, Stephen) (Entered: 11/16/2009)
689 Letter pursuant to Nov., 9 2009 scheduling order by Paul Kurzberg, Silvan Kurzberg, Omer Gavriel Marmari, Yaron Shmuel (Tolchin, Robert) (Entered: 11/16/2009)
690 Letter In Response to Plaintiffs' Request for a Pre−Motion Conference by Michael Zenk (Taffet, Allan) (Entered: 11/16/2009)
691 Letter To Chief Magistrate Gold −Rule 12(c) Letter Motion by Stuart Pray (Attachments: # 1 Appendix Settlement Agreements) (Caro, Richard) (Entered: 11/17/2009)
692 Letter in response to United States' November 16, 2009 letter by Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 11/17/2009)
693 Letter in response to Mr. Pray's Motion by Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 11/18/2009)
694 Letter To Chief Magistrate Gold −Reply to Plaintiffs' Objection to Rule 12(c) Letter Motion by Stuart Pray (Caro, Richard) (Entered: 11/18/2009)
695 Letter To Chief Magistrate Gold −Re Nov. 23 Pre−Motion Conference by Stuart Pray (Caro, Richard) (Entered: 11/19/2009)
ORDER re 695 Letter filed by Stuart Pray. Counsels' request to appear by phone is granted. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/19/2009. (Vasquez, Lea) (Entered: 11/19/2009)
696 Letter for leave to file response to Plaintiff's November 2, 2009 pre−motion conference letter by James Sherman (Roth, Debra) (Entered: 11/19/2009)
NOTICE: Several counsel have contacted the court seeking permission to appear by telephone for the November 23rd conference. Counsel who are not required to attend in person are permitted to appear by phone. However, counsel are to work together and without the assistance of the Court to make arrangements for the call. The court does not arrange conference calls and does not advise how to go about doing so. The

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court will expect the instructions for the call to be distributed to all counsel well in advance of the conference. All counsel should be on the line at the time the call is made to the Court so there are no interruptions once the conference has begun. THIS NOTICE SHOULD BE REFERRED TO FOR FUTURE CONFERENCES UNLESS OTHERWISE ADVISED BY THE COURT. (Vasquez, Lea) (Entered: 11/20/2009)
Minute Entry for Interim Pretrial Conference held on 11/23/2009 before Chief Magistrate Judge Steven M. Gold: Meerepol et al for plaintiffs, Handler for US, Barghaan for Ashcroft, other counsel. Discussion of plaintiffs' intention to move for leave to file a Fourth Amended Complaint held. No further action will be taken at this time in light of the pending proceedings before the Second CIrcuit Court of Appeals. (Tape # FTR 3:38−4:01.) (Vasquez, Lea) (Entered: 11/24/2009)
697 TRANSCRIPT of Proceedings held on November 23, 2009, before Judge Gold. Court Transcriber Fiore Reporting and Transcription Service, Inc., Telephone number (203)929−9992. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/14/2009. Redacted Transcript Deadline set for 12/22/2009. Release of Transcript Restriction set for 2/19/2010. (Rocco, Christine) (Entered: 11/24/2009)
700 MANDATE of USCA as to 540 Notice of Appeal filed by James W. Ziglar, 542 Notice of Appeal filed by Robert Mueller, John Ashcroft, 556 Notice of Appeal, filed by Shakir Baloch, akhil sachdeva, Ashraf Ibrahim, Yasser Ebrahim, Asif−Ur−Rehman Saffi, Ibrahim Turkmen, Hany Ibrahim, 538 Notice of Appeal filed by Dennis Hasty, 541 Notice of Appeal filed by James Sherman. The cross−appeals were ordered on the District Court's record and the parties brief. It is Ordered that the Order of the District Court is affirmed in part, vacated in part and remanded for further proceedings in accordance with the opinion of this Court. Issued as Mandate: 2/25/10. USCA#06−3745−cv (L); 06−3785−cv(CON); 06−3789−cv(CON);06−3800−cv(CON): 06−4187−cv(XAP). Chambers notified. (Attachments: # 1 Opinion) (McGee, Mary Ann) (Entered: 03/03/2010)
699 Letter to Judge Gleeson and Judge Gold by Yasser Ebrahim, Ashraf Ibrahim, Hany Ibrahim, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen (Attachments: # 1 Attachment A, # 2 Attachment B) (Meeropol, Rachel) (Entered: 03/03/2010)
ORDER re 699 . The court has received plaintiffs' letter dated March 3, 2010. Any response by defendants shall be submitted no later than March 11, 2010. Ordered by Chief Magistrate Steven M. Gold on 3/4/2010. (O'Connor, Erin) (Entered: 03/04/2010)
701 Letter in Response to Plaintiffs' Correspondence of March 3, 2010 by John Ashcroft (Attachments: # 1 Exhibit A−B) (Barghaan, Dennis) (Entered: 03/11/2010)
702 Letter in response to Plaintiffs' March 3, 2010 letter by United States of America (Handler, Stephen) (Entered: 03/11/2010)
ORDER: I agree with the government that the proposed motion seeking class certification, 699 , is inappropriate at this time. The other motions, 699 , are referred to Magistrate Judge Gold. Ordered by Judge John Gleeson on 3/15/2010. (Reddy, Anitha) (Entered: 03/15/2010)
703 Order, that pursuant to Rule 41(a)(2) of the FRCP, that all claims of Pltffs Asif−Ur Rehman Saffi, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch and Ashraf Ibrahim are dismissed with prejudice, with each party bearing its own fees, costs and expenses. (Ordered by Judge John Gleeson on 3/16/2010) (Piper, Francine) (Entered: 03/17/2010)
ORDER: By Order dated March 15, 2010, the Honorable John Gleeson referred plaintiffs' motions for leave to amend and for intervention to me to report and recommend. The parties' proposed briefing scheduled is approved. Accordingly, plaintiffs shall submit their motions no later than March 25, 2010; defendants' opposition to the motions is due no later than April 22, 2010; plaintiffs' reply is due no later than May 6, 2010. The court will hear oral argument on the motions at 2:00 pm on May 26, 2010. The court would appreciate any effort by defendants to present a joint response, or at least partially combined responses. Ordered by Chief Magistrate Steven M. Gold on 3/18/2010. (O'Connor, Erin) (Entered: 03/18/2010)

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704 MOTION to Intervene and to Amend the Complaint by Akil Sachveda, Ibrahim Turkmen, Ahmer Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Purna Bajracharya. (Attachments: # 1 Memorandum in Support, # 2 Certificate of Service, # 3 Letter regarding motion) (Meeropol, Rachel) (Entered: 03/25/2010)
706 Consent MOTION for Extension of Time to File Response/Reply as to 704 MOTION to Intervene and to Amend the Complaint by John Ashcroft, Joseph Cuciti, Dennis Hasty, Salvatore LoPresti, Robert Mueller, James Sherman, Michael Zenk, James W. Ziglar. (Barghaan, Dennis) (Entered: 04/16/2010)
ORDER granting 706 Motion for Extension of Time to File Response/Reply. Defendants' opposition is due May 6, 2010; plaintiffs' reply is due May 20, 2010. The oral argument previously scheduled for May 26th is adjourned to 2:00 p.m. on June 15, 2010. So Ordered by Chief Magistrate Steven M. Gold on 4/16/2010. (O'Connor, Erin) (Entered: 04/16/2010)
707 MOTION to Adjourn Conference by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Ibrahim Turkmen, akhil sachdeva. (Winger, Michael) (Entered: 04/16/2010)
ORDER granting 707 Motion to Adjourn Conference. The Oral Argument will be held instead at 2:00 p.m. on June 22, 2010. Ordered by Chief Magistrate Steven M. Gold on 4/19/2010. (O'Connor, Erin) (Entered: 04/19/2010)
708 MEMORANDUM in Opposition re 704 MOTION to Intervene and to Amend the Complaint (on behalf of all remaining individual capacity defendants) filed by John Ashcroft. (Barghaan, Dennis) (Entered: 05/06/2010)
709 MEMORANDUM in Opposition to Proposed Intervenors' Joint Motion for Leave to Intervene and to Amend Complaint filed by United States of America. (Attachments: # 1 Letter, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I) (Handler, Stephen) (Entered: 05/06/2010)
710 MOTION for Leave to File Excess Pages by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Akil Sachveda, Ibrahim Turkmen. (Meeropol, Rachel) (Entered: 05/14/2010)
ORDER granting 710 Motion for Leave to File Excess Pages. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/14/2010. (Vasquez, Lea) (Entered: 05/14/2010)
711 Letter MOTION to Withdraw as Attorney by United States of America. (Justice, Tabitha) (Entered: 05/17/2010)
ORDER granting 711 Motion to Withdraw as Attorney. Attorney Tabitha Justice terminated. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/18/2010. (Vasquez, Lea) (Entered: 05/18/2010)
712 Letter to Judge Gleeson and Judge Gold by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 05/20/2010)
713 REPLY in Support re 704 MOTION to Intervene and to Amend the Complaint filed by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen. (Meeropol, Rachel) (Entered: 05/20/2010)
Minute Entry for Motion Hearing held on 6/22/2010 before Chief Magistrate Judge Steven M. Gold re 704 MOTION to Intervene and to Amend the Complaint filed by Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Ahmer Abbasi, Ibrahim Turkmen, Purna Bajracharya, Akil Sachveda, Anser Mehmood: Meeropol et al for plaintiffs; Handler for United States; Barghaan for defendant Ashcroft; Lawrence for defendant Mueller; Sampson for defendant Ziglar; Murphy for defendant Hasty; Klein for defendant Zenk; no appearance for defendant Sherman; no appearance for defendant LoPresti; Wolin for defendant Cuciti. Oral argument held on plaintiffs' motion for intervention and leave to amend. Decision reserved. (Court Reporter Sheldon Silverman.) (Vasquez, Lea) (Entered: 06/23/2010)

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714 REPORT AND RECOMMENDATIONS re 704 MOTION to Intervene and to Amend the Complaint, respectfully recommending that plaintiffs' motion for leave to intervene and to file a Fourth Amended Complaint be granted. Objections to R&R due by 7/19/2010. Ordered by Chief Magistrate Steven M. Gold on 6/30/2010. (O'Connor, Erin) (Entered: 06/30/2010)
716 Consent MOTION for Extension of Time to File Objections to the Report & Recommendation by John Ashcroft, Joseph Cuciti, Dennis Hasty, Salvatore LoPresti, Robert Mueller, James Sherman, Michael Zenk, James W. Ziglar. (Martinez, Michael) (Entered: 07/13/2010)
ORDER granting 716 Motion for Extension of Time to File. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/13/2010. (Vasquez, Lea) (Entered: 07/13/2010)
717 OBJECTION to 714 Report and Recommendations (on behalf of remaining individual defendants) filed by John Ashcroft. (Attachments: # 1 Exhibit A) (Barghaan, Dennis) (Entered: 07/21/2010)
718 REPLY in Opposition re 717 Objection to Report and Recommendations filed by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen. (Attachments: # 1 Exhibit 1) (Meeropol, Rachel) (Entered: 08/04/2010)
719 AFFIDAVIT/AFFIRMATION re 718 Reply in Opposition, Certificate of Service by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 08/04/2010)
720 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6−22−10, before Judge Gold. Court Reporter/Transcriber silverman, Telephone number 7186132537. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/30/2010. Redacted Transcript Deadline set for 9/9/2010. Release of Transcript Restriction set for 11/8/2010. (Silverman, Shelly) (Entered: 08/09/2010)
721 REPLY in Support of Objections to Report and Recommendation filed by John Ashcroft. (Barghaan, Dennis) (Entered: 08/11/2010)
722 MOTION for Leave to Appear Pro Hac Vice Pro Hac Vice by David E. Bell Filing fee $ 25, receipt number 0207−4315797. by Dennis Hasty. (Attachments: # 1 Exhibit A) (Bell, David) (Entered: 08/17/2010)
ORDER granting David E. Bell's 722 Motion for Leave to Appear Pro Hac Vice for defendant Dennis Hasty. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/17/2010. (Vasquez, Lea) (Entered: 08/17/2010)
723 NOTICE of Appearance by Joanne Sum−Ping on behalf of Shakir Baloch, Yasser Ebrahim, Ashraf Ibrahim, Hany Ibrahim, Syed Amjad Ali Jaffri, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen, akhil sachdeva (aty to be noticed) (Sum−Ping, Joanne) (Entered: 08/19/2010)
724 ORDER: Please see the attached order granting the motion for leave to intervene and to file a Fourth Amended Complaint, 704 , upon the recommendation of Magistrate Judge Gold, 714 . Ordered by Judge John Gleeson on 8/26/2010. (Reddy, Anitha) (Entered: 08/26/2010)
725 NOTICE of Change of Firm and address by Michael Winger (Winger, Michael) (Entered: 08/27/2010)
726 AMENDED COMPLAINT (Fourth Amended Complaint) against John Ashcroft, Joseph Cuciti, Dennis Hasty, Salvatore LoPresti, Robert Mueller, James Sherman, Michael Zenk, James W. Ziglar, filed by Ahmer Abbasi, Benamar Benatta, Purna Bajracharya, Saeed Hammouda, Ibrahim Turkmen, Ahmed Khalifa, Akil Sachveda, Anser Mehmood. (Attachments: # 1 Certificate of Service) (Meeropol, Rachel) (Entered: 09/13/2010)

09/15/2010 09/21/2010 09/27/2010 09/28/2010 09/29/2010
10/05/2010 10/05/2010
10/06/2010 10/06/2010 10/08/2010 10/11/2010 10/12/2010
10/20/2010

727 Letter MOTION to Withdraw as Attorney (Attorney: Larry Lee Gregg) by John Ashcroft. (Barghaan, Dennis) (Entered: 09/15/2010)
ORDER granting 727 Motion to Withdraw as Attorney. Attorney Larry L Gregg terminated. Ordered by Chief Magistrate Steven M. Gold on 9/21/2010. (O'Connor, Erin) (Entered: 09/21/2010)
728 Letter MOTION for pre motion conference (Request for Entry of Briefing Schedule for Motions to Dismiss) by John Ashcroft. (Barghaan, Dennis) (Entered: 09/27/2010)
729 MOTION to Withdraw as Attorney by Joseph Cuciti. (Attachments: # 1 Exhibit A) (Wolin, Jerold) (Entered: 09/28/2010)
ORDER granting 728 Motion for Pre Motion Conference: ORDER: The court adopts the briefing schedule set out in Defendants' letter of September 27, 2010 (#728). Defendants' motions to dismiss and supporting memoranda to be filed on November 5, 2010; Plaintiffs' opposition memoranda to be filed on December 23, 2010; Defendants' reply memoranda to be filed on January 12, 2011. Oral argument is scheduled for February 10, 2011, at 10:30 am. Ordered by Judge John Gleeson on 9/29/2010. (Glaser, Miriam) (Entered: 09/29/2010)
730 Letter to Judge Gleeson regarding scope of Defendants' motions to dismiss by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 10/05/2010)
ORDER deferring ruling on 729 Motion to Withdraw as Attorney: This application will be discussed at a conference to be held at 2:00 p.m. on October 19th. Counsel for plaintiff may appear by phone. Joseph Cuciti is directed to attend the conference in person or, upon prior application and a demonstration of hardship, by telephone. Counsel for defendant shall promptly serve a copy of this Order on defendant Cuciti and file proof of service with the Court. So Ordered by Chief Magistrate Steven M. Gold on 10/5/2010. (Vasquez, Lea) (Entered: 10/05/2010)
731 CERTIFICATE OF SERVICE by Joseph Cuciti re Order on Motion to Withdraw as Attorney,, (Wolin, Jerold) (Entered: 10/06/2010)
ORDER: Defendants are hereby ORDERED to respond in writing to Plaintiffs' letter dated October 5, 2010 (#730). Defendants' response shall be filed no later than 5:00 PM on Friday, October 8, 2010. Ordered by Judge John Gleeson on 10/6/2010. (Glaser, Miriam) (Entered: 10/06/2010)
732 Letter in Opposition to Plaintiffs' Application for Order Regarding Scope of Defendants' Motions to Dismiss (on behalf of all remaning individual−capacity defendants) by John Ashcroft (Barghaan, Dennis) (Entered: 10/08/2010)
733 Letter in further support of Plaintiffs' request to limit the scope of Defendants' motion by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 10/11/2010)
ORDER re 730 Letter filed by Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Ahmer Abbasi, Ibrahim Turkmen, Purna Bajracharya, Akil Sachveda, Anser Mehmood: Plaintiffs' application for an order specifying the scope of defendants' motions to dismiss the Fourth Amended Complaint is DENIED. Ordered by Judge John Gleeson on 10/12/2010. (Glaser, Miriam) (Entered: 10/12/2010)
Minute Order for proceedings held before Chief Magistrate Judge Steven M. Gold:granting 729 Motion to Withdraw as Attorney. Attorney Alan E. Wolin and Jerold D. Wolin terminated; Motion Hearing held on 10/19/2010 re 729 MOTION to Withdraw as Attorney filed by Joseph Cuciti.Meerepol for plaintiffs, Barghaan for Ashcroft, Wolin for Cuciti. Mr. Cuciti is present as well.Mr. Wolin's motion to be relieved as counsel for Mr. Cuciti is granted. Mr. Wolin will provide all counsel with Mr. Cuciti's mailing address, and all counsel for other parties will serve Mr. Cuciti by mail at that address with all submissions filed electronically with the court. Mr. Wolin will also provide Mr. Cuciti with a copy of this minute entry, and plaintiffs will serve Mr. Cuciti by mail with all further orders and minute entries entered by the Court. Mr. Cuciti's time to answer or move to dismiss the Fourth Amended Complaint is extended

10/21/2010 10/25/2010
11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/12/2010 11/24/2010 11/27/2010 12/09/2010
12/14/2010

to one week after the represented defendants file their anticipated motion to dismiss (the schedule now in effect, which counsel suggest may be adjourned, calls for represented defendants to file their motion on November 5, with the result that Mr. Cuciti's time to answer or move would expire on November 12). (Tape #FTR 2:09 − 2:19.) (Vasquez, Lea) (Entered: 10/20/2010)
734 Consent MOTION for Extension of Time to File Motions to Dismiss by John Ashcroft. (Barghaan, Dennis) (Entered: 10/21/2010)
ORDER re 734 Consent MOTION for Extension of Time to File Motions to Dismiss filed by John Ashcroft: Defendants' request for a one−week enlargement of the schedule to file their motions to dismiss and related memoranda is GRANTED. Defendants' motions and supporting materials shall be filed on or before November 12, 2010. Defendant Cuciti shall file his motion and supporting materials on or before November 19, 2010. All other dates currently scheduled shall remain the same. Counsel for plaintiffs is reminded to serve this order by mail on defendant Cuciti, as ordered by Magistrate Judge Gold on October 20, 2010. Ordered by Judge John Gleeson on 10/25/2010. (Glaser, Miriam) (Entered: 10/25/2010)
735 MOTION to Dismiss Fourth Amended Complaint by John Ashcroft. Responses due by 12/23/2010 (Barghaan, Dennis) (Entered: 11/12/2010)
736 MEMORANDUM in Support re 735 MOTION to Dismiss Fourth Amended Complaint filed by John Ashcroft. (Barghaan, Dennis) (Entered: 11/12/2010)
737 MOTION to Dismiss Fourth Amended Complaint by James W. Ziglar. (McDaniel, William) (Entered: 11/12/2010)
738 MEMORANDUM in Support re 737 MOTION to Dismiss Fourth Amended Complaint filed by James W. Ziglar. (McDaniel, William) (Entered: 11/12/2010)
739 MOTION to Dismiss Joining Defenant Ashcroft's Motion and Memorandum by Robert Mueller. (Lawrence, R.) (Entered: 11/12/2010)
740 MOTION to Dismiss Plaintiffs' Fourth Amended Complaint by James Sherman. Responses due by 12/23/2011 (Attachments: # 1 Memorandum in Support) (Roth, Debra) (Entered: 11/12/2010)
741 MOTION to Dismiss the Fourth Amended Complaint by Michael Zenk. (Brett, Kirk) (Entered: 11/12/2010)
742 MEMORANDUM in Support of Motion to Dismiss the Fourth Amended Complaint filed by Michael Zenk. (Brett, Kirk) (Entered: 11/12/2010)
743 MOTION to Dismiss Fourth Amended Complaint by Dennis Hasty. Responses due by 12/23/2010 (Bell, David) (Entered: 11/12/2010)
744 MEMORANDUM in Support re 743 MOTION to Dismiss Fourth Amended Complaint filed by Dennis Hasty. (Bell, David) (Entered: 11/12/2010)
745 MOTION to Dismiss Fourth Amended Complaint by Salvatore LoPresti. Responses due by 12/23/2010 (Attachments: # 1 Memorandum in Support) (Keefe, James) (Entered: 11/12/2010)
746 MOTION to Dismiss; filed by pro se Joseph Cuciti, dated 11/19/2010. (Latka−Mucha, Wieslawa) (Entered: 11/24/2010)
747 NOTICE of Change of Mailing Address by James J. Keefe Attorney for Defendant LoPresti (Keefe, James) (Entered: 11/27/2010)
748 MOTION for Leave to File Excess Pages and consolidated opposition to Motions to Dismiss by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen. (Meeropol, Rachel) (Entered: 12/09/2010)
ORDER granting 748 Motion for Leave to File Excess Pages: Plaintiffs' motion for leave to file excess pages is GRANTED. Ordered by Judge John Gleeson on 12/14/2010. (Glaser, Miriam) (Entered: 12/14/2010)

12/23/2010
01/06/2011 01/07/2011
01/12/2011 01/12/2011 01/12/2011 01/12/2011 01/12/2011 01/12/2011 03/04/2011
03/07/2011 03/09/2011 03/11/2011

749 RESPONSE in Opposition re 745 MOTION to Dismiss Fourth Amended Complaint, 735 MOTION to Dismiss Fourth Amended Complaint, 746 MOTION to Dismiss, 737 MOTION to Dismiss Fourth Amended Complaint, 739 MOTION to Dismiss Joining Defenant Ashcroft's Motion and Memorandum, 743 MOTION to Dismiss Fourth Amended Complaint, 741 MOTION to Dismiss the Fourth Amended Complaint, 740 MOTION to Dismiss Plaintiffs' Fourth Amended Complaint filed by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen. (Attachments: # 1 Certificate of Service) (Meeropol, Rachel) (Entered: 12/23/2010)
750 Consent MOTION for Leave to File Excess Pages in Reply Briefs and to Reschedule the Oral Argument Date by John Ashcroft, Joseph Cuciti, Dennis Hasty, Salvatore LoPresti, Robert Mueller, James Sherman, Michael Zenk, James W. Ziglar. (Bell, David) (Entered: 01/06/2011)
ORDER granting 750 Motion for Leave to File Excess Pages: The defendants' motion for leave to file excess pages and for an adjournment of the scheduled oral argument is GRANTED. Defendants may submit reply briefs, where necessary, of up to 20 pages in length. Oral argument is rescheduled for Friday, March 11, 2011, at 10:00 AM in Courtroom 6C South. Ordered by Judge John Gleeson on 1/7/2011. (Glaser, Miriam) (Entered: 01/07/2011)
751 REPLY in Support re 737 MOTION to Dismiss Fourth Amended Complaint filed by James W. Ziglar. (McDaniel, William) (Entered: 01/12/2011)
752 REPLY to Response to Motion re 735 MOTION to Dismiss Fourth Amended Complaint filed by John Ashcroft. (Barghaan, Dennis) (Entered: 01/12/2011)
753 REPLY in Support re 739 MOTION to Dismiss Joining Defenant Ashcroft's Motion and Memorandum (and Joining 752 Defendant Ashcroft's Reply) filed by Robert Mueller. (Lawrence, R.) (Entered: 01/12/2011)
754 REPLY in Support re 741 MOTION to Dismiss the Fourth Amended Complaint filed by Michael Zenk. (Brett, Kirk) (Entered: 01/12/2011)
755 REPLY to Response to Motion re 740 MOTION to Dismiss Plaintiffs' Fourth Amended Complaint filed by James Sherman. (Roth, Debra) (Entered: 01/12/2011)
756 REPLY in Support re 743 MOTION to Dismiss Fourth Amended Complaint filed by Dennis Hasty. (Bell, David) (Entered: 01/12/2011)
ORDER: I have received a request from Tia Lessin, an independent documentary filmmaker, to bring a video camera into the courtroom in order to film next Friday's oral argument. Lessin "produced a television segment [in 2002] for the PBS show 'NOW with Bill Moyers' about... Anser Mehmood, and his family. As the ten year anniversary of his arrest approaches, [she] continue[s] to follow this story." Lessin has assured me that she would limit her crew to "one camera person and [her]self; [her] equipment is wireless and handheld. [She] would not bring lights or any other gear that would intrude on [the] proceedings."Lessin's letter will be docketed shortly; the relevant portions of it are quoted above. I am inclined to grant her request to film the proceedings. Any party wishing to object should file an objection in writing (via ECF) by close of business on Monday. Ordered by Judge John Gleeson on 3/4/2011. (Glaser, Miriam) (Entered: 03/04/2011)
757 Letter dated 2/28/11 from Tia Lessin to Judge Gleeson, seeking permission to bring a video camera into Your Honor's courtroom on 3/11/11. (Greene, Donna) (Entered: 03/07/2011)
ORDER re 757 Letter: The application by Tia Lessin to film the oral argument in this case, 757 , is GRANTED. Ordered by Judge John Gleeson on 3/9/2011. (Glaser, Miriam) (Entered: 03/09/2011)
758 Minute Entry for proceedings held before Judge John Gleeson: Case called. Plaintiffs represented by Rachel Anne Meeropol, Esq.; Michael Winger, Esq.; Sunita Patel, Esq.; and George Gardner, Esq. Defendants represented by Dennis C. Barghaan, Esq.; R. Craig Lawrence, Esq.; David Bell, Esq.; William McDaniel, Esq.; Joe Cuciti, ESq.; Michael Martinez, Esq.; William Quigley, Esq.; and Debra Roth, Esq. Oral Argument held on 3/11/2011 re 745 MOTION to Dismiss Fourth Amended Complaint filed by

03/17/2011
06/03/2011 06/03/2011 06/03/2011
08/11/2011 08/29/2011 08/29/2011 11/02/2011 03/28/2012 01/15/2013
01/28/2013 01/29/2013 01/29/2013 01/29/2013 01/29/2013

Salvatore LoPresti, 735 MOTION to Dismiss Fourth Amended Complaint filed by John Ashcroft, 746 MOTION to Dismiss filed by Joseph Cuciti, 737 MOTION to Dismiss Fourth Amended Complaint filed by James W. Ziglar, 739 MOTION to Dismiss Joining Defenant Ashcroft's Motion and Memorandum filed by Robert Mueller, 743 MOTION to Dismiss Fourth Amended Complaint filed by Dennis Hasty, 741 MOTION to Dismiss the Fourth Amended Complaint filed by Michael Zenk and 740 MOTION to Dismiss Plaintiffs' Fourth Amended Complaint filed by James Sherman. The Court's decision is reserved and will be filed via ECF separately. (Court Reporter Gene Rudolph.) (Lee, Ilene) (Entered: 03/11/2011)
759 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/11/11, before Judge Gleeson. Court Reporter/Transcriber G. Rudolph, Telephone number 718−613−2538. Email address: GeneRudolph@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/7/2011. Redacted Transcript Deadline set for 4/18/2011. Release of Transcript Restriction set for 6/15/2011. (Rudolph, Gene) (Entered: 03/17/2011)
760 Letter MOTION to Withdraw as Attorney for Defendant Dennis Hasty by Dennis Hasty. (Martinez, Michael) (Entered: 06/03/2011)
761 Letter MOTION to Withdraw as Attorney for Defendant Dennis Hasty by Dennis Hasty. (Martinez, Michael) (Entered: 06/03/2011)
ORDER granting 760 Motion to Withdraw as Attorney. Attorney Michael L. Martinez terminated; granting 761 Motion to Withdraw as Attorney. Attorney Michael L. Martinez terminated. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/3/2011. (Vasquez, Lea) (Entered: 06/03/2011)
762 Letter to Judge Gleeson re: supplemental authority by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 08/11/2011)
763 Letter Response to Plaintiffs' Letter of August 11, 2011 (Dkt. No. 762) by John Ashcroft (Barghaan, Dennis) (Entered: 08/29/2011)
764 Letter Response to Plaintiffs' Letter of August 11, 2011 (Dkt. No. 762) by James W. Ziglar (McDaniel, William) (Entered: 08/29/2011)
765 Letter Regarding Plaintiffs' Citation of Supplemental Authority by John Ashcroft (Barghaan, Dennis) (Entered: 11/02/2011)
766 NOTICE by Dennis Hasty of Withdrawal of Counsel (Bell, David) (Entered: 03/28/2012)
767 ORDER granting Motions to Dismiss by 735 John Ashcroft, 737 James W. Ziglar, and 739 Robert Mueller in their entirety; and ORDER granting in part and denying in part Motions to Dismiss by 740 James Sherman, 741 Michael Zenk, 743 Dennis Hasty, 745 Salvatore LoPresti, and 746 Joseph Cuciti. Ordered by Judge John Gleeson on 1/15/2013. (O'Reilly, Helen) (Entered: 01/15/2013)
768 NOTICE of Appearance by Hugh Sandler on behalf of Dennis Hasty (aty to be noticed) (Sandler, Hugh) (Entered: 01/28/2013)
769 NOTICE of Appearance by Justin Vaun Shur on behalf of James Sherman (aty to be noticed) (Shur, Justin) (Entered: 01/29/2013)
770 MOTION for Leave to Appear Pro Hac Vice Jeffrey A. Lamken Filing fee $ 25, receipt number 0207−5977292. by James Sherman. (Shur, Justin) (Entered: 01/29/2013)
771 MOTION for Leave to Appear Pro Hac Vice Julia H. Perkins Filing fee $ 25, receipt number 0207−5977348. by James Sherman. (Shur, Justin) (Entered: 01/29/2013)
772 Letter MOTION for Extension of Time to File Answer re 726 Amended Complaint, [on behalf of all remaining defendants] by Dennis Hasty. (Lahlou, Shari) (Entered: 01/29/2013)

01/29/2013 01/30/2013 01/30/2013
02/20/2013 02/21/2013 02/22/2013
03/06/2013 03/07/2013 03/07/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/17/2013

ORDER granting 772 Motion for Extension of Time to Answer Dennis Hasty answer due 3/15/2013; James Sherman answer due 3/15/2013; Michael Zenk answer due 3/15/2013. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/29/2013. (Megdal, Deborah) (Entered: 01/29/2013)
ORDER granting 770 Motion for Leave to Appear Pro Hac Vice ; granting 771 Motion for Leave to Appear Pro Hac Vice. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/30/2013. (Vasquez, Lea) (Entered: 01/30/2013)
773 Minute Entry for Status Conference held on 1/30/2013 before Chief Magistrate Judge Steven M. Gold: Meeropol et al for plaintiffs; Lahlou for Hasty; Roth er al. for Sherman; Klein for Zenk; Keefe for LoPresti; Cuciti, defendant pro se. Defendants' time to answer is extended to March 15. The parties will confer on a case management plan that will be implemented unless a party takes an interlocutory appeal. The proposed case management plan will be submitted to the Court by February 22, and will propose an approximate date for a conference at the first point the parties agree it would be productive to hold one. (Tape #FTR 2:06−2:25.) (Vasquez, Lea) (Entered: 01/30/2013)
774 Consent MOTION for Extension of Time to File Proposed Case Management Plan by Dennis Hasty. (Lahlou, Shari) (Entered: 02/20/2013)
ORDER granting 774 Motion for Extension of Time to March 8, 2013 to File proposed case management schedule. So Ordered by Chief Magistrate Judge Steven M. Gold on 2/21/2013. (Vasquez, Lea) (Entered: 02/21/2013)
775 TRANSCRIPT of Proceedings held on January 30, 2013, before Judge Gold. Court Transcriber: Fiore Reporting and Transcription Service, Inc., Telephone number (203)929−9992. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/15/2013. Redacted Transcript Deadline set for 3/25/2013. Release of Transcript Restriction set for 5/23/2013. (Rocco, Christine) (Entered: 02/22/2013)
776 Consent MOTION for Extension of Time to File Case Management Plan by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood. (Winger, Michael) Modified on 3/7/2013 to reflect that motion is requesting additional time(Vasquez, Lea). (Entered: 03/06/2013)
ORDER granting 776 Motion for Extension of Time to File. The case management plan or an updated status report is to be filed by June 14th. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/7/2013. (Vasquez, Lea) (Entered: 03/07/2013)
777 NOTICE of Appearance by Julia H. Perkins on behalf of James Sherman (aty to be noticed) (Perkins, Julia) (Entered: 03/07/2013)
778 NOTICE OF APPEAL as to 767 Order on Motion to Dismiss, by Dennis Hasty. Filing fee $ 455, receipt number 0207−6072355. Service done electronically. (Lahlou, Shari) Modified on 3/15/2013 to reflect service. (McGee, Mary Ann). (Entered: 03/15/2013)
Electronic Index to Record on Appeal sent to US Court of Appeals. 778 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 03/15/2013)
779 NOTICE OF APPEAL as to 767 Order on Motion to Dismiss, by James Sherman. No fee paid. Attorney notified. Service done electronically. (Shur, Justin) Modified on 3/18/2013 to reflect service and fee status.(McGee, Mary Ann). (Entered: 03/15/2013)
780 NOTICE OF APPEAL as to 767 Order on Motion to Dismiss, by Michael Zenk. Filing fee $ 455, receipt number 0207−6073001. Service done electronically. (Klein, Joshua) Modified on 3/18/2013 to reflect service.(McGee, Mary Ann). (Entered: 03/15/2013)
781 NOTICE OF APPEAL 767 by Salvatore LoPresti. No fee paid. Attorney notified of fee. Service done electronically. (Keefe, James) Modified on 3/18/2013 (McGee, Mary Ann). (Entered: 03/17/2013)

03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 03/19/2013 03/19/2013 03/20/2013
03/21/2013
03/29/2013 03/29/2013 04/01/2013 04/08/2013
04/11/2013
04/12/2013

APPEAL FILING FEE DUE re 779 Notice of Appeal Please either come to the clerks office or mail the filing fee in the amount of $455.00. (McGee, Mary Ann) (Entered: 03/18/2013)
First Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 779 Notice of Appeal (McGee, Mary Ann) (Entered: 03/18/2013)
Second Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 780 Notice of Appeal (McGee, Mary Ann) (Entered: 03/18/2013)
APPEAL FILING FEE DUE re 781 Notice of Appeal Please either come to the clerks office or mail the filing fee in the amount of $455.00. (McGee, Mary Ann) (Entered: 03/18/2013)
Third Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 781 Notice of Appeal (McGee, Mary Ann) (Entered: 03/18/2013)
782 CERTIFICATE OF SERVICE by Dennis Hasty re 778 Notice of Appeal (service by regular mail effected upon defendant Joseph Cuciti) (Lahlou, Shari) (Entered: 03/18/2013)
783 USCA Appeal Fees received $ 455.00 receipt number 4653056426 re 779 Notice of Appeal filed by James Sherman (McGee, Mary Ann) (Entered: 03/19/2013)
Fourth Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 779 Notice of Appeal 783 USCA Fee Paid (McGee, Mary Ann) (Entered: 03/19/2013)
784 MOTION for Entry of Judgment under Rule 54(b) by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood. (Attachments: # 1 Memorandum in Support of Rule 54(b) certification, # 2 Certificate of Service) (Meeropol, Rachel) (Entered: 03/20/2013)
ORDER. Defendants John Ashcroft, Robert Mueller and William Ziglar are directed to respond to Plaintiffs' 784 Motion for an order pursuant to Fed. R. Civ. P 54(b). Response due on or before March 29, 2013. Ordered by Judge John Gleeson on 3/21/2013. (O'Reilly, Helen) (Entered: 03/21/2013)
785 NOTICE by John Ashcroft, Robert Mueller re 784 MOTION for Entry of Judgment under Rule 54(b) (Barghaan, Dennis) (Entered: 03/29/2013)
786 NOTICE by James W. Ziglar re 784 MOTION for Entry of Judgment under Rule 54(b) Opposition (McDaniel, William) (Entered: 03/29/2013)
787 NOTICE of Change of Firm Address by Joshua C. Klein (Klein, Joshua) (Entered: 04/01/2013)
ORDER granting in part and denying in part 784 Motion for Entry of Judgment under Rule 54(b). At the parties' mutual agreement and having determined that there is no just reason for delay, the Clerk of Court is respectfully directed to enter final judgment pursuant to Fed. R. Civ. P. 54(b) dismissing Claims One, Two, Three, and Seven against Defendants John Ashcroft, Robert Mueller and William Ziglar. Plaintiffs' motion for entry of judgment dismissing Claim Six is denied, as Defendants Ashcroft, Mueller, and Ziglar are not named as defendants in Claim Six. Ordered by Judge John Gleeson on 4/8/2013. (O'Reilly, Helen) (Entered: 04/08/2013)
788 CLERK'S JUDGMENT, Pltff's motion for entry of judgment under Rule 54(b) is granted to the extent that final judgment is entered pursuant to FRCP 54(b) dismissing Claims One, Two, Three and Seven against Defendants John Ashcroft, Robert Mueller and William Ziglar.. Ordered by Janet Hamilton, Deputy Clerk, on 4/10/2013. (Piper, Francine) (Entered: 04/11/2013)
789 DUPLICATE NOTICE OF APPEAL 767 Order by Salvatore LoPresti. Filing fee $ 455, receipt number 0207−6130382. Service done electronically. (Keefe, James) (McGee, Mary Ann).PLEASE NOTE: Attorney mistakenly used wrong event (NOA) to indicate payment of filing fee. This Notice of Appeal is a duplicate and, was edited to reflect this. Initial Notice of Appeal filed 3/17/13, (see document #781), was electronically transmitted to the USCA. 4/15/2013 (McGee, Mary Ann). (Entered: 04/12/2013)

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USCA Appeal Fees received $ 455 receipt number 0207−6130382. re 789 Duplicate Notice of Appeal, filed by Salvatore LoPresti, 781 Notice of Appeal filed by Salvatore LoPresti (McGee, Mary Ann) (Entered: 04/15/2013)
Fifth Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 789 Duplicate Notice of Appeal which reflects receipt # for filing fee. See also USCA fee of 4/12/13. (McGee, Mary Ann) (Entered: 04/15/2013)
790 NOTICE OF APPEAL as to 767 Order on Motion to Dismiss, by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood. Filing fee $ 455, receipt number 0207−6154559. Appeal Record due by 5/8/2013. (Meeropol, Rachel) (Entered: 04/24/2013)
Sixth Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 790 Notice of Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 04/24/2013)
791 Subsequent/Amended NOTICE OF APPEAL 790 as to 767 Order by Akil Sachveda and Ibrahim Turkmen. No fee for Amended Appeal. Service done electronically. This Amended Notice of Appeal is being filed to include Appellants Akil Sachveda and Ibrahim Turkman. Please note: This Amended Notice of Appeal is being filed by the Appeals Clerk on behalf of attorney Rachel Meeropol due to technical difficulties with her ECF Service. (McGee, Mary Ann) (Entered: 04/24/2013)
Seventh Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. 791 Subsequent Notice of Appeal, (McGee, Mary Ann) (Entered: 04/24/2013)
792 STATUS REPORT Joined by Four Defendants by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Ibrahim Turkmen (Meeropol, Rachel) (Entered: 06/13/2013)
793 Letter Joining in Status Report by Salvatore LoPresti (Keefe, James) (Entered: 06/13/2013)
ORDER re 792 Status Report filed by Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Ahmer Abbasi, Ibrahim Turkmen, Purna Bajracharya, Akil Sachveda, Anser Mehmood, 793 Letter filed by Salvatore LoPresti: The parties shall advise the Court once all pending appeals are resolved or at any earlier time that they believe a case management conference would be productive. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/17/2013. (Vasquez, Lea) (Entered: 06/17/2013)
Case Reassigned to Judge Dora Lizette Irizarry. Judge John Gleeson no longer assigned to the case.Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Mahoney, Brenna) (Entered: 03/10/2016)
794 Copy of Electronic notification dtd. 3/15 re: case reassignment from Judge Gleeson to Judge Dora L. Irizarry sent to William Beck−returned as Undeliverable w/Notation: "Return To Sender." (Layne, Monique) (Entered: 04/01/2016)
795 ORDER of USCA as to 789 Notice of Appeal, filed by Salvatore LoPresti, 778 Notice of Appeal filed by Dennis Hasty, 790 Notice of Appeal, filed by Purna Bajracharya, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Ahmer Abbasi, Anser Mehmood, 780 Notice of Appeal filed by Michael Zenk, 779 Notice of Appeal filed by James Sherman, 781 Notice of Appeal filed by Salvatore LoPresti, 791 Subsequent Notice of Appeal, filed by Akil Sachveda, Ibrahim Turkmen. In light of the Supreme Courts decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), reversing in substantial part our prior judgment in this case, Turkmen v. Hasty, 789 F.3d 218, it is hereby ORDERED that this case be remanded to the District Court for further consideration. That court should consider what remains of all claims in light of the Ziglar decision. We emphasize in particular that the Supreme Court left open the question as to whether a Bivens claim may be brought under the Fifth Amendment against the warden of the Metropolitan Detention Center. Ziglar, 137 S. Ct. at 1863−66. Certified Copy Issued: 9/14/17. USCA #13−981, 13−1002, 13−1003, 13−1662. (McGee, Mary

11/27/2017 11/27/2017 11/28/2017 11/30/2017 12/01/2017 12/01/2017
12/01/2017 12/01/2017 12/05/2017 12/05/2017
12/05/2017

Ann) . (Entered: 09/14/2017)
796 Letter regarding briefing schedule by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 11/27/2017)
ORDER re 796 Letter filed by Purna Bajracharya, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Ahmer Abbasi, Anser Mehmood −− The proposed briefing schedule is approved and adopted. Counsel are reminded to comply with the Court's "bundle" rule and to a complete set of hard courtesy copies to chambers promptly. So Ordered by Chief Judge Dora Lizette Irizarry on 11/27/2017. (Carosella, Christy) (Entered: 11/27/2017)
SCHEDULING ORDER: A telephone conference will be held at 3:30 p.m. on December 6, 2017 before the undersigned. Counsel for all parties must participate. Counsel for plaintiff is directed to arrange the call with all parties on the line, then call chambers at 718−613−2560. Ordered by Magistrate Judge Steven M. Gold on 11/28/2017. (Gillespie, Saudia) (Entered: 11/28/2017)
797 NOTICE of Appearance by Joanne Rose Oleksyk on behalf of Dennis Hasty (aty to be noticed) (Oleksyk, Joanne) (Counsel contacted the Court via telephone requesting redaction of pro se defendant Joseph Cuciti's contact information. Main Document 797 replaced on 11/30/2017 ) (Gillespie, Saudia). Modified on 11/30/2017 (Gillespie, Saudia). (Entered: 11/30/2017)
798 Letter MOTION to Withdraw as Attorney Requesting Termination of the Appearances of Justin P. Murphy, Hugh Sandler, Matthew Scarlato and Kyler Smart by Dennis Hasty. (Lahlou, Shari) (Entered: 12/01/2017)
799 MANDATE of USCA as to 778 Notice of Appeal filed by Dennis Hasty, 790 Notice of Appeal, filed by Purna Bajracharya, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, Ahmer Abbasi, Anser Mehmood, 780 Notice of Appeal filed by Michael Zenk, 781 Notice of Appeal filed by Salvatore LoPresti In light of the Supreme Courts decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), reversing in substantial part our prior judgment in this case, Turkmen v. Hasty, 789 F.3d 218, it is hereby ORDERED that this case be remanded to the District Court for further consideration. That court should consider what remains of all claims in light of the Ziglar decision. We emphasize in particular that the Supreme Court left open the question as to whether a Bivens claim may be brought under the Fifth Amendment against the warden of the Metropolitan Detention Center. Ziglar, 137 S. Ct. at 1863−66.Issued as Mandate: `11/15/17 USCA #13−981, 13−1002, 13−1003, 13−1662. (McGee, Mary Ann) (Entered: 12/01/2017)
ORDER: Granting 798 Motion to Withdraw as Attorney. Attorney Matthew Scarlato; Kyler Smart; Justin P. Murphy and Hugh Sandler terminated. Ordered by Magistrate Judge Steven M. Gold on 12/1/2017. (Gillespie, Saudia) (Entered: 12/01/2017)
801 NOTICE of Change of Address by William Alden McDaniel, Jr. on behalf of deft. James W. Ziglar. Attorney's contact information updated. (Layne, Monique) (Entered: 12/05/2017)
800 MOTION for Leave to Appear Pro Hac Vice of Clifton S. Elgarten. Filing fee $ 150, receipt number 0207−10024903. by Dennis Hasty. (Attachments: # 1 Elgarten affidavit in support of his pro hac vice motion., # 2 Ex. A to Elgarten affidavit., # 3 Certificate of Service) (Elgarten, Clifton) (Entered: 12/05/2017)
ORDER: Granting 800 Motion for Leave to Appear Pro Hac Vice. Attorney Clifton S. Elgarten shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the 150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee . Ordered by Magistrate Judge Steven M. Gold on 12/5/2017. (Gillespie, Saudia) (Entered: 12/05/2017)
802 NOTICE of Appearance by Clifton Elgarten on behalf of Dennis Hasty (notification declined or already on case) (Elgarten, Clifton) (Entered: 12/05/2017)

12/06/2017
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01/22/2018
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803 Minute Entry: Initial Conference Hearing held on 12/6/2017 before Magistrate Judge Steven M. Gold. Meeropol for plaintiffs, Elgarten for Hasty, Keefe for LoPresti. The parties will follow the briefing schedule set forth in plaintiffs' letter dated November 27, 2017, Docket Entry 796. All remaining defendants who wish to be heard with respect to the open question on remand, including defendant pro se Cuciti, must submit memoranda of law pursuant to that schedule. Plaintiffs shall serve a copy of their letter of November 27, together with a copy of this minute entry, on pro se defendant Cuciti at his last known address and file proof of service with the Court. Counsel are encouraged to discuss the possibility of mediation and advise the Court if they seek a settlement conference. (FTR Log #3:34−3:43.) (Gillespie, Saudia) (Entered: 12/07/2017)
804 AFFIDAVIT/AFFIRMATION of Service by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 12/08/2017)
805 NOTICE of Change of Address of Joseph Cuciti per USPS by Joanne Rose Oleksyk (Oleksyk, Joanne) (Entered: 12/11/2017)
806 AFFIDAVIT/AFFIRMATION of Service by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 12/13/2017)
807 NOTICE of Appearance by Alexander A. Reinert on behalf of All Plaintiffs (aty to be noticed) (Reinert, Alexander) (Entered: 01/17/2018)
808 Fully Briefed MOTION to Dismiss Defendant Dennis Hastys Memorandum Addressing The Bivens Question Remanded by The Supreme Court of the United States. by Dennis Hasty. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Memorandum in Support Plaintiffs Memorandum of Law In Support of Bivens Liability., # 8 Defendant Dennis Hastys Response Memorandum Addressing The Bivens Question Remanded by The Supreme Court of the United States., # 9 Plaintiffs Response Brief In Support of Bivens Liability,, # 10 Certificate of Service) (Elgarten, Clifton) (Entered: 01/19/2018)
ORDER REFERRING MOTION: 808 Fully Briefed MOTION to Dismiss Defendant Dennis Hastys Memorandum Addressing The Bivens Question Remanded by The Supreme Court of the United States. filed by Dennis Hasty −− This motion is referred to Magistrate Judge Steven M. Gold for preparation of a Report and Recommendations. So Ordered by Chief Judge Dora Lizette Irizarry on 1/22/2018. (Carosella, Christy) (Entered: 01/22/2018)
810 Letter requesting pre−motion conference by James Sherman (Roth, Debra) (Entered: 01/23/2018)
ORDER re 810 Letter filed by James Sherman −− This request−−and any resulting motion−−is referred to Magistrate Judge Gold, consistent with the referral of the motion files at docket entry 808 . So Ordered by Chief Judge Dora Lizette Irizarry on 1/23/2018. (Carosella, Christy) (Entered: 01/23/2018)
ORDER: Any responses to 810 letter requesting a pre motion conference, shall be submitted by February 9, 2018. Ordered by Magistrate Judge Steven M. Gold on 1/24/2018. (Gillespie, Saudia) (Entered: 01/24/2018)
811 CERTIFICATE OF SERVICE by James Sherman re 810 Letter (Roth, Debra) (Entered: 01/25/2018)
812 Letter Requesting Pre−Motion Conference by John Ashcroft (Barghaan, Dennis) (Entered: 01/29/2018)
SCHEDULING ORDER: A telephone conference will be held at 12:00 p.m. on February 6, 2018. All counsel for any party, and all parties without counsel, must participate. Counsel for plaintiffs is directed to arrange the call with all parties on the line, then call chambers at 718−613−2560. During the call, the Court expects to address the following issues: (1) the applications for premotion conferences filed by defendants Sherman and Ziglar, Docket Entry 810 , and by defendants Ashcroft and Mueller, Docket Entry 812 ; (2) to schedule oral argument on defendant Hasty's renewed Motion to Dismiss, Docket Entry 808 , if the parties seek it; and (3) to discuss

01/30/2018 01/30/2018 02/05/2018 02/06/2018
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how plaintiffs and defendants LoPresti and Cuciti intended to proceed with the case. Plaintiffs shall serve a copy of this scheduling order on the pro se defendants at their last known addresses and file proof of service with the Court. Ordered by Magistrate Judge Steven M. Gold on 1/29/2018. (Recca, Vincent) (Entered: 01/29/2018)
ORDER re 812 Letter filed by John Ashcroft −− This request−−and any resulting motion−−is referred to Magistrate Judge Gold, consistent with the referral of the motion files at docket entry 808 . So Ordered by Chief Judge Dora Lizette Irizarry on 1/30/2018. (Carosella, Christy) (Entered: 01/30/2018)
813 AFFIDAVIT/AFFIRMATION of Service by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Kadidal, Shayana) (Entered: 01/30/2018)
814 NOTICE by Dennis Hasty of Supplemental Authority [re ECF doc. #808]. (Attachments: # 1 Exhibit to Notice of Supplemental Authority;, # 2 Certificate of Service) (Elgarten, Clifton) (Entered: 02/05/2018)
815 Minute Entry: Telephone Conference held on 2/6/2018 before Magistrate Judge Steven M. Gold. Meeropol for plaintiffs, Barghaan for Ashcroft, Lawrence for Mueller, McDaniel for Ziglar, Roth and Perkins for Sherman, Elgarten for Hasty, Keefe for LoPresti, Tolchin for interveonors. (1) Plaintiffs and those defendants who plaintiffs agree should be dismissed will submit a proposed stipulation of dismissal by February 20. (2) Plaintiffs and defendant Hasty may submit a letter brief supplement to the pending motions on or before February 26, 2018. If defendants LoPrestiy or Cuciti seek to move to dismiss, they shall agree upon a briefing schedule with counsel for plaintiffs and promptly advise the Court. These defendants may incorporate the arguments made by defendant Hasty by reference, but should also address any additional issues of fact law pertaining in particular to themselves. (3) THE COURT WILL HEAR ORAL ARGUMENT ON DEFENDANT HASTY'S PENDING MOTION TO DISMISS, AND ON ANY MOTIONS THAT MAY BE BROUGHT BY LOPRESTI AND CUCITI IF THEY ARE FULLY BRIEFED BY THEN, ON MARCH 7, 2018 AT 4:00 PM. (FTR Log #12:08−12:45.) (Gillespie, Saudia) (Entered: 02/07/2018)
816 TRANSCRIPT of Proceedings held on February 6, 2018, before Judge GOLD. Court Reporter/Transcriber Transcriptions Plus II, Inc.. Email address: laferrara44@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 3/1/2018. Redacted Transcript Deadline set for 3/12/2018. Release of Transcript Restriction set for 5/9/2018. (Hong, Loan) (Entered: 02/08/2018)
817 Letter to Judge Gold re: Scheduling of LoPresti Motion to Dismiss by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 02/13/2018)
ORDER: The schedule proposed by the parties in plaintiffs' letter dated February 13, 2018, Docket Entry 817, is approved. Defendant LoPresti may file his motion t dismiss on or before February 19, 2018. Plaintiffs may submit a single memorandum of law responsive to LoPresti's motion and Hasty's submission on or before February 26, 2018. The oral argument scheduled for March 7, 2018 at 4:00 p.m. will proceed as scheduled. Ordered by Magistrate Judge Steven M. Gold on 2/13/2018. (Gillespie, Saudia) (Entered: 02/13/2018)
818 MEMORANDUM in Support re 808 Fully Briefed MOTION to Dismiss Defendant Dennis Hastys Memorandum Addressing The Bivens Question Remanded by The Supreme Court of the United States. By leave of Court filed by Salvatore LoPresti. (Keefe, James) (Entered: 02/19/2018)
819 STIPULATION of Dismissal & For Entry of Final Judgment (Joint) by John Ashcroft (Attachments: # 1 Consent Judgment) (Barghaan, Dennis) (Entered: 02/20/2018)
820 Letter to Judge Gold re: Administrative Closure of Certain Claims by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser

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02/26/2018 02/27/2018
03/07/2018

Mehmood (Meeropol, Rachel) (Entered: 02/20/2018)
821 NOTICE of Appearance by James J. Keefe on behalf of Joseph Cuciti (notification declined or already on case) (Keefe, James) (Entered: 02/22/2018)
822 NOTICE of Change of Address Telephone and Email by James J. Keefe Attorney for LoPresti and Cuciti (Keefe, James) (Entered: 02/22/2018)
823 MEMORANDUM in Opposition re 808 Fully Briefed MOTION to Dismiss Defendant Dennis Hastys Memorandum Addressing The Bivens Question Remanded by The Supreme Court of the United States. Supplemental Brief in Support of Bivens Liability filed by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood. (Meeropol, Rachel) (Entered: 02/26/2018)
824 Letter −brief supplement to the pending renewed motion to dismiss [as permitted by M/J Gold; see ECF #815] by Dennis Hasty (Elgarten, Clifton) (Entered: 02/26/2018)
825 Consent Judgment −− Individual defendants John Ashcroft, Robert Mueller, James Ziglar, James Sherman, and Michael Zenk are dismissed. The balance of claims remain referred to the magistrate judge, pursuant to the referral order dated January 22, 2018. Ordered by Chief Judge Dora Lizette Irizarry on 2/27/2018. (Carosella, Christy) (Entered: 02/27/2018)
SCHEDULING ORDER: The oral argument previously scheduled for today, March 7, 2018 at 4:00 P.M. is hereby adjourned to Thursday, March 15 at 2:00 P.M. in Courtroom 13D−S before the undersigned.

In the wake of the adjournment of the oral argument previously scheduled for today, I take the opportunity to pose two series of questions that have arisen while preparing to hear the parties' arguments. The questions are set forth below to afford counsel an opportunity to consider their responses in advance of the oral argument. Although counsel are welcome to present their responses orally on the adjourned date, if they prefer to respond in writing as well they may do so by letter brief not to exceed four pages filed no later than March 13, 2018.

1) In its discussion of the "significant parallels" this case has to Carlson v. Green, the Supreme Court in Ziglar concluded that "even a modest extension is still an extension. And this case does seek to extend Carlson to a new context." 137 S.Ct. at 1864. The Supreme Court went on to hold that, because this case seeks to apply Bivens in a new context, a "special factors analysis" must be conducted "before allowing" the case to proceed. 137 S.Ct. at 1865. The Supreme Court appears not to have discussed whether the significant parallels between this case and Carlson remain relevant after the determination that this case seeks to extend Carlson to a new context. Is the "special factors" analysis different when the "extension" is modest rather than substantial? In other words, must the "reasons to think Congress might doubt the efficacy or necessity of a damages remedy" be more compelling or pronounced when the extension is substantial rather than modest? Or, once it is determined that the case seeks to extend Bivens to a new context, does that end the first stage of the inquiry, and is the ensuing analysis of "special factors" the same regardless of the magnitude of the extension?

2)

A) The Supreme Court in Ziglar refers to two alternative remedies&#8212a writ of habeas corpus and an injunction&#8212that might counsel against authorizing a Bivens action. 137 S.Ct. at 1865. The Court's opinion makes no reference to the FTCA as an alternative remedy, despite the assertion of claims against the MDC defendants by some plaintiffs earlier in the case under that statute. See Third Amended Complaint, Docket Entry 109, &para&para 414−17. Why is a claim brought pursuant to the FTCA not an obvious "alternative remedy" that is not only available to plaintiffs but was actually invoked by similarly situated plaintiffs? If it is an obvious alternative, why did the Supreme Court fail to list it as one together with injunctive and habeas relief?

B) Ziglar also lists "legislative action suggesting that Congress does not want a damages remedy" as a special factor. 137 S.Ct. at 1865. The FTCA explicitly states that the remedies against the United States that the statute provides are "exclusive of any other civil action or proceeding for money damages by reason of the same subject

matter against the employee" of the Government. 28 U.S.C. § 2679(b)(1). The FTCA goes on, however, to pronounce an exception to this general rule, stating that it "does not extend or apply to a civil action against an employee of the Government&#8212(A) which is brought for a violation of the Constitution of the United States." 28 U.S.C. § 2679(b)(2)(A). When was this section adopted relative to Bivens? Does this provision, by carving out an exception to the "exclusive remedy" language preceding it, suggest an indirect Congressional endorsement of actions against individual employees of the United States for violations of constitutional rights? If so, why did the Supreme Court fail to refer to Section 2679 when examining statutory intent in Ziglar?

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03/19/2018
03/29/2018 04/03/2018 04/24/2018 08/10/2018 08/13/2018
08/14/2018

Ordered by Magistrate Judge Steven M. Gold on 3/7/2018. (Recca, Vincent) (Entered: 03/07/2018)
826 Letter Brief in Response to March 7, 2018 Scheduling Order by Dennis Hasty (Elgarten, Clifton) (Entered: 03/13/2018)
827 Letter brief in opposition to motions to dismiss by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 03/13/2018)
828 Minute Entry: Motion Hearing held on 3/15/2018 before Magistrate Judge Steven M. Gold. Meeropol and Winger for plaintiffs, Elgarten for defendant Hasty, Keefe for LoPresti and Cuciti. Oral argument held on defendants' motion to dismiss plaintiffs' Fourth Amended Complaint, on remand from the Supreme Court as per its decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Decision reserved. (FTR Log #2:09−3:26; 3:45−4:56.) (Gillespie, Saudia) (Entered: 03/16/2018)
829 TRANSCRIPT of Proceedings held on March 15, 2018, before Judge GOLD. Court Reporter/Transcriber Fiore Reporting and Transcription Service, Inc., Telephone number 203−929−9992. Email address: cmfiore@sbcglobal.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request − Transcript" located under "Other Filings − Other Documents". Redaction Request due 4/9/2018. Redacted Transcript Deadline set for 4/19/2018. Release of Transcript Restriction set for 6/18/2018. (Hong, Loan) (Main Document 829 replaced on 3/27/2018) (Hong, Loan). (Entered: 03/19/2018)
830 Letter to Judge Gold re: supplemental authority by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 03/29/2018)
831 Letter to Judge Gold re: Plaintiffs' supplemental authority by Dennis Hasty (Elgarten, Clifton) (Entered: 04/03/2018)
832 NOTICE by Dennis Hasty of Supplemental Authority (Elgarten, Clifton) (Entered: 04/24/2018)
833 Letter to Judge Gold re: supplemental authority by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Anser Mehmood (Meeropol, Rachel) (Entered: 08/10/2018)
834 REPORT AND RECOMMENDATIONS re 808 Fully Briefed MOTION to Dismiss Defendant Dennis Hasty's Memorandum Addressing The Bivens Question Remanded by The Supreme Court of the United States filed by Dennis Hasty. For the reasons stated herein, I respectfully recommend that plaintiffs' remaining claims be dismissed. Any objections to the recommendations made in this Report must be submitted within fourteen days after filing of the Report and, in any event, no later than August 27, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive the right to appeal the District Court's order. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten−day limit). Ordered by Magistrate Judge Steven M. Gold on 8/13/2018. (Recca, Vincent) (Entered: 08/13/2018)
835 Letter MOTION to Withdraw as Attorney for Plaintiffs by Ahmer Abbasi, Purna Bajracharya, Shakir Baloch, Benamar Benatta, Yasser Ebrahim, Saeed Hammouda,

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10/08/2018 10/08/2018 10/16/2018 01/04/2019

Ashraf Ibrahim, Hany Ibrahim, Syed Amjad Ali Jaffri, Ahmed Khalifa, Anser Mehmood, Akil Sachveda, Asif−Ur−Rehman Saffi, Ibrahim Turkmen, akhil sachdeva. (Sum−Ping, Joanne) (Entered: 08/14/2018)
ORDER: Granting 835 Motion to Withdraw as Attorney. Attorney Joanne Sum−Ping terminated. Ordered by Magistrate Judge Steven M. Gold on 8/14/2018. (Gillespie, Saudia) (Entered: 08/14/2018)
836 Letter Seeking Extension of Time to File Objections to Magistrate Judge's Report and Recommendation by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Reinert, Alexander) (Entered: 08/14/2018)
ORDER re 836 Letter −− The request is granted. Plaintiff's objections to the Report and Recommendations are now due by September 10, 2018. So Ordered by Chief Judge Dora Lizette Irizarry on 8/15/2018. (Carosella, Christy) (Entered: 08/15/2018)
837 Letter MOTION for Extension of Time to File Objections to Magistrate Judge's Report and Recommendation by Joseph Cuciti, Dennis Hasty, Salvatore LoPresti. (Elgarten, Clifton) (Entered: 08/16/2018)
ORDER granting 837 Motion for Extension of Time to File. Ordered by Chief Judge Dora Lizette Irizarry on 8/17/2018. (Carosella, Christy) (Entered: 08/17/2018)
838 OBJECTION to 834 Report and Recommendations filed by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood. (Meeropol, Rachel) (Entered: 09/10/2018)
839 OBJECTION to 834 Report and Recommendations filed by Dennis Hasty. (Elgarten, Clifton) (Entered: 09/10/2018)
840 OBJECTION to 407 Report and Recommendations of Magistrate Judge filed by Salvatore LoPresti. (Keefe, James) (Entered: 09/10/2018)
841 Letter MOTION for Extension of Time to File Response/Reply to Objections to Magistrate Judge's Report and Recommendation by Dennis Hasty. (Elgarten, Clifton) (Entered: 09/12/2018)
ORDER granting 841 Motion for Extension of Time −− Responses to objections to the Report and Recommendations are now due by October 8, 2018. So Ordered by Chief Judge Dora Lizette Irizarry on 9/13/2018. (Carosella, Christy) (Entered: 09/13/2018)
842 MEMORANDUM in Opposition re 839 Objection to Report and Recommendations by Defendant Hasty filed by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood. (Meeropol, Rachel) (Entered: 10/08/2018)
843 MEMORANDUM in Opposition re 838 Objection to Report and Recommendations by Plaintiffs filed by Dennis Hasty. (Elgarten, Clifton) (Entered: 10/08/2018)
844 REPLY in Opposition re 842 Memorandum in Opposition, 843 Memorandum in Opposition to Report and Recommendations of Magistrate Judge filed by Salvatore LoPresti. (Keefe, James) (Entered: 10/08/2018)
845 Letter by Dennis Hasty (Elgarten, Clifton) (Entered: 10/16/2018)
846 Letter of supplemental authority by Ahmer Abbasi, Purna Bajracharya, Benamar Benatta, Saeed Hammouda, Ahmed Khalifa, Anser Mehmood (Meeropol, Rachel) (Entered: 01/04/2019)


[CONTENT] one | two | the U.S. District Court | the Eastern District | New York | 9/11 ||| April 17, 2002 ||| John Gleeson ||| Elmaghraby v. Ashcroft</i | Ashcroft | Gleeson | the Supreme Court's | 556 | U.S. | 662 ||| Dora Irizarry | March 9, 2016 | Gleeson ||| Middle Eastern | South Asian | FBI | INS | September 11 ||| months | the Metropolitan Detention Center | Brooklyn | FBI |||  ||| U.S. | FBI | INS | the Metropolitan Detention Center | First | Fourth | Fifth | Sixth Amendments | the Civil Rights Act | the Alien Tort Statute |||  |||  ||| the Bush Administration ||| the Office of the Inspector General | April and December 2003 ||| the Federal Tort Claims Act | one | 28 ||| Four | U.S. ||| first | U.S. ||| the U.S. Marshals Service ||| 2007 | the Department of Justice | eleven | Metropolitan Detention Center | three ||| Ten | eleven | Center ||| 2009 | Supreme Court | Ashcroft v. Iqbal</i></a> | six | $1.26 million ||| fourth | September 13, 2010 | six | Ashcroft ||| January 15, 2013 | FBI | INS | two | the Metropolitan Detention Center ||| two ||| MDC | the Second Circuit ||| 13-1662 | May 1, 2014 ||| More than a year later | June 17, 2015 | the Due Process Clause | the Equal Protection Clause | the Fourth Amendment | 42 | 1985 | DOJ | MDC |||  ||| FBI | post-September 11 | Bivens</i | the Supreme Court | Second Circuit ||| 789 | 218 | 2d | 2015 |||  ||| 90-day | the Solicitor General | the Supreme Court ||| the Supreme Court | June 19, 2017 ||| the Supreme Court | the Second Circuit | Bivens</i | Congress ||| 137 | 1843 ||| MDC | the Fifth Amendment | the Second Circuit | Bivens</i ||| Court | 42 | § | 1985 ||| The Second Circuit ||| February 27, 2018 | DOJ ||| the Supreme Court's | MDC ||| August 13, 2018 | MDC ||| Congress | Bivens</i |||  ||| July 2, 2020 [SUMMARY] <i>Turkmen v. Ashcroft</i>, also known as <i>Ziglar v. Abbasi</i>, is one of two related actions filed in the U.S. District Court for the Eastern District of New York by plaintiffs who were investigated and detained for suspected terrorist ties in the wake of the 9/11 attacks. It was filed on April 17, 2002 as a class-action lawsuit, but the class was never certified.  The case was assigned to Judge John Gleeson. (The related case, <i>Elmaghraby v. Ashcroft</i> (later <i>Ashcroft v. Iqbal</i>), was also assigned to Judge Gleeson, and was settled following the Supreme Court's ruling in that case, 556 U.S. 662.)  This case was reassigned to Judge Dora Irizarry on March 9, 2016, when Judge Gleeson resigned from the bench to return to private practice.

The plaintiffs in this case were men of Middle Eastern and South Asian descent who were arrested by the FBI and the INS in immigration raids following the September 11 attacks.  They were held for months in the Metropolitan Detention Center in Brooklyn as the FBI investigated potential links to terrorism, but they were never charged with a crime.  Some of the plaintiffs alleged that they were kept in solitary confinement, barred from communication with attorneys, family, and friends, subjected to physical and verbal abuse, and obstructed in their efforts to practice their religion.  They sued the U.S. Attorney General, the FBI Director, the INS Commissioner, and employees of the Metropolitan Detention Center, alleging violations of the First, Fourth, Fifth, and Sixth Amendments, international human rights law, the Civil Rights Act, and the Alien Tort Statute, seeking compensatory and punitive damages.

Factually, the plaintiffs alleged that notices to appear in court were delayed in reaching them, that they were subject to a blanket no-bond policy, and that they were arbitrarily classified as "of high interest."  They claimed that they were subjected to strip searches, sleep deprivation, effective denial of exercise, denial of hygiene items and adequate food, inadequate medical attention, deliberate interference with religious rights, communications blackouts, interference with access to counsel, and denial of consular rights. The plaintiffs further alleged that they were subjected to these harsh conditions because of their religion or ethnicity, and that their continued detention under these conditions stemmed from a discriminatory policy created by high-level officials in the Bush Administration.

The plaintiffs later amended their complaint in light of reports published by the Office of the Inspector General in April and December 2003.  The amended complaints added new allegations, claims under the Federal Tort Claims Act, one additional plaintiff, and 28 Metropolitan Detention Center employees as defendants.

Four plaintiffs who had been deported were paroled into the U.S. for deposition. This was the first time that non-citizens barred from re-entering the U.S. were allowed to enter for the purpose of pursuing a civil case. While in the country they were under the strict custody of the U.S. Marshals Service.

In 2007, the Department of Justice indicted eleven current and former Metropolitan Detention Center employees, including three <i>Turkmen</i> defendants. Ten of the eleven were convicted of physical attacks against detainees at the Center; those convictions did not involve attacks against the plaintiffs in this case.

Following the 2009 Supreme Court ruling in <a href="https://www.clearinghouse.net/detail.php?id=9788"><i>Ashcroft v. Iqbal</i></a>, six of the plaintiffs settled their claims for $1.26 million. The remaining plaintiffs filed a fourth amended complaint on September 13, 2010, adding six new plaintiffs and attempting to meet the pleading standard set in <i>Iqbal</i>, so as to maintain claims against Ashcroft and other high-ranking officials.  

On January 15, 2013, the district court dismissed all claims against the Attorney General, the FBI Director, and the INS Commissioner (the "DOJ defendants"), and also dismissed two of the claims against the Metropolitan Detention Center employees (the "MDC defendants").  Those two claims, based on alleged communications blackouts and interference with counsel, were dismissed on the grounds of qualified immunity.

The plaintiffs collectively and the MDC defendants individually appealed the ruling to the Second Circuit. The appeals were consolidated as Case No. 13-1662; the consolidated appeal was heard on May 1, 2014.  More than a year later, on June 17, 2015, the appeals court reinstated the plaintiffs' claims under the Due Process Clause, the Equal Protection Clause, the Fourth Amendment, and 42 U.S.C. §1985, against the DOJ defendants and the MDC defendants.  The court upheld the dismissal, however, of the plaintiffs' claims under the Free Exercise Clause.

In reinstating the claims against the Attorney General and the FBI Director for their post-September 11 policy decisions, the court was extending the application of <i>Bivens</i> into "a context not previously recognized by the Supreme Court or Second Circuit precedent."  789 F.3d 218 (2d Cir. 2015).  It was also an innovation for the court to hold that officials were not protected by qualified immunity for punitive and discriminatory confinement and unreasonable strip searches that they imposed on detainees after learning that those detainees were being held with no individualized suspicion of terrorist connections.

The defendants' petition for rehearing en banc was denied; they subsequently sought a 90-day stay of the mandate while the Solicitor General determined whether to appeal to the Supreme Court. The appeals court granted the stay, and the Supreme Court ultimately heard the appeal and issued a decision on June 19, 2017.  Titling the case <i>Ziglar v. Abbasi</i>, the Supreme Court held that the Second Circuit should not have extended <i>Bivens</i> liability to the DOJ defendants, emphasizing that "Congress, not the courts, should decide whether a damages action should be allowed."  137 S.Ct. 1843.  It held that the plaintiffs' abuse allegations against the MDC defendants did state a plausible claim for relief under the Fifth Amendment, and remanded to the Second Circuit to determine whether a <i>Bivens</i> damages remedy would be appropriate.  Finally, the Court dismissed the 42 U.S.C. §1985 conspiracy claims, ruling that the defendants were entitled to qualified immunity.

The Second Circuit remanded the case to the district court for additional proceedings. On February 27, 2018, the district court dismissed the plaintiffs' claims against the DOJ defendants and referred the remainder of their claims to a magistrate judge.  In light of the Supreme Court's ruling, the remaining (MDC) defendants moved to dismiss the case for failure to state a claim.

On August 13, 2018, the magistrate judge issued a report, recommending that the plaintiffs' claims against the MDC defendants be dismissed.  The magistrate judge concluded that Congress was in "the best position to weight the costs and benefits of allowing a [<i>Bivens</i>] cause of action to proceed" in the context of prisoner abuse claims such as those brought in this case.

The plaintiffs have since filed objections to the report.  As of July 2, 2020, the report and the plaintiffs' objections to it are pending before the district court.