Rezaq v. Nalley
677 F.3d 1001
10th Cir.2012Background
- Plaintiffs Omar Rezaq, Mohammed Saleh, Ibrahim Elgabrowny, and El-Sayyid Nosair are federal inmates convicted of terrorism-related offenses who were transferred from US prisons to ADX Florence, a highly restrictive facility.
- Transfers occurred without notice or hearing, justified by prison safety and national security concerns in the wake of 9/11.
- Plaintiffs challenged both the ADX transfer and, for Saleh, Elgabrowny, and Nosair, denials of admission to the Step-Down Program, alleging a due-process liberty interest in avoiding ADX confinement.
- The Nalley Memorandum later introduced retroactive transfer-hearing procedures; most hearings recommended continued ADX placement, and retroactive appeals were not successful.
- All plaintiffs were eventually moved from ADX to CMUs within USPs, but the district court granted summary judgment for the BOP on the theory that no liberty interest existed; the appeal questioned mootness and merits.
- The court held the cases were not moot and proceeded to consider whether a liberty interest existed under DiMarco-type factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a liberty interest exist in avoiding ADX confinement? | Rezaq/Saleh argue atypical, significant hardship in ADX warrants due process. | BOP contends no liberty interest exists in avoiding ADX conditions. | No liberty interest established; due process not required before transfer. |
| Are the plaintiffs' claims moot after transfers and policy changes? | Ongoing effects of ADX confinement warrant prospective relief. | Transfers and new policies render claims moot. | Not moot; prospective relief remains possible; merits addressed. |
| Should the DiMarco factors or baseline comparisons govern the liberty-interest inquiry here? | Baseline should reflect ordinary prison life and extended segregation impacts. | Court may consider penological interests and context; not bound to one rigid baseline. | Use a fact-driven, totality-of-circumstances approach; DiMarco factors guide but do not control the analysis. |
Key Cases Cited
- Wilkinson v. Austin, 545 U.S. 209 (U.S. 2005) (set baseline for atypical and significant hardship in supermax confinement)
- DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334 (10th Cir. 2007) (outlines nondispositive factors guiding liberty-interest inquiry)
- Sandin v. Conner, 515 U.S. 472 (U.S. 1995) (identifies atypical and significant hardship concept)
- Hewitt v. Helms, 459 U.S. 460 (U.S. 1983) (recognizes limited protected liberty interests in confinement contexts)
- Davis v. New York, 316 F.3d 93 (2d Cir. 2002) (retention of remedies when not moot remains a consideration)
- Los Angeles Cnty. v. Davis, 440 U.S. 625 (U.S. 1979) (heavy burden to show mootness in prospective-relief actions)