Yassin Aref v. Loretta Lynch , 833 F.3d 242 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2016 Decided August 19, 2016
No. 15-5154
YASSIN MUHIDDIN AREF, ET AL.,
APPELLANTS
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED
STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00539)
Rachel Anne Meeropol argued the cause for appellants.
With her on the briefs were Pardiss Kebriaei and Gregory
Stewart Silbert. Shayana D. Kadidal entered an appearance.
William R. Stein, Scott H. Christensen, and Elizabeth C.
Solander were on the brief for amici curiae The Legal Aid
Society of the City of New York, et al. in support of
plaintiffs-appellants.
Jonathan Hafetz was on the brief for amicus curiae Seton
Hall University School of Law Center for Social Justice in
support of appellants.
2
Carleen M. Zubrzycki, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and H. Thomas Byron III, Attorney. Mark B. Stern
and Joshua P. Waldman, Attorneys, entered appearances.
Before: BROWN and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge:
Appellants are three federal prisoners who spent several
years housed in specially designated Communication
Management Units (CMUs), a classification that meant family
visits and communications with the outside world were
curtailed. Appellants contend their designation to CMUs
violated their due process rights. One appellant also alleges
his continued CMU placement was in retaliation for protected
speech in violation of the First Amendment. Finally,
appellants seek damages under the Prison Litigation Reform
Act (PLRA) for a variety of injuries allegedly arising out of
their confinement in CMUs, including the denial of certain
educational and professional programming, violations of their
constitutional rights, and harm to familial relationships. The
district court granted summary judgment for the government
on each claim.
Because we find the duration and atypicality of CMU
designation sufficient to give rise to a liberty interest, we
reverse the district court and remand for further proceedings
to determine whether appellants were afforded sufficient
process. With respect to the retaliation claim, we affirm the
grant of summary judgment for the government because
3
appellant cannot show his First Amendment rights were
violated. Unlike the district court, we hold appellants have
alleged harms qualifying for compensation under the PLRA
because their injuries were neither mental nor emotional in
nature and so do not require a showing of physical injury. We
nonetheless uphold the grant of summary judgment because
we find the prison official entitled to qualified immunity.
I.
A. Communication Management Units
The CMUs at the heart of this controversy are located at
two federal correctional facilities in Terre Haute, Indiana, and
Marion, Illinois. They were established in 2006 and 2008,
respectively. See Aref v. Holder, 774 F. Supp. 2d 147, 153
(D.D.C. 2011). The Bureau of Prisons (BOP) designed
CMUs in response to a problem identified by the Department
of Justice: a “deficiency” in the monitoring of inmate
communications that allowed several inmates with terrorism-
related convictions to communicate with extremist groups
outside the prisons. CMUs thus house inmates who require
communications monitoring beyond that which can feasibly
be provided in the general population.
CMU inmates have access to more limited and less
private communications compared to general population
inmates. All visits—aside from attorney visits—must be
“non-contact,” meaning a glass wall separates the inmate and
visitor and communication takes place via a microphone. See
28 C.F.R § 540.205(a). All visits must be conducted in
English, live-monitored, and recorded by BOP. See id.
Although BOP regulations allow visitation to be restricted to
four one-hour visits each month, id., BOP currently permits
up to eight hours a month. CMU inmates are also restricted in
4
the frequency and length of their written correspondence,
which is subject to inspection. See id. § 540.203. Finally,
except for unmonitored attorney calls, CMU inmates can
telephone only immediate family members, and the calls are
monitored. Id. § 540.204. Under the regulation, telephonic
communication can be limited to no more than three fifteen-
minute calls per month, id., but BOP currently allows inmates
two fifteen-minute calls per week.
Aside from these restrictions, CMUs essentially function
as “self-contained general population housing unit[s].” J.A.
108. Inmates typically are not confined to their cells except at
night and during security checks. They have access to
common areas for up to sixteen hours a day, recreational
facilities, exercise equipment, and the library. They can keep
personal property in their cells, participate in religious
services, receive educational and professional training, and be
designated for work assignments.
An inmate can be designated to a CMU for several
reasons, including having a conviction offense related to
international or domestic terrorism; demonstrating a
propensity for using communication channels to further
illegal activity outside the prison or to contact victims;
abusing approved communication methods; or presenting a
potential threat to prison facilities or the public as a result of
unmonitored communications with persons outside the prison.
See 28 C.F.R § 540.201. 1 Designation to a CMU begins
when BOP becomes aware of information relevant to any of
1
It bears noting that both CMUs were opened before BOP
established any written designation criteria. In April 2010, BOP
published a proposed rule for public notice-and-comment. See 80
Fed. Reg. 3168 (Jan. 22, 2015). The final rule entered into effect
on February 23, 2015, almost a decade after the first CMU opened.
Id.
5
these criteria. See id. § 540.202(a). BOP’s Assistant Director
evaluates and approves the designation if, after a review of
the evidence, he concludes “designation . . . is necessary to
ensure the safety, security, and orderly operation of
correctional facilities, or protection of the public.” 2 Id.
§ 540.202(b). Once in the CMU, the inmate receives a
written Notice of Transfer (Notice) from the Warden
explaining that the placement allows increased
communications monitoring, the placement is non-punitive
and will not affect the length of incarceration, and continued
designation will be reviewed “regularly” with both notice and
an opportunity to be heard. Id. § 540.202(c). The inmate also
receives “an explanation of the [Assistant Director’s] decision
in sufficient detail,” unless the Assistant Director determines
that providing this information would jeopardize the safety of
the facility or the public. Id. § 540.202(c)(4). Finally, the
inmate may challenge his CMU designation through BOP’s
administrative remedy program. Id. § 540.202(c)(6).
In 2009—three years after the first CMU opened—BOP
instituted periodic review of prisoners, allowing for potential
redesignation every six months. See id. § 524.11(a)(2). The
2
Before codification of the CMU regulations, the ultimate
decisionmaker was BOP’s Regional Director. The process
otherwise has remained essentially the same. Initial consideration
begins when an entity (institutional or otherwise) refers a prisoner
to BOP’s Counter-Terrorism Unit (CTU). The CTU creates a
“designation packet” that includes a summary of the supporting
information, a recommendation for or against, and a proposed
Notice of Transfer. The packet is sent to the Office of General
Counsel to be reviewed for legal sufficiency and then to the
Correctional Programs Division. Previously, the Regional Director
would distribute the packet to several administrators, allowing each
to comment before making his final decision. Now the Assistant
Director makes his assessment and decision independently.
6
process begins with the inmate’s Unit Team making an initial
determination about whether continued CMU placement is
necessary. The inmate must be given notice forty-eight hours
before this review, which takes place in person. Id.
§ 524.11(b)(1). The recommendation considers factors like
“whether the original rationale for CMU designation has been
mitigated” and “whether the inmate no longer presents a risk.”
J.A. 689. The Warden then receives the transfer
recommendation for his review. If he agrees, the
recommendation is sent to the Counter-Terrorism Unit (CTU)
for its independent assessment—which is then forwarded to
the Assistant Director 3 for a final decision. The inmate is
informed in writing of the decision and (at least theoretically)
provided an explanation for the result. There is no limitation
on the duration of a prisoner’s CMU placement.
B. The Plaintiffs
(1) Yassin Aref. Aref is an Iraqi refugee convicted of
helping a terrorist organization prepare to launch a missile
attack on American soil by helping to finance the missile’s
purchase. United States v. Aref, 285 F. App’x 784, 790 (2d
Cir. 2008). He is serving a fifteen-year sentence for money
laundering, providing material support for terrorism,
conspiracy, and making a false statement to the FBI. Aref,
774 F. Supp. 2d at 154. He was initially classified as a “low
security” inmate with no disciplinary record, but he was
transferred to the Terre Haute CMU in May 2007. Id. Within
a day, he received a one-page Notice stating his designation
was because of his terrorism-related conviction and because
his “offense conduct included significant communication,
association, and assistance to Jaish-e-Mohammed (JeM),” a
designated terrorist organization. Id. at 154–55. Aref
3
Previously, the decision-maker was the Regional Director.
7
appealed, arguing he had never made contact with any JeM
members; he had instead unknowingly been communicating
with an individual cooperating with the government. The
Regional Director denied the appeal. After eighteen months,
Aref was transferred to the Marion CMU.
In September 2010, three years after Aref’s initial
designation, his Unit Team and the Warden recommended
him for transfer. This request was denied after the CTU
received confidential law enforcement information from the
Joint Terrorism Task Force. He was notified about the denial,
but the notification provided no explanation. He was again
recommended for transfer in March 2011, and this time the
CTU agreed. Since April 2011, he has been housed in Marion
Prison’s general population.
(2) Kifah Jayyousi. In 2008, Jayyousi was sentenced to a
152-month term for conspiracy to murder, kidnap, and maim
in a foreign country and conspiracy to provide material
support to terrorism. He and his co-conspirators were found
to have communicated in code and posed as a charitable
organization to further these goals. See United States v.
Jayyousi, 657 F.3d 1085, 1091–92 (11th Cir. 2011).
Although he was originally classified as a “low security”
prisoner, he was transferred to the Terre Haute CMU in June
2008. Upon arrival, he received a Notice pointing to his
terrorism-related conviction and offense conduct—which
involved communication and association with al-Qaida—as
the basis for his transfer. He appealed administratively,
arguing this information was inaccurate; BOP denied his
appeal without responding to his factual challenges.
Jayyousi was first considered for redesignation in
December 2009, but his Unit Team recommended against it
because of the severity of his offense. In October 2010, he
8
was transferred to the Marion CMU. His Unit Team and
Warden recommended him for transfer in 2011 based on good
conduct. Leslie Smith—then-Chief of BOP’s CTU—
disagreed because of a sermon Jayyousi gave as part of a
Muslim prayer meeting in which he participated in 2008
while at Terre Haute’s CMU. Although Jayyousi received a
disciplinary charge for that incident, he was cleared of any
wrongdoing years before Smith considered this request. In
March 2013, Jayyousi was again recommended for transfer,
which was approved by the Regional Director without
explanation. He continues to be housed in Marion Prison’s
general population.
(3) Daniel McGowan. McGowan was a member of the
Earth Liberation Front, a domestic terrorist organization.
Aref, 774 F. Supp. 2d at 155. He was sentenced to a seven
year term in 2007 for two counts of arson. Id. McGowan was
also originally classified as a “low security” prisoner with no
prison disciplinary record. Nonetheless, he was transferred to
the Marion CMU in August 2008. He received his Notice ten
days later, which cited his offense conduct as involving arson
and the “destruction of an energy facility,” as well as
communicating in code and teaching others how to commit
arson. See id. McGowan appealed, challenging the factual
assertions in his Notice as demonstrably false—pointing out
he had never been accused or convicted of any crime relating
to the destruction of an energy facility. BOP did not respond
directly to McGowan’s challenge, denied his appeal, and
directed him to his pre-sentence report, which contained no
mention of any energy facility.
McGowan was first recommended for transfer in 2010,
which the Regional Director denied without explanation. In
July 2010, he was again recommended for transfer, which the
Regional Director granted without explanation. A few
9
months later, BOP officials determined that McGowan was
attempting to circumvent the communication monitoring
controls imposed on the general population; he was thus
redesignated to the CMU in 2011. He remained in the CMU
until his release from prison in December 2012; he was fully
released from BOP supervision in June 2013.
C. Procedural History
On April 1, 2010, seven plaintiffs filed suit against BOP,
alleging a variety of claims related to their CMU placement:
violation of their procedural due process rights due to
inadequate notice and lack of opportunity to be heard;
violation of their substantive due process and First
Amendment rights to “family integrity”; violation of the
Eighth Amendment’s prohibition on cruel and unusual
punishment; retaliatory transfer into the CMU in violation of
the First Amendment; and unlawful discrimination on the
basis of religion in violation of the First and Fifth
Amendments. See Aref v. Holder, 953 F. Supp. 2d 133, 138
(D.D.C. 2013). Plaintiffs sought declaratory and injunctive
relief, transfer out of the CMUs, and an order requiring they
be allowed the same communication privileges as other
prisoners. See Aref, 774 F. Supp. 2d at 157.
The district court dismissed all but the procedural due
process and First Amendment retaliation claims. See id. at
161–71. In November 2012, Aref, Jayyousi, and McGowan
filed an amended complaint adding a retaliation claim against
defendants in their official capacities and against Leslie Smith
in his individual capacity. Aref, 953 F. Supp. 2d at 138. At
the motion to dismiss stage, the district court found the PLRA
barred plaintiffs’ individual-capacity claims and dismissed
10
McGowan’s equitable claims as moot because he had been
released from BOP custody. See id. at 142–44, 147–49. 4
Defendants then filed motions for summary judgment on
the remaining claims: Jayyousi and Aref’s official-capacity
due process claim and Jayyousi’s First Amendment retaliation
claim. In March 2015, the district court granted summary
judgment in favor of defendants, finding plaintiffs lacked any
liberty interest sufficient to trigger due process protections
and that Jayyousi’s First Amendment rights were not violated.
See Aref v. Holder, No. 10-cv-0539, 2015 WL 3749621 at *1,
*8–*9 (D.D.C. Mar. 15, 2015). Plaintiffs timely appealed. 5
II.
We review the district court’s grant of summary
judgment de novo. See Pharm. Research & Mfrs. of Am. v.
Fed. Trade Comm’n, 790 F.3d 198, 204 (D.C. Cir. 2015). In
doing so, we must “view the evidence in the light most
favorable to the non-moving party, draw all reasonable
inferences in his favor, and eschew making credibility
determinations or weighing the evidence.” Baumann v.
District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015).
We also review the district court’s dismissal of appellants’
individual-capacity claims de novo. See Kimberlin v. U.S.
Dep’t of Justice, 318 F.3d 228, 231 (D.C. Cir. 2003).
4
This case was originally assigned to Judge Urbina of the district
court. It was transferred to Judge Rothstein on November 5, 2012,
who ruled on this motion to dismiss and the subsequent summary
judgment motions. See Aref v. Holder, No. 10-cv-0539, 2015 WL
3749621 at *2 n.1 (D.D.C. Mar. 15, 2015).
5
Leslie Smith passed away on March 16, 2015. The government
did not file its notice of death until December 22, 2015—seven
months later and after this appeal had begun. See Aref v. Lynch,
Dkt. #1554923, at 45.
11
III.
Since this lawsuit’s inception, the government has urged
at least some if not all of plaintiff-appellants’ arguments are
moot because they were removed from the CMUs years ago.
The parties agree McGowan’s official-capacity claims are
mooted by his full release from BOP custody, see Aref, 953 F.
Supp. 2d at 142–43, so we consider only whether Aref and
Jayyousi’s transfer into general population moots their claims.
The mootness doctrine ensures compliance with Article
III’s case and controversy requirement by “limit[ing] federal
courts to deciding actual, ongoing controversies.” Am. Bar
Ass’n v. Fed. Trade Comm’n, 636 F.3d 641, 645 (D.C. Cir.
2011). Accordingly, mootness must be assessed at “all
stages” of the litigation to ensure a live controversy remains.
21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 198
(D.C. Cir. 2003). A case is moot if our decision “will neither
presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.” Am. Bar
Ass’n, 636 F.3d at 645.
The government argues that, because it has been years
since any appellant was housed in a CMU, the appellants
cannot identify any current injury for which this court can
provide effective relief. While “[n]ormally[] a prisoner’s
transfer or release from a prison moots any claim he might
have for equitable relief arising out of the conditions of his
confinement in that prison,” Scott v. District of Columbia, 139
F.3d 940, 941 (D.C. Cir. 1998), appellants point to the
likelihood of redesignation from general population to a
CMU. See, e.g., Aref, 774 F. Supp. 2d at 158 (“McGowan
was designated to a CMU, transferred back into the general
population and then redesignated to a CMU.”). Appellants
have also challenged BOP’s reliance on flawed information
12
used to justify their CMU designations, which remains in their
prison files. See Rezaq v. Nalley, 677 F.3d 1001, 1009 (10th
Cir. 2012) (holding prisoners’ claims not mooted by transfer
out of maximum security facility because, “[e]ven though the
new transfer policies may provide adequate process, the case
is not moot if the BOP made decisions under the old policies
that have ongoing, long-term consequences for the plaintiffs
that could be mitigated by an award of prospective relief”).
We need not decide that issue, however, because a
defendant’s voluntary cessation of allegedly unlawful conduct
can moot a case only if (i) “there is no reasonable expectation
. . . that the alleged violation will recur,” and (ii) “interim
relief or events have completely and irrevocably eradicated
the effects of the alleged violation.” Am. Bar Ass’n, 636 F.3d
at 648. The government bears the “heavy” burden of showing
it is “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189
(2000) (emphasis added). We agree with the district court
that the government has not met this high bar. Moreover, as
the district court observed, appellants are challenging the
procedure used for designation—so even if new information
would be needed to return them to the unit, they have not
“obtained all the relief” they seek in their complaint with
respect to the designation process. Schmidt v. United States,
749 F.3d 1064, 1068 (D.C. Cir. 2014). We therefore conclude
the voluntary cessation exception applies and proceed to
consider appellants’ claims on the merits. 6
6
The government also argues voluntary cessation only applies if
the cessation came about “because of” the litigation—an argument
the district court says the government waived. See Aref, 2015 WL
3749621, at *4 n.3. The government claims the Ninth Circuit has
“implied” this requirement. Pub. Utils. Comm’n of Cal. v. FERC,
100 F.3d 1451, 1460 (9th Cir. 1996). But neither this circuit nor
13
IV.
Having found jurisdiction, we turn now to appellants’
due process claim. The Fifth Amendment ensures no
individual is “deprived of life, liberty, or property, without
due process of law.” U.S. CONST. amend. V. Appellants
challenge as inadequate the procedures used to designate them
to the CMUs, claiming their transfer and lengthy placement in
the units deprived them of their liberty in violation of the
Constitution. Outside the penal context, we simply would
evaluate the procedures under the now familiar Mathews v.
Eldridge balancing test: first identifying the liberty interest at
stake, then considering the risk of erroneous deprivation
under existing procedures, and finally weighing the
the Supreme Court consistently has required a finding that the
cessation was undertaken because of the litigation. See, e.g.,
Friends of the Earth, Inc., 528 U.S. at 193–94 (assessing voluntary
cessation without any indication the plant’s shutdown, years after
the case was filed, was a response to the litigation); Am. Iron &
Steel Inst. v. EPA, 115 F.3d 979, 1006–07 (D.C. Cir. 1997)
(analyzing as voluntary cessation an EPA policy change announced
before litigation began). A defendant who ceased the challenged
conduct for reasons unrelated to the litigation may have an easier
time showing the challenged conduct is unlikely to reoccur, but
“the cessation of an ongoing activity pending a lawsuit may [also]
well imply an intent to renew the activity once the court has
dropped out.” Clarke v. United States, 915 F.2d 699, 705–06 (D.C.
Cir. 1990). We are therefore unpersuaded by the government’s
argument that appellants must prove their transfers were “because
of” this litigation. And even if so, circumstantial evidence indicates
the transfers may have been motivated at least in part by the
pending litigation: not a single prisoner was transferred back into
general population during the first three years of the CMU, until a
then-named plaintiff was transferred out on the eve of this
litigation. All other named plaintiffs subsequently were transferred
out during the pendency of this litigation.
14
government’s interest against the burdens any additional
process would entail. See 424 U.S. 319, 335 (1976);
Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37, 45–46
(D.C. Cir. 1999). This first step is complicated, however, by
appellants’ incarceration, which “brings about the necessary
withdrawal or limitation of many privileges and rights,”
including the protections of due process. Jones v. N.C.
Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977).
Evaluating due process claims in this context thus
requires us to consider two competing—but significant—
realities. First, we must “giv[e] appropriate deference to the
decisions of prison administrators and appropriate recognition
to the peculiar and restrictive circumstances of penal
confinement.” Id. Prison officials face the unenviable task of
ensuring the safety and security of large populations of people
convicted of crimes and frequently are confronted with novel
challenges in doing so. We therefore afford them “broad
administrative and discretionary authority over the institutions
they manage.” Hewitt v. Helms, 459 U.S. 460, 467 (1983).
At the same time, prisoners are “not wholly stripped of
constitutional protections” once they pass through the prison
gates. Wolff v. McDonnell, 418 U.S. 539, 555 (1974).
Guarantees of due process may contract, but they are not
eliminated entirely.
A. Liberty Interest
With these broad principles in mind, the Supreme Court
in Sandin v. Conner articulated a new test for identifying
liberty interests in confinement conditions. See 515 U.S. 472
(1995). Courts previously had looked to state law to
determine whether a liberty interest existed; under Sandin, the
inquiry now focuses on the nature of the deprivation and its
duration. Specifically, the Court held a liberty interest exists
15
only if the conditions amount to an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. at 484. Absent a liberty interest, an inmate is
not entitled to any process.
In Sandin, a prisoner challenged the procedure used to
place him in disciplinary segregation for thirty days. The
Court held this placement did not amount to a liberty interest,
noting “disciplinary segregation, with insignificant
exceptions, mirrored those conditions imposed upon inmates
in administrative segregation and protective custody.” Id. at
486. The Court observed inmates in that prison’s general
population also had “significant amounts” of “lockdown
time.” Id. Finally, the Court found the inmate’s confinement
would not “inevitably affect” the length of his sentence. Id. at
487. Thus, “a comparison between inmates inside and outside
disciplinary segregation” demonstrated his placement there
for 30 days “did not work a major disruption in his
environment.” Id. at 486.
(1) Precedent Applying Sandin
The Sandin Court did not define the baseline from which
to measure what is “atypical and significant” in a particular
prison system, so lower court assessments have diverged. See
Wilkinson v. Austin, 545 U.S. 209, 223 (2005). In Hatch v.
District of Columbia, our circuit adopted a multi-factor
approach to determining the appropriate baseline. See 184
F.3d 846, 856–58 (D.C. Cir. 1999). But because the district
court and both parties rely on several instructive cases from
other circuits, we find it helpful to briefly survey the current
state of the law before turning to our own standard.
16
The Third, Sixth, and Tenth Circuits all generally look to
administrative confinement as the baseline. 7 See, e.g., Griffin
v. Vaughn, 112 F.3d 703, 706–08 (3d Cir. 1997) (finding no
liberty interest for inmate who, suspected of raping a prison
guard, was placed in administrative confinement for fifteen
months because inmates can reasonably expect to be placed in
administrative confinement during their sentence); Jones v.
Baker, 155 F.3d 810, 812–13 (6th Cir. 1998) (finding no
liberty interest for inmate placed in administrative segregation
for thirty months pending investigation for murder of a prison
guard as segregation during investigation is not atypical and
was justified); Gaines v. Stenseng, 292 F.3d 1222, 1224–26
(10th Cir. 2002) (remanding to district court to compare
conditions in disciplinary segregation to those in
administrative segregation).
The Fifth Circuit, on the other hand, has held disciplinary
segregation can never implicate a liberty interest unless it
“inevitably” lengthens a prisoner’s sentence, see Carson v.
7
The Tenth Circuit has acknowledged some inconsistency in its
application: “[w]hen considering whether the conditions, duration
or restrictions of confinement are atypical as compared with other
inmates, this court has inconsistently used comparisons either with
inmates in the same segregation or those in the general prison
population.” Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639,
650 (10th Cir. 2006). Notably, regardless of which baseline it has
used, the circuit “has never held the conditions, duration or
restrictions of the detentions presented on appeal created a liberty
interest.” Hill v. Fleming, 173 F. App’x 664, 670 (10th Cir. 2006).
The Tenth Circuit also uniquely considers whether the prison action
is “reasonably related to legitimate penological interests.” Jordan,
191 F. App’x at 652–53 (finding no liberty interest in five year
detention in administrative segregation because “it was
commensurate with ongoing security concerns and a pending
investigation”).
17
Johnson, 112 F.3d 818, 821 (5th Cir. 1997), and that
administrative segregation—being an ordinary incident of
prison life—is essentially incapable of creating a liberty
interest, see Orellana v. Kyle, 65 F.3d 29, 31–32 (5th Cir.
1995). 8 The Seventh Circuit also has adopted a high standard,
holding the baseline is not just the conditions of confinement
within that particular prison, but those at the harshest facility
in the state’s most restrictive prison. See Wagner v. Hanks,
128 F.3d 1173, 1175 (7th Cir. 1997). By contrast, the Fourth
Circuit looks to the general population as the baseline. See
Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). And the
Second Circuit requires a fact-specific determination that
compares the duration and conditions of segregation with
conditions in both administrative confinement and the general
population. See, e.g., Arce v. Walker, 139 F.3d 329, 336 (2d
Cir. 1998); Brooks v. DiFasi, 112 F.3d 46, 48–49 (2d Cir.
1997). As a result, the Second Circuit has found
confinements as short as 180 and 305 days create a liberty
interest under Sandin. See Colon v. Howard, 215 F.3d 227,
230–31 (2d Cir. 2000) (305 days); Kalwasinski v. Morse, 201
F.3d 103, 106 (2d Cir. 1999) (180 days). In sum, divergences
in the baseline often lead to divergences in outcome. We are
therefore cautious about relying too heavily on out-of-circuit
precedent in evaluating appellants’ claims, except to note that
courts are generally hesitant to find a liberty interest in the
confinement context.
Our circuit laid out its approach to the comparative
baseline in Hatch. The Hatch court examined Sandin’s
8
The Fifth Circuit has found a liberty interest in a few
extraordinary cases involving solitary confinement that spans
decades. See, e.g., Wilkerson v. Goodwin, 774 F.3d 845, 855 (5th
Cir. 2014) (finding liberty interest for prisoner kept in solitary
confinement for thirty-nine years given the exceptional duration
and restrictive conditions of confinement).
18
language and motivations to conclude a liberty interest arises
only when the deprivation “imposes an ‘atypical and
significant’ hardship on an inmate in relation to the most
restrictive confinement conditions that prison officials . . .
routinely impose on inmates serving similar sentences.” 184
F.3d at 856 (emphasis added). Because administrative
segregation is most routinely imposed, the court held it
constitutes the proper baseline. Id. In doing so, though, the
court took pains to emphasize this comparison “does not end
our analysis.” Id. We must look “not only to the nature of the
deprivation . . . but also to its length” in evaluating atypicality
and significance. Id. Since Sandin noted the thirty-day
disciplinary segregation at issue “was within the range of
confinement to be normally expected for one serving an
indeterminate term of [thirty] years to life,” 515 U.S. at 487
(emphasis added), Hatch held atypicality also depends “in
part on the length of the sentence the prisoner is serving.”
184 F.3d at 856.
Applying this standard, the Hatch court remanded to the
district court for further fact-finding to determine whether the
inmate’s segregation for twenty-nine weeks amounted to a
liberty interest. Id. at 858. Specifically, the district court was
to compare the conditions faced by the inmate (who was
segregated due to a disciplinary infraction) to the usual
conditions of administrative segregation. Id. And even if the
district court concluded those conditions were “no more
restrictive” than administrative segregation, it was still
required to determine whether confinement for twenty-nine
weeks was “atypical” compared to the length of
administrative segregation routinely imposed on similarly
situated prisoners. Id.
Though our circuit may be unique in considering the
duration of confinement relative to similarly situated
19
prisoners, duration itself is widely regarded as a crucial
element of the Sandin analysis. See, e.g., Wilkinson, 545 U.S.
at 223–24 (considering indefinite duration of confinement and
infrequency of review when finding a liberty interest in
placement at a particularly harsh supermax prison); Harden-
Bey v. Rutter, 524 F.3d 789, 793 (6th Cir. 2008) (“[M]ost (if
not all) of our sister circuits have considered the nature of the
more-restrictive confinement and its duration in determining
whether it imposes an ‘atypical and significant hardship.’”).
Duration is significant precisely because “especially harsh
conditions endured for a brief interval and somewhat harsh
conditions endured for a prolonged interval might both be
atypical.” Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir.
1999); see also Hutto v. Finney, 437 U.S. 678, 686–87 (1978)
(“[T]he length of confinement cannot be ignored in deciding
whether the confinement meets constitutional standards. A
filthy, overcrowded cell and a diet of ‘grue’ might be
tolerable for a few days and intolerably cruel for weeks or
months.”). Indeed, we have remanded a case for the sole
purpose of determining whether “the duration of plaintiff’s
administrative segregation . . . impose[d] an atypical and
significant hardship,” even when it was “apparent that the
conditions of plaintiff’s restraint” could not be considered
atypical. Brown v. District of Columbia, 66 F. Supp. 2d 41,
45–46 (D.D.C. 1999), on remand from Brown v. Plaut, 131
F.3d 163 (D.C. Cir. 1997).
We conclude, then, that the proper methodology for
evaluating deprivation claims under Sandin is to consider (i)
the conditions of confinement relative to administrative
segregation, (ii) the duration of that confinement generally,
and (iii) the duration relative to length of administrative
segregation routinely imposed on prisoners serving similar
sentences. We also emphasize that a liberty interest can
20
potentially arise under less-severe conditions when the
deprivation is prolonged or indefinite.
Having shown how our circuit’s baseline differs from
that of our sister circuits, we now note another important
distinction between this case and the usual penal due process
case. Like Sandin, the vast majority of penal due process
cases involve punitive deprivations, i.e., confinement or
privilege restriction for disciplinary purposes or while
pending the outcome of an investigation. See, e.g., Skinner v.
Cunningham, 430 F.3d 483, 487 (1st Cir. 2005) (“Skinner
was a prisoner serving a sentence for murder who had just
killed another inmate. It made perfect sense to isolate him
pending further investigation.”); Thomas v. Ramos, 130 F.3d
754, 761 (7th Cir. 1997) (“Both temporary confinement and
investigative status have been determined to be discretionary
segregation and do not implicate a liberty interest.”); Bazzetta
v. McGinnis, 430 F.3d 795, 804–05 (6th Cir. 2005) (finding
no liberty interest for prisoners subjected to a permanent ban
on visitation after two violations of the prison’s drug abuse
policy). While an inmate can be designated to a CMU for
abusing the prison’s communication system, most were
transferred there to ensure prison officials could effectively
monitor their communications—not for any punitive purpose.
In this way, CMU designation is more analogous to
transferring an individual to a harsher prison based on gang
status, for instance, than it is to disciplinary segregation.
We do not think this similarity ends the inquiry,
however. We recognize the Court held in several pre-Sandin
cases that “transfer of an inmate to less amenable and more
restrictive quarters for nonpunitive reasons is well within the
terms of confinement ordinarily contemplated by a prison
sentence.” Hewitt, 459 U.S. at 468. In Meachum v. Fano, for
example, the Court found no liberty interest even when the
21
transfer would “place the prisoner in substantially more
burdensome conditions [than] he had been experiencing”
because such transfers “are made for a variety of reasons and
often involve no more than informed predictions as to what
would best serve institutional security or the safety and
welfare of the inmate.” 427 U.S. 215, 225 (1976); see also id.
at 228 (noting it does not matter if the transfer is “for
whatever reason or for no reason at all”). Circuit courts have
also consistently held that, “generally speaking, a prisoner has
no liberty interest in his custodial classification.” Hernandez
v. Velasquez, 522 F.3d 556, 562 (5th Cir. 2008). It follows
then that a classification like gang status—and any
deprivations that flow from it—cannot de facto constitute a
liberty interest. See, e.g., id. at 563–64 (concluding lockdown
to prevent gang-violence should be expected as an ordinary
incidence of prison life); Adams v. Small, 542 F. App’x 567,
568 (9th Cir. 2013) (holding no liberty interest in
classification status as a gang member); Perez v. Fed. Bureau
of Prisons, 229 F. App’x 55, 58 (3d Cir. 2007) (“Because
changes in security classifications and limits on telephone
usage are ordinary incidents of prison confinement,” no
liberty interest existed).
This line of pre-Sandin precedent undermines appellants’
arguments. But, most recently, the Supreme Court
acknowledged that, while “the Constitution itself does not
give rise to a liberty interest in avoiding transfer to more
adverse conditions of confinement,” a lesser liberty interest
“in avoiding particular conditions of confinement may arise”
if Sandin’s requirements are met. Wilkinson, 545 U.S. at
221–22 (emphasis added). In Wilkinson, inmates who were
assigned to Ohio’s Supermax Prison (OSP) on the basis of
either their convictions (e.g., organized crime) or their
engagement in specific conduct (e.g., leading a prison gang)
challenged their transfer as violating due process. The Court
22
concluded these inmates had a liberty interest in avoiding
transfer to OSP because OSP prohibited almost all human
contact and because placement there was indefinite, subject
only to annual review, and disqualified otherwise eligible
inmates from parole consideration. See id. at 223–24.
A district court in our circuit also recently found a
prisoner plausibly alleged harsh and atypical conditions
because “he [had] been segregated from the general
population for over six years” after he was formally classified
as a “terrorist inmate.” Royer v. Fed. Bureau of Prisons, 933
F. Supp. 2d 170, 190 (D.D.C. 2013). 9 The court concluded
that, even if the conditions alleged were “no more restrictive”
than administrative segregation, the complaint should survive
because the conditions were permanent and intended to last
for the remainder of his twenty-year sentence—another
sixteen-and-a-half years. Id. In doing so, the court
distinguished Meachum as relating to the location of an
inmate’s confinement rather than to the atypical conditions of
that confinement. See id. at 191. We agree. Although
appellants’ deprivations are more akin to transfer based on a
non-punitive classification than disciplinary segregation, the
Sandin framework still guides our analysis of whether these
particular conditions can be considered “atypical and
significant.” 10
9
The case was never resolved on its merits as it was ultimately
dismissed as moot after the motion to dismiss stage.
10
The Tenth Circuit has also used its version of the Sandin analysis
to evaluate whether inmates—transferred on the basis of their
terrorism-related offenses—had a liberty interest in avoiding
designation to the Administrative Maximum Prison (ADX). See
Rezaq, 677 F.3d at 1013.
23
(2) Appellants’ Due Process Claim
Having examined this legal backdrop, we turn now to
appellants’ specific claims. Whether a liberty interest exists
here is admittedly a close call. All parties agree CMUs are
less extreme in terms of deprivation than administrative
segregation. Inmates in administrative segregation must
remain in their cells for twenty-three hours a day; they are
unable to hold jobs or access most educational opportunities.
Their possessions are also limited, and they can exercise only
one hour a day, five days a week. By contrast, CMU inmates
are allowed in common spaces with other CMU inmates for
sixteen hours a day. They have access to educational and
professional opportunities, can keep as many possessions as
inmates in the general population, and have no added
restrictions on exercise. Communication deprivations in
administrative segregation are also harsher: those inmates can
make only one fifteen-minute phone call per month and are
limited to four hours of non-contact visits per month. CMU
inmates can make two fifteen-minute calls per week and are
allowed two four-hour non-contact visits per month. We
therefore conclude CMU confinement involves significantly
less deprivation than administrative segregation.
On the other hand, CMU designation is indefinite—
lasting years in appellants’ case—and atypical because even
though several thousand inmates could be designated to
CMUs based on their commitment offenses, only a handful
are placed under these restrictions. The main tension, then, is
how atypicality, indefiniteness, and the harshness of the
depravations should be weighed.
We find three factors significant. Although CMU
designation seems analogous to a classification, it is exercised
selectively; the duration is indefinite and could be permanent;
24
the deprivations—while not extreme—necessarily increase in
severity over time. An inmate placed in administrative
segregation may be wholly unable to communicate with his
family or the outside world, but that restriction will generally
only last for a few weeks. Inmates housed in CMUs, by
contrast, may spend years denied contact with their loved
ones and with diminished ability to communicate with them.
The harms of these deprivations are heightened over time, as
children grow older and relationships with the outside become
more difficult to maintain. Cf. Wilkerson v. Stalder, 639 F.
Supp. 2d 654, 684 (M.D. La. 2007) (“With each passing day
its effects are exponentially increased, just as surely as a
single drop of water repeated endlessly will eventually bore
through the hardest of stones.”).
Admittedly, Sandin’s metric seems more difficult to
apply where the transfer involves non-punitive classification
rather than disciplinary segregation; and, as Wilkinson
acknowledges, the difficulty of establishing an appropriate
Sandin baseline has led to widely disparate conclusions about
what constitutes an atypical and significant hardship. 545
U.S. at 223. However, as Wilkinson makes clear, Sandin did
not eliminate liberty interests created by prison regulations;
instead, it focused the inquiry on the condition itself. Sandin
determines whether this lesser interest receives protection, but
is silent as to its weight in the Mathews balance. Id. What we
think pushes CMU designation over the Sandin threshold is
its selectivity and duration, not its severity, and BOP’s
recognition that some process—however de minimis—is due.
Thus, because we find the designation meets Sandin’s
requirements, we must consider the sufficiency of BOP’s
response.
As a final note, we address the relevance of appellants’
contention that CMUs are viewed as an unusual designation
25
reserved primarily for Muslim individuals convicted of
terrorism-related offenses—giving rise to a stigma analogous
to sex-offender classification. Appellants rely on Neal v.
Shimoda, 131 F.3d 818 (9th Cir. 1997), and Chambers v.
Colorado Department of Corrections, 205 F.3d 1237 (10th
Cir. 2000), to support their claim. But, in those cases, sex-
offender classification affected the length of the inmates’
sentences. In Neal, parole eligibility was contingent on
successful completion of a lengthy treatment program, 131
F.3d at 825, and, in Chambers, full good time credits were not
available to sex offenders, 205 F.3d at 1239. In contrast,
CMU designation is not based on any formal status as a
“terrorist” and not every CMU inmate is associated with
terrorist activities. Additionally, CMU designation has no
bearing on the length of an inmate’s sentence. Thus, we do
not find stigma to be relevant in this context.11
B. Process Due
We must next examine the question whether the
assignment process used by the government is adequate. The
district court never reached this question because it concluded
11
Amicus Curiae Seton Hall Center for Social Justice also alleges a
liberty interest can be found under the Supreme Court’s “stigma
plus” test. To prevail on this claim, appellants must show the
government is “the source of the defamatory allegations” and the
resulting stigma involved “some tangible change of status vis-à-vis
the government.” Doe v. U.S. Dep’t of Justice, 753 F.2d 1092,
1108–09 (D.C. Cir. 1985). Most important here, the reputation-
tarnishing statement must be false. See Vega v. Lantz, 596 F.3d 77,
81–82 (2d Cir. 2010) (finding no viable “stigma plus” argument for
plaintiff’s sex-offender classification because he had in fact been
convicted of a sex offense). All three of these appellants were
convicted of terrorism-related activity. They therefore cannot
satisfy this test’s defamation requirement.
26
no constitutional liberty interest existed. Aref, 2015 WL
3749621, at *9. Although both sides partially briefed the
issue, appellants assert the deficiencies detailed in their briefs
were “but a small piece of the voluminous and painstakingly
detailed evidence [they] provided to the District Court to
demonstrate the risk of erroneous deprivation of liberty.”
Appellant Reply Br. 22. We therefore remand this issue for
resolution on a further record. We note, however, that
appellants are challenging fundamentally predictive
judgments in an area where administrators are given broad
discretion and the government’s legitimate interests in
maintaining CMUs must be accorded substantial weight.
Because the cardinal principle in due process analysis is
flexibility—i.e., attention to relevant context and
consideration of competing interests—only minimal process
is likely due. See Hewitt v. Helms, 459 U.S. at 472.
V.
We turn next to appellant Jayyousi’s First Amendment
retaliation claim against Leslie Smith, then-Chief of BOP’s
CTU, in his official capacity. Jayyousi alleges that Smith
retaliated against him by denying his transfer out of the CMU
in 2011 because of a sermon he gave as part of a Muslim
prayer meeting in August 2008 while housed in the Terre
Haute CMU. The government counters Jayyousi’s language
could reasonably have been viewed as an attempt to radicalize
fellow Muslims, amounting to a potential security threat. To
prevail on his retaliation claim, Jayyousi must show: “(1) he
engaged in conduct protected under the First Amendment; (2)
the defendant took some retaliatory action sufficient to deter a
person of ordinary firmness in plaintiff’s position from
speaking again; and (3) a causal link between the exercise of a
constitutional right and the adverse action taken against him.”
Banks v. York, 515 F. Supp. 2d 89, 111 (D.D.C. 2007).
27
Because Jayyousi’s claim fails at the first prong, we need not
reach the final two inquiries.
While constitutional protections do not disappear at the
prison gate, it is well established that “a prison inmate retains
[only] those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier, 417
U.S. 817, 822 (1974). To evaluate whether Jayyousi’s
conduct was protected by the First Amendment, we look to
the factors laid out by the Supreme Court in Turner v. Safley:
(i) whether there was a “valid, rational connection between
the prison [action] and the legitimate governmental interest
put forward to justify it;” (ii) whether “alternative means of
exercising the right . . . remain open to prison inmates;” (iii)
“the impact accommodation of the asserted constitutional
right will have on guards and other inmates, and on the
allocation of prison resources generally;” and (iv) whether
any “ready alternative” existed. 482 U.S. 78, 89–90 (1987). 12
These factors, taken together, allow us to assess whether the
12
The district court considered only the first Turner factor, finding
“it [made] little sense” to inquire into the subsequent factors after
finding for the government on the first. See Aref, 2015 WL
3749621, at *11. While the first factor is widely recognized as the
most important, precedent indicates all four factors must be
weighed. See, e.g., Lindell v. Frank, 377 F.3d 655, 657 (7th Cir.
2004) (stating “[t]here are four factors that courts must consider in
determining whether a prison regulation is constitutional”);
Jacklovich v. Simmons, 392 F.3d 420, 427 (10th Cir. 2004) (“The
district court erred in not considering the remaining three Turner
factors in the context of summary judgment.”). At least one court
has even held a regulation violated the First Amendment because
all but the first factor cut against the prison. See Lindell, 377 F.3d
at 658–60. The district court’s failure to consider the last three
factors can be remedied on appeal.
28
challenged conduct was “reasonably related to legitimate
penological interests.” Id. at 89. Our circuit has cast this
“reasonable relation” test as “very similar,” if not identical, to
rational basis review. Amatel v. Reno, 156 F.3d 192, 198–99
(D.C. Cir. 1998). This flexible standard “ensures the ability
of corrections officials to anticipate security problems and to
adopt innovative solutions to the intractable problems of
prison administration.” O’Lone v. Estate of Shabazz, 482
U.S. 342, 349 (1987).
As an initial note, appellants make much of what, in their
eyes, amounted to “excessive deference” on the part of the
district court to Smith’s justifications for his actions. See
Appellant Br. 36 (“When applying this already deferential
Turner standard, the court is not meant to also defer to a
defendant’s assertion that there is, in fact, a valid, rational
connection between his actions and the legitimate
governmental interest.”). Appellants further emphasize the
legal standard for summary judgment, which requires courts
to draw all reasonable inferences in their favor. See id. at 39–
40. The interplay between Turner and the summary judgment
standard is admittedly murky. But the Supreme Court in
Beard v. Banks provided some guidance:
We must distinguish between evidence of
disputed facts and disputed matters of
professional judgment. In respect to the latter, our
inferences must accord deference to the views of
prison authorities. Unless a prisoner can point to
sufficient evidence regarding such issues of
judgment to allow him to prevail on the merits, he
cannot prevail at the summary judgment stage.
548 U.S. 521, 530 (2006). But the Court also cautioned that
Turner “requires prison authorities to show more than a
29
formalistic logical connection between a regulation and a
penological objective.” Id. at 536. We agree with the Eighth
Circuit that “[a] ‘reasonableness’ standard is not toothless.”
Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990).
With these principles in mind, we turn now to the first
Turner factor. This factor, which “looms especially large,”
asks whether the prison’s actions bear a rational connection to
any legitimate penological interest. Amatel, 156 F.3d at 196.
We agree with the district court that Smith could rationally
have interpreted Jayyousi’s language during the prayer
meeting as an attempt to “radicalize” other prisoners, thereby
constituting a continued security risk. Although appellants
claim Smith exaggerated the contents of the remarks, several
portions rationally could have been considered troubling,
particularly when Jayyousi stated “you are here because you
are Muslim, not because you are a criminal” and cautioned “it
is not U.S. versus Jayyousi; it is U.S. versus Islam.” J.A. 835.
Jayyousi also asserted the CMU was created from evil, and
that the suffering faced by Muslim inmates is “why we
martyr.” J.A. 836. Prison staff were concerned about the
sermon at the time it was given, as evidenced by the several
emails and follow-ups that ensued. J.A. 1292, 1296, 1298,
1300, 1302. That Jayyousi was cleared of any wrongdoing
through the prison disciplinary process does not render it
unreasonable for Smith, as the head of BOP’s CTU, to
consider the content of Jayyousi’s statements in evaluating his
CMU placement—especially the portions that indicated
Jayyousi may have been continuing some of the same actions
that led to his incarceration. The first factor weighs in favor
of the government.
The second Turner factor asks whether prisoners have
any alternative means of exercising the right at stake. The
right at issue “must be viewed sensibly and expansively.”
30
Thornburgh v. Abbott, 490 U.S. 401, 417 (1989). Turner and
O’Lone are particularly instructive. In Turner, the Court “did
not require that prisoners be afforded other means of
communicating with inmates at other institutions, nor did . . .
O’Lone require that there be alternative means of attending
the [Muslim] religious ceremony.” Id. Instead, the Turner
Court held “it was sufficient if other means of expression . . .
remained available” and, in O’Lone, it was sufficient “if
prisoners were permitted to participate in other Muslim
religious ceremonies.” Id. at 418. Here, the second factor is
easily satisfied; Jayyousi had other means of communicating
his dissatisfaction still available to him, and he was not
prohibited from giving similar sermons in the future.
The third Turner factor looks to the impact
accommodation of the asserted right will have on guards and
other inmates in the prison. It is unclear, in this context, how
BOP could have otherwise accommodated Jayyousi, as he
was allowed to pray and free to lead similar prayer meetings
in the future. Appellants’ view of “accommodation” would
require Smith to entirely disregard the content of Jayyousi’s
sermon when evaluating whether he should remain in the
CMU. But the government is not required to disregard
potentially relevant information when making that sort of
security assessment. Appellants additionally argue that
Jayyousi’s sermon did not affect allocation of prison
resources, but the number of emails generated and the need to
conduct the disciplinary hearing undermine that assertion.
Finally, under the fourth factor, we must consider
whether Smith had any ready alternatives. Again we find the
government’s position persuasive: the CMU exists precisely
because inmates who present security risks require heightened
monitoring. Given that charge, Smith had no real alternative
but to consider all information available about Jayyousi—
31
including the language used during the prayer meeting. And
once Smith determined continued monitoring was necessary,
the only option available to the government (except, perhaps
prolonged confinement in administrative segregation) was to
keep Jayyousi in the CMU.
At bottom, appellants are challenging a “disputed matter
of professional judgment” rather than disputed matters of fact.
We do not require government officials to be perfect in their
judgment, merely reasonable. Because all four Turner factors
uniformly indicate Smith’s actions here were reasonably
related to a legitimate security interest, we affirm the district
court’s grant of summary judgment on this claim.
VI.
Finally, we turn to Jayyousi and McGowan’s claims
against Smith in his individual capacity. Appellants seek
“compensatory and punitive damages” for injuries they
suffered during their purportedly retaliatory placements in the
CMUs. These injuries include the denial of job-related
programming, the stigma of being designated to a “terrorist”
unit, the prolonged deprivation of First Amendment rights to
political speech, and the undue damage to familial
relationships caused by the CMUs’ unique communication
restrictions. But before we address the availability of
damages in this context, we must answer a threshold
jurisdictional question: whether these individual-capacity
claims survive Smith’s death in March 2015. 13
13
In its briefing, the government acknowledged “[t]here is . . . no
defendant to respond to the individual-capacity claims, and
government counsel does not represent any party with respect to
those claims.” Appellee Br. 1–2. However, the government
decided to respond to appellants’ claims against Smith as amicus
curiae since “the United States has an interest in the proper
32
A. Mootness
Both sides agree state law determines whether a Bivens
action survives the death of a party. See Haggard v. Stevens,
No. 2:09–cv–1144, 2010 WL 3658809, at *3–*6 (S.D. Ohio,
Sept. 14, 2010) (undertaking an exhaustive survey of law in
this area and concluding questions of survivorship are
overwhelmingly decided by looking to state law), aff’d 683
F.3d 714 (6th Cir. 2012). They do not agree, however, about
which state’s law should govern. We have several options:
West Virginia law (where Smith was domiciled and worked),
Indiana law (where the Terre Haute CMU is located), or
Illinois law (where the Marion CMU is located). The starting
point for assessing which state’s law should apply is the law
of the forum state. See Haggard v. Stevens, 683 F.3d 714,
718 (6th Cir. 2012); see also Malone v. Corr. Corp. of Am.,
553 F.3d 540, 542 (7th Cir. 2009) (“[I]t is a familiar principle
that federal courts use the whole law of the forum state,
including that state’s choice-of-law rules.”).
The District of Columbia employs the “governmental
interest” test to determine which state’s law to apply. See
Raflo v. United States, 157 F. Supp. 2d 1, 5 (D.D.C. 2001).
This test involves a two-step inquiry: we begin by
“identifying the governmental policies underlying the
applicable law” and then “determin[e] which state’s policy
would be most advanced by having its law applied to the facts
of this case.” Id. Courts use four factors to determine which
state’s policy is most advanced by application of its laws: “(1)
the place where the injury occurred; (2) the place where the
conduct causing the injury occurred; (3) the domicile . . . of
resolution of constitutional claims against its employees.” Id. at 2.
The government is entitled to file as amicus without the consent of
the parties or leave of court. See 29 C.F.R. § 18.24.
33
the parties; and (4) the place where the relationship is
centered.” Id.
We need not determine which state’s law applies with
respect to survivorship, however, because the result is the
same under all three—appellants’ claims are not extinguished
by Smith’s death. See Ind. Code § 34-9-3-1(a); 755 Ill.
Comp. Stat. 5/27-6; W. Va. Code § 55-7-8a(a). We proceed
to the merits.
B. Damages Under The PLRA
Jayyousi and McGowan contend they are entitled to
compensation under the PLRA for a variety of injuries: loss of
educational opportunity in the form of release preparation
programming, reputational harm, violation of their First
Amendment rights, and lasting harm to their familial
relationships. The PLRA—in a provision entitled “Limitation
on Recovery”—states: “No Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”
42 U.S.C. § 1997e(e) (emphasis added). We are thus faced
with an issue of first impression for this circuit: whether
injuries that are allegedly neither mental nor emotional are
compensable under the PLRA without a prior showing of
physical injury. Our circuit has addressed Section 1997e(e)
once before in Davis v. District of Columbia, 158 F.3d 1342
(D.C. Cir. 1998). The government and district court both
contend Davis controls this issue. We disagree. In Davis, the
plaintiff sought compensatory and punitive damages for an
alleged violation of his privacy after a prison official opened
his sealed medical records and disclosed their contents
without his consent. See id. at 1345. While the Davis court
assumed without deciding that this intrusion on his privacy
34
amounted to a constitutional violation, it was careful to point
out that Davis “alleged resulting emotional and mental
distress, but no other injury” when it held his claims for
compensatory and punitive damages were foreclosed by the
PLRA. 14 Id. (emphasis added). Our circuit has therefore
never squarely addressed whether actual injuries that are
neither mental nor emotional are precluded under the PLRA
absent a showing of physical injury. Language in Davis and
from other circuits confirms this distinction. See, e.g., id. at
1349 (“[Section] 1997e(e) precludes claims for emotional
injury without any prior physical injury, regardless of the
statutory or constitutional basis of the legal wrong” (emphasis
added)); Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 375–77
(7th Cir. 2000) (dismissing claims for mental and emotional
harm stemming from an underlying constitutional violation
but allowing plaintiff to pursue claims for loss of opportunity,
loss of participation in prison activities, loss of access to
prison programs and services, and loss of freedom of
movement and social context stemming from the same
violation).
Circuits have split over the applicability of Section
1997e(e) to claims involving constitutional violations but no
physical injury. A majority has held that Section 1997e(e)
precludes compensatory damages for any claim that does not
include physical harm. 15 In doing so, these courts focus on
the type of injury asserted. See, e.g., Thompson v. Carter, 284
14
But because the Davis court found other forms of relief
(specifically injunctive and declaratory) were still available under
Section 1997e(e), the court upheld the constitutionality of the
statute under rational basis review. See id. at 1346, 1349.
15
Like Davis, these circuits sidestep concerns about Section
1997e(e) unconstitutionally foreclosing any relief by holding
injunctive and declaratory relief remain available regardless of
whether the plaintiff can show physical injury.
35
F.3d 411, 417–18 (2d Cir. 2002) (holding a “plaintiff cannot
recover damages for mental or emotional injury for a
constitutional violation in the absence of a showing of actual
physical injury”); Brooks v. Warden, 800 F.3d 1295, 1298
(11th Cir. 2015) (“Because [plaintiff] has not alleged any
physical injury resulting from his hospital stay, under the
[PLRA], he cannot recover compensatory or punitive
damages” for his Eighth Amendment claim). These cases
necessarily imply a constitutional violation, absent physical
harm, is necessarily a type of “mental or emotional injury.”
See, e.g., Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000)
(considering plaintiff’s claim of a First Amendment violation
and concluding “the only actual injury that could form the
basis for the award he seeks would be mental and/or
emotional,” thus barring his claim); Searles v. Van Bebber,
251 F.3d 869, 876 (10th Cir. 2001) (“The statute limits the
remedies available, regardless of the rights asserted, if the
only injuries are mental or emotional.”).
Several circuits have taken the opposite approach. These
courts view alleged constitutional violations as a type of
intangible harm wholly apart from mental or emotional injury.
See, e.g., King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015),
cert. denied, 136 S. Ct. 794 (2016) (“The statute provides that
a prisoner may not bring a civil action for mental or
emotional injury . . . . It says nothing about claims brought to
redress constitutional injuries, which are distinct from mental
and emotional injuries.”); Robinson v. Page, 170 F.3d 747,
749 (7th Cir. 1999) (“If the suit contains separate claims,
neither involving physical injury, and in one the prisoner
claims damages for mental or emotional suffering and in the
other damages for some other type of injury, the first claim is
barred by the statute but the second is unaffected.”).
36
Both approaches involve some degree of slicing-and-
dicing claims: one by injury pled and one by relief requested.
This is best illustrated by example. Take a prisoner who has
alleged a credible violation of his First Amendment right to
free exercise but made no showing of physical harm. Rather
than dismiss his entire action, the majority view of Section
1997e(e) would bar his claim for compensatory damages but
allow his claims for injunctive relief and punitive damages to
proceed. The minority view, on the other hand, would look to
the type of injury alleged—if, say, the prisoner claimed
mental anguish in addition to the substantive constitutional
violation, then the first claim would be barred while the
second would be eligible for compensatory damages. For the
reasons laid out below, we are convinced this narrower
reading of the PLRA is the proper one.
While Section 1997e(e) “may well present the highest
concentration of poor drafting in the smallest number of
words in the entire United States Code,” John Boston, The
Prison Litigation Reform Act: The New Face of Court
Stripping, 67 BROOK. L. REV. 429, 434 (2001), we
nonetheless begin with the statute’s plain language. See, e.g.,
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980). The government’s preferred
interpretation would render the phrase “mental and emotional
injury” superfluous. Had Congress intended to graft a
physical-injury requirement onto every single claim, the
statute could simply have provided: “No Federal civil action
may be brought by a prisoner . . . for any injury suffered while
in custody without a prior showing of physical injury.” See
Zamiara, 788 F.3d at 213; Robinson, 170 F.3d at 749; Amaker
v. Haponik, No. 98 CIV. 2663, 1999 WL 76798, at *7
(S.D.N.Y. Feb. 17, 1999) (“If Congress had intended to apply
§ 1997e(e)’s restriction to all federal civil suits by prisoners, it
could easily have done so simply by dropping the qualifying
37
language ‘for mental or emotional injury.’”). The “mental
and emotional” language is significant precisely because
prisoners can allege types of intangible injury that fall outside
that ambit.
Courts that advocate the opposite interpretation of
Section 1997e(e) claim the provision’s “clear mandate” is a
focus on the type of injury pled rather than the nature of the
underlying right. See, e.g., Searles, 251 F.3d at 876. The
Tenth Circuit, for instance, cautioned the statute’s plain
language forecloses “divorc[ing]” the underlying substantive
violation from the resulting injury. Id. But our reading does
no such thing; the focus remains on the type of injury alleged,
with an understanding that plaintiffs can allege intangible
harms that are neither mental nor emotional, i.e., not every
non-physical injury is by default a mental or emotional injury.
In the PLRA context, many of our sister circuits have
awarded compensatory damages for non-mental and non-
emotional injuries. See, e.g., Rowe v. Shake, 196 F.3d 778,
781 (7th Cir. 1999) (“A deprivation of First Amendment
rights standing alone is a cognizable injury.”); Cassidy, 199
F.3d at 375–77 (allowing claims of loss of access to prison
programs and services); Brooks v. Andolina, 826 F.2d 1266,
1269–70 (3d Cir. 1987) (finding a prisoner entitled to
compensatory damages for his unconstitutional placement in
punitive segregation including for the loss of visiting, phone,
and library privileges). Analogous Supreme Court and circuit
precedent supports the view that there can be real harms
separate and apart from mental or emotional injury. For
instance, in Carey v. Piphus, the Court held that a plaintiff is
eligible to recover damages under Section 1983 if he can
demonstrate “some actual, if intangible, injury” caused by a
constitutional violation. 435 U.S. 247, 264 (1978). Similarly,
this court in Hobson v. Wilson instructed “intangible interests
38
must be compensated” as long as they can be shown with
“sufficient certainty.” 737 F.2d 1, 62 (D.C. Cir. 1984). The
Hobson court even enumerated some examples of “First
Amendment compensable rights” separate from any common-
law mental or emotional harm, such as the restriction of an
inmate’s access to books. Id.
Indeed, courts frequently allow plaintiffs in Section 1983
actions to recover damages for constitutional violations that
fall outside the domain of common-law injuries. See, e.g.,
Simmons v. Cook, 154 F.3d 805, 808–09 (8th Cir. 1998)
(affirming an award of compensatory damages for Eighth
Amendment claim of paraplegic prisoners unconstitutionally
placed in solitary confinement); Ricciuti v. N.Y.C. Transit
Auth., 124 F.3d 123, 130 (2d Cir. 1997) (finding damages to
be an appropriate remedy for the harm caused by fabrication
of evidence). Courts have also consistently treated the loss of
liberty as an independently cognizable injury, separate from
any mental or emotional harm. See, e.g., Heck v. Humphrey,
512 U.S. 477, 484 (1994) (“[A] successful malicious
prosecution plaintiff may recover, in addition to general
damages, compensation for . . . loss of time and deprivation of
the society.”); Dellums v. Powell, 566 F.2d 216, 277 (D.C.
Cir. 1977) (affirming damage award for, among other relief,
compensation for “the duration of loss of liberty” in a Fourth
Amendment case); Kerman v. City of New York, 374 F.3d 93,
128 (2d Cir. 2004) (holding a plaintiff is “entitled to be
compensated for [his] loss of liberty” “independently of his
claims of physical, mental, emotional, or economic injury”).
We therefore conclude there exists a universe of injuries that
are neither mental nor emotional and for which plaintiffs can
recover compensatory damages under the PLRA.
Our holding also comports with the purpose of the
PLRA, as expressed in its legislative history. The Act’s
39
passage was precipitated by an increase in prison litigation,
much of it frivolous.16 Examples cited by PLRA proponents
ranged from due process cases alleging injuries like a
defective haircut to, most famously, an inmate filing a cruel
and unusual punishment claim after he was given chunky
rather than creamy peanut butter. See 141 CONG. REC. 27,042
(1995) (statement of Sen. Bob Dole). But members of
Congress also made it clear that the PLRA was not meant to
bar serious, potentially meritorious claims. See id. at 26,553
(statement of Sen. Jon Kyl) (“Prisoners still have the right to
seek legal redress for meritorious claims . . . .”); see also id. at
27,044 (statement of Sen. Strom Thurmond) (“This
amendment will allow meritorious claims to be filed, but
gives the judge broader discretion to prevent frivolous and
malicious lawsuits filed by prison inmates.”).
Indeed, we find it hard to believe that Congress intended
to afford virtual immunity to prison officials even when they
commit blatant constitutional violations, as long as no
physical blow is dealt. 17 It is especially difficult to see how
16
Notably, although there was a large increase in the absolute
number of cases filed from 1975 to 1994 (6,606 cases to 39,065
cases, respectively), Congressional debate failed to account for the
exponential growth in the prison population in the interim. The rate
of inmate filings actually dropped by approximately seventeen
percent during that time period. Jennifer Winslow, Comment, The
Prison Litigation Reform Act’s Physical Injury Requirement Bars
Meritorious Lawsuits: Was It Meant To?, 49 UCLA L. REV. 1655,
1662–63 (2002).
17
As noted above, circuits that have adopted the broader reading of
Section 1997e(e)’s bar support the provision’s constitutionality by
emphasizing the availability of alternative forms of relief: namely,
injunctive or declaratory relief, punitive damages, and nominal
damages. We need not consider the constitutionality question here
but simply note the illusory nature, in practice, of such relief.
40
violations of inmates’ First Amendment rights could ever be
vindicated, given the unlikelihood of physical harm in that
context. Against that backdrop, and a legislative record
indicating an intention to still allow awards for meritorious
claims, we believe our reading of Section 1997e(e) best aligns
with the purposes of the PLRA.
We note also that the PLRA contains several other
mechanisms to curb the filing of frivolous suits—making it
even less likely Congress intended the physical-injury
requirement to bar claims for every serious but non-mental or
emotional harm. See 42 U.S.C. § 1997e(a), (d) (requiring the
exhaustion of administrative remedies and capping attorneys’
fees for successful claims at 150 percent of damages); 28
U.S.C. § 1915(b)(1), (g) (compelling personal payment of
initial filing fees and imposing a limitation on filing in forma
pauperis after having three suits previously dismissed). And,
of course, courts have always had the power to weed out
claims that lack merit at earlier pleading stages, preserving
judicial resources. Finally, we point out one additional
limitation relevant to appellants’ claims here. Even when a
party pleads an injury that is neither mental nor emotional,
that harm still must “be shown with sufficient certainty to
Injunctive relief is commonly moot by the time a case is heard and
cannot provide relief for past harms. Punitive damages are never
awarded as a matter of right, and the standard is understandably
high—requiring evil motive or reckless indifference to the rights of
others. See Smith v. Wade, 461 U.S. 30, 51–52 (1983). Finally,
nominal damages do little to deter repetition of the illegal conduct
and do not provide any compensation for actual harms suffered. Cf.
Butz v. Economou, 438 U.S. 478, 506 (1978) (“In situations of
abuse, an action for damages against the responsible individual can
be an important means of vindicating constitutional guarantees.”);
see Doe v. District of Columbia, 697 F.2d 1115, 1124 (D.C. Cir.
1983).
41
avoid damages based either on pure speculation or the so-
called inherent value of the rights violated.” Hobson, 737
F.2d at 62. When “no value [can] reasonably be placed on the
particular injury demonstrated,” then the plaintiff is entitled
only to nominal damages. Id. at 63; see also Carey, 435 U.S.
at 264 (noting plaintiffs could recover compensatory damages
“for racial discrimination, the denial of voting rights and the
denial of Fourth Amendment rights” assuming they could
prove “some actual, if intangible, injury”); Kerman, 374 F.3d
at 130 (“The present case does not involve . . . an attempt to
vindicate an abstract societal interest. Rather, it involves an
anything-but-abstract physical detention. And although a
given person’s loss of time may be difficult to evaluate in
terms of dollars, his loss of liberty is not just ‘virtually
certain’ to occur; it is inseparable from the detention itself.”).
Having concluded a prisoner may recover compensatory
damages under the PLRA if he can show an actual injury—
separate from any mental or emotional harm—for which
damages can be reasonably ascertained, we note the vast
majority of circuits—including the majority of those that have
adopted the broader application of Section 1997e(e)—agree
the provision does not limit the availability of punitive
damages provided a proper showing is made. See, e.g.,
Searles, 251 F.3d at 879–80; Allah, 226 F.3d at 252–53;
Cassidy, 199 F.3d at 376–77; Carter, 284 F.3d at 418. Our
circuit has uniquely held that punitive damages are
unavailable to plaintiffs who plead only mental or emotional
injury, without a showing of physical harm. See Davis, 158
F.3d at 1348 (“Amicus argues that because punitive damages
are awarded to punish the tortfeasor rather than to compensate
the victim, they are not embraced by § 1997e(e). But
§ 1997e(e) draws no such distinction. It simply prevents suits
‘for’ mental injury without prior physical injury.”). We have
no occasion to reconsider that holding here. Instead, we
42
construe Davis narrowly and hold appellants who allege
actual harms that are neither mental nor emotional are entitled
to punitive damages if they can show the defendant’s conduct
was “motivated by evil motive or intent” or “involve[d]
reckless or callous indifference to the federally protected
rights of others.” Wade, 461 U.S. at 56.
Finally, every circuit, regardless of its interpretation of
Section 1997e(e), agrees that nominal damages are available
in this context. See Carter, 284 F.3d at 418 (listing cases).
Our court declined to reach this issue in Davis because it
found the plaintiff failed to sufficiently plead nominal
damages. See Davis, 158 F.3d at 1349. The district court
here also concluded these appellants waived their claim to
nominal damages by failing to “specifically plead” them in
their complaint. Aref, 953 F. Supp. 2d at 149. In doing so,
the court below relied entirely on our language in Davis.
There, the court felt it could not “strain[] to find inferences
that [were] not available on the face of the complaint or the
briefs submitted” because “Davis never sought nominal
damages” nor did his “submissions to the court ever mention
a claim to nominal relief.” Davis, 158 F.3d at 1349. But
appellants here made a specific request for nominal damages
in their opposition to the government’s motion to dismiss.
Brief for Plaintiffs at 36, Aref, et al. v. Holder, et al., No. 10-
cv-539 (D.D.C. Mar. 19, 2013), ECF No. 102. Moreover, the
plaintiff in Davis only requested compensatory and punitive
damages; his pleadings did not contain any catch-all prayer
for relief. See Complaint, Davis v. District of Columbia, No.
97-cv-00092 (D.D.C. Jan. 14, 1997), ECF No. 1. By contrast,
these appellants included a broad prayer for relief in their
complaint. See Aref, 953 F. Supp. 2d at 149 (“Plaintiffs
respectfully request the Court . . . [o]rder such other relief as
this Court deems just and proper.”). We therefore find the
reasoning in Davis inapt.
43
The Federal Rules of Civil Procedure even indicate
“[e]very other final judgment should grant the relief to which
each party is entitled, even if the party has not demanded that
relief in its pleadings.” FED R. CIV. P. 54. Thus, we conclude
appellants here have made out a sufficient claim for nominal
damages. And we join our sister circuits in holding that an
inmate who cannot make out “sufficiently certain” claims for
compensatory damages is entitled to nominal damages,
provided he proves an injury occurred. See Memphis Comm.
Sch. Dis. v. Stachura, 477 U.S. 299, 308 n.11 (1986)
(“[N]ominal damages . . . are the appropriate means of
‘vindicating’ rights whose deprivation has not caused actual,
provable injury.”).
Overall, then, we conclude appellants are eligible to seek
compensatory, punitive, and nominal damages under Section
1997e(e). They have asserted the following injuries: the
disadvantage of being denied essential reintegration
programming provided by BOP; the stigma of being
designated to facilities known as “terrorist units;” the
prolonged deprivation of First Amendment rights to political
speech and activity; and the undue damage to primary family
relationships. The district court held these harms to be too
speculative and abstract to provide a basis for compensatory
or punitive damages. See Aref, 953 F. Supp. 2d at 148–49.
We need not evaluate these injuries, however, because we
conclude infra that Smith is entitled to qualified immunity.
We similarly decline to remand to the district court to
consider—in the first instance—whether nominal damages
would be appropriate.
C. Qualified Immunity
Having concluded the PLRA does not bar appellants’
claims, we turn at last to the question whether Smith is
44
entitled to qualified immunity. Appellants can prevail only if
they show “(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft
v. al-Kidd, 563 U.S. 731, 735 (2011). For a right to have been
“clearly established,” it must have been “clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The
Supreme Court has cautioned us not to define the right at too
high a level of generality; instead, we must examine the right
in its “particularized” context. See Reichle v. Howards, 132
S. Ct. 2088, 2094 (2012). Jayyousi and McGowan allege
their continued confinement to the CMU (and, in McGowan’s
case, his redesignation) was retaliatory action taken in
violation of the First Amendment. At the outset, we note “the
right in question [here] is not the general right to be free from
retaliation for one’s speech, but the more specific right to be
free” from retaliation in this particular, penological context.
Id.
Especially in the context of prison security, we cannot—
and do not—require public officials to be perfect in their
assessments. Indeed, qualified immunity is intended to allow
“government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Lane v.
Franks, 134 S. Ct. 2369, 2381 (2014); see also Malley v.
Briggs, 475 U.S. 335, 341 (1986) (observing that qualified
immunity “provides ample protection to all but the plainly
incompetent or those who knowingly violate the law”). We
evaluate appellants’ arguments against this backdrop.
With respect to Jayyousi’s claim, as previously
discussed, appellants have failed to make out an adequate case
that his First Amendment rights were violated—much less
that it would have been clear to any reasonable officer in
45
Smith’s position that denying Jayyousi’s transfer request on
the basis of his sermon given during the prayer meeting would
violate the First Amendment. McGowan’s claims are
similarly untenable. Appellants point first to McGowan’s
initial placement in the CMU in 2008, contending it was
retaliation for protected political speech. But Smith had
several reasons for recommending the placement; most
notably, that McGowan’s conviction involved domestic
terrorist activity and that he continued to communicate with
individuals outside the prison involved in extreme
environmental advocacy. While the First Amendment may
protect this sort of speech and association generally, those
protections are less robust in the prison context. See Pell, 417
U.S. at 822 (“[L]awful incarceration brings about the
necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying
our penal system.”). Moreover, placement in the CMU did
not force McGowan to give up all methods of
communication; it merely limited the frequency and amount.
Even assuming McGowan could make out a First Amendment
violation (an unlikely prospect), he certainly cannot show
Smith violated any clearly established right when he
recommended designation to the CMU.
Appellants then point to Smith’s decision to redesignate
McGowan to the CMU in 2011, alleging it was illegal
retaliation for McGowan’s exercise of protected speech.
But—after being returned to the general population—
McGowan asked his wife to have his attorney send him law-
enforcement sensitive documents, in an apparent attempt to
circumvent communications monitoring. It was reasonable
for an officer in Smith’s position to consider this attempted
end-run around the prison’s monitoring systems when
deciding whether redesignation would be prudent. Yet again,
even if McGowan could make out a First Amendment
46
violation here, he cannot meet the high bar of showing an
official in Smith’s position would have known his actions
violated a clearly established right. Smith is therefore entitled
to qualified immunity on all of appellants’ individual-capacity
claims. 18
VII.
In sum, we hold appellants’ claims were not mooted by
their transfer out of the CMU and they have a liberty interest
in avoiding transfer into the CMU. We therefore reverse the
grant of summary judgment on this claim and remand to the
district court to determine whether the government’s
procedures comport with due process as applied to
appellants.
With respect to Jayyousi’s First Amendment retaliation
claim, we hold he failed to establish any constitutional
violation and so cannot prevail. Appellants’ individual-
capacity claims against Lieutenant Smith survive his death
and, moreover, constitute claims for actual though intangible
harms that are neither mental nor emotional. Although these
claims are eligible to be brought under the PLRA, they too
fail because Smith is entitled to qualified immunity. For the
foregoing reasons, we affirm the district court’s grant of
summary judgment on both these claims.
So ordered.
18
Because we hold Smith is entitled to qualified immunity, and
therefore uphold the district court’s order dismissing all claims
against him, we need not consider the parties’ arguments regarding
substitution of a representative for the deceased.