Hamad v. Gates et al, No. 2:2010cv00591 - Document 131 (W.D. Wash. 2012)
Court Description: ORDER granting 123 Defendant's Motion to Dismiss by Judge Marsha J. Pechman.(MD)
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Hamad v. Gates et al Doc. 131 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ADEL HASSAN HAMAD, 11 12 13 14 CASE NO. C10-591 MJP Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS v. ROBERT M. GATES, Defendant. 15 16 This matter comes before the Court on Defendant’s motion to dismiss Plaintiff’s Fifth 17 Amendment Claim in the Second Amended Complaint (Dkt. No. 123). Having reviewed the 18 motion, the response (Dkt. No. 125), and the reply (Dkt. No. 126), the Court GRANTS 19 Defendant’s motion to dismiss. 20 Factual Background 21 Plaintiff Adel Hassan Hamad (“Hamad”) alleges Defendant Robert Gates (“Gates”) 22 violated his Fifth Amendment rights. Hamad is a fifty-two year old Sudanese citizen. Gates is a 23 United States citizen who owns property in Washington state and has been the United States 24 Secretary of Defense since December 2006. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 1 Dockets.Justia.com 1 As alleged in the Second Amended Complaint, Hamad was first seized in July 2002 2 while working as a humanitarian worker in Pakistan. Several men raided Hamad’s apartment in 3 Peshawar, Pakistan and took him to a local jail. Hamad was interrogated and later transported, 4 hooded and chained, to several detention facilities in Pakistan. In January 2003, Hamad was 5 transferred to the United States Air Force Base in Bagram, Afghanistan and, in March 2003, 6 Hamad was transferred once more, shackled, blind-folded, to Guantanamo Bay. In Guantanamo 7 Bay, Hamad was in part held in isolation and again interrogated by U.S. military officials. In 8 November 2004, a year and a half after Hamad’s arrival in Guantanamo, a Combatant Status 9 Review Tribunal (“CSRT”) was convened and, in March 2005, a divided CSRT determined 10 Hamad was an enemy combatant. (Id. at ¶¶ 72-74.) The panel’s decision was based on Hamad’s 11 employment with two humanitarian organizations for which he had done charity work. 12 Three to five months later, the military’s Administrative Review Board (“ARB”) 13 considered Hamad’s enemy combatant status, as part of its function to review CSRT procedures 14 annually. In November 2005, the ARB reversed the CSRT’s determination and held Hamad was 15 eligible for release back to the Sudan. But the ARB did not notify Hamad of its decision about 16 fifteen months later in February 2007. After he was notified, Hamad remained detained for ten 17 more months until the United States and the Sudan completed negotiations regarding his release. 18 Hamad was released to the Sudan on December 12, 2007, five and a half years after his initial 19 capture in Pakistan without ever having been charged with a crime. 20 Hamad alleges Gates violated his Fifth Amendment rights based on his five and a half 21 year detention. As Secretary of Defense beginning December 18, 2006, Gates’s tenure 22 overlapped with Hamad’s detention in Guantanamo for one year, including the time Hamad was 23 detained despite the ARB’s determination that there was no basis for his detention. Hamad 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 2 1 alleges Gates ordered, authorized, condoned, created methods and procedures for the abuses he 2 suffered from the date of his seizure until his release in December 2007. 3 4 Procedural Background In his First Amended Complaint, Hamad alleged Gates violated the Fifth Amendment as 5 the Secretary of Defense, which is the highest rank in the military command structure. 6 Specifically, Hamad alleged Gates “exercised command control over . . . the United States 7 detention facility at Guantánamo” and sued Gates for “ordering, authorizing, condoning, creating 8 methods and procedures for, exercising command responsibility over, conspiring with, aiding 9 and abetting subordinates, and/or directly or indirectly participating in the abuses of Plaintiff.” .” 10 (First Am. Compl. ¶ 24.) 11 The Court dismissed Hamad’s First Amended Complaint because Hamad failed to allege 12 Gates was personally involved in violating Hamad’s constitutional rights. (See Dkt. No. 121 at 13 13-14.) The Court reasoned Hamad’s complaint made conclusory statements rather than raised 14 factual allegations. Hamad’s allegations did not raise a reasonable expectation that discovery 15 would show Gates personally authorized or was deliberately indifferent to Hamad’s enemy 16 combatant hearings in Guantanamo. The Court granted leave to amend so that Hamad could 17 plead more than Gates exercised control over the United States military. (Id.) 18 In his Second Amended Complaint, Hamad added the following allegations: 19 1. By statute, Gates provides the Joint Chiefs of Staff with written policy guidance 20 regarding plans for homeland defense and military support to civil authorities. (Second 21 Am. Compl. ¶ 25.) 22 2. Several officials informed Gates that the military commissions in Guantanamo were 23 problematic. Specifically, in February 2007, Susan Crawford reviewed the military 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 3 1 commissions in Guantanamo and reported to Gates that the implementation of the 2 commissions was flawed. (Second Am. Compl. ¶ 111.) In addition, the Chief Prosecutor 3 for the Guantanamo military commissions sent Gates his resignation in October 2007, 4 concluding that full and fair trials were not possible. (Second Am. Compl. ¶ 112.) 5 3. In June 2007, one hundred and forty-one members of Congress copied Gates on a letter to 6 then-President George W. Bush alerting Bush that innocent men were being unlawfully 7 held at Guantanamo Bay. (Second Am. Compl. ¶ 112.) 8 4. Hamad’s habeas petition was pending in federal court in the District of Columbia when 9 Gates became the Secretary of Defense and was substituted as the Defendant. (Second 10 Am. Compl. ¶ 110.) 11 Analysis 12 1. Motion to Dismiss 13 Defendant seeks to dismiss Hamad’s Second Amended Complaint, arguing (1) Gates is 14 entitled to qualified immunity and/or (2) Hamad still fails to adequately plead Gates’s personal 15 involvement in the constitutional violation. The Court finds qualified immunity does not apply, 16 but agrees Hamad’s complaint is inadequately plead. 17 a. Qualified Immunity 18 Gates argues he is protected by qualified immunity. The Court disagrees. 19 “The doctrine of qualified immunity protects government officials ‘from liability for civil 20 damages insofar as their conduct does not violate clearly established statutory or constitutional 21 rights of which a reasonable person would have known.’” Pearson v. Callahan, 129 S. Ct. 808, 22 815 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether 23 qualified immunity applies, the Court has discretion in applying one or both steps of a two-step 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 4 1 inquiry set out in Saucier v. Katz, 533 U.S. 194, 201 (2001). Pearson, 129 S. Ct. at 818. The 2 two-step inquiry considers whether the plaintiff has alleged a violation of a constitutional right 3 and/or whether the right at issue was “clearly established” at the time of the alleged misconduct. 4 Id. at 815-16. To be “clearly established,” “[t]he contours of the right must be sufficiently clear 5 that a reasonable official would understand that what he is doing violates that right.” Anderson v. 6 Creighton, 483 U.S. 635, 640 (1987). In other words, the proper inquiry focuses on whether “‘it 7 would be clear to a reasonable officer that his conduct was unlawful in the situation he 8 confronted’ . . . or whether the state of the law [at the time] gave ‘fair warning’ to the officials 9 that their conduct was unconstitutional.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002). 10 Gates argues qualified immunity applies because there was a “lack of case law” 11 establishing the Due Process rights of Guantanamo detainees at the time Hamad was detained. 12 The Court finds Gates’s argument unpersuasive. First, to the extent Gates argues Boumediene 13 only recognized Guantanamo detainees’ habeas right and not their other constitutional claims, 14 the Court already rejected Gates’s argument in its earlier order. (See Dkt. No. 121 at 3-6.) In the 15 previous motion to dismiss, the Court found Boumediene struck down § 7 of the Military 16 Commissions Act in its entirety—both the MCA’s attempt to strip federal jurisdiction over 17 habeas petitions and the subsection that stripped federal jurisdiction over Bivens actions. (Id.) 18 As Boumediene held, the United States has de jure jurisdiction over Guantanamo. In other 19 words, the government cannot circumvent the Constitution by choosing to detain individuals in 20 Guantanmo Bay instead of within the United States. Since Boumediene recognizes 21 constitutional protections extend to Guantanamo detainees and Hamad’s detention was a clear 22 violation of a constitutional right, the Court finds qualified immunity does not apply. 23 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 5 1 Second, it would be clear to a reasonable official that Hamad’s prolonged detention 2 violated the Constitution. While Gates argues federal officials would not have known 3 constitutional protections apply in Guantanmo Bay, the argument misplaced. Gates’s argument 4 improperly focuses on the location of Hamad’s detention and ignores the fact that federal 5 officials themselves determined Hamad was eligible for release. Even if the legal framework 6 regarding enemy combatants in Guantanamo Bay was developing at the time, it is widely7 recognized that there is a constitutional right to be free from continued detention after it is or 8 should be known that a detainee is entitled to release. See Sivard v. Pulaski County, 959 F.2d 9 662 (7th Cir. 1992)(continued detention where sheriff knew it was wrongful states claim under § 10 1983 for due process violation); Cannon v. Macon County, 1 F.3d 1557 (11th Cir. 1993) (failure 11 to release after officer knew plaintiff had been misidentified gives rise to a § 1983 suit); Sanders 12 v. English, 950 F.2d 1152 (5th Cir. 1992)(same). It is fundamental to our legal system that an 13 individual “has a liberty interest in being free from incarceration absent a criminal conviction.” 14 Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th Cir. 2001). The fact that the government 15 chooses to detain someone in Guantanamo Bay and not in the United States does not eviscerate 16 this basic constitutional limit on government conduct. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 17 507 (recognizing a citizen’s constitutional right to contest his “enemy combatant” status). 18 Here, not only was Hamad never charged with a crime, the ARB itself found Hamad was 19 eligible for release in November 2005. Yet, no one told Hamad of the ARB decision until more 20 than a year later in February 2007 and Hamad remained detained until December 12, 2007. In 21 effect, Hamad was detained for two years after the military’s own review board determined there 22 was no basis for his detention. In conducting an ARB review, military officials were not only on 23 notice that their conduct was unconstitutional but apparently recognized Hamad had a liberty 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 6 1 interest in being free. This is not surprising given that “federal officials [are] cognizant of the 2 basic fundamental civil rights afforded to detainees under the United States Constitution.” 3 Padilla v. Yoo, 633 F.Supp.2d 1005, 1037 (N.D.Cal. 2009). The Court finds qualified immunity 4 does not apply because a reasonable official would have known, and it is likely military officials 5 here did know, that they were violating Hamad’s clearly established right by continuing to detain 6 Hamad well-after it was determined he was eligible for release. 7 Third, Hamad is not required to show the military officials’ conduct was previously 8 declared unconstitutional to survive a qualified immunity analysis. See Anderson, 483 U.S. at 9 640; Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001)(holding that a right can be clearly 10 established based on common sense in the absence of precedent directly on point). In fact, the 11 Supreme Court case Gates relies on stated a clearly established right “do[es] not require a case 12 directly on point.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011). Indeed, some violations 13 are so obvious that a defendant need not have a factually identical case to know that their 14 conduct violates the Constitution. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002)(reversing 15 grant of qualified immunity for prison officials who chained a prisoner to a post for seven hours). 16 The Court finds detaining an individual for years after having determined there was no basis for 17 his detention is surely a clear violation of an established right. 18 Finally, the Court finds D.C. case law on the issue of qualified immunity flawed. In 19 Rasul v. Myers (Rasul I), former Guantanamo Bay detainees sued the Secretary of Defense for 20 constitutional violations related to their detention. Rasul v. Myers (Rasul I), 414 F.Supp.2d 26 21 (D.D.C. 2006). When both parties appealed the D.C. court’s partial dismissal of Plaintiff’s 22 claims, the Supreme Court vacated the opinion and remanded “for further consideration in light 23 of [Boumediene].” Rasul v. Myers, 555 U.S. 1083 (2008). On remand, however, the D.C. 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 7 1 Circuit determined qualified immunity still applied after Boumediene because the Fifth 2 Amendment rights of detainees in Guantanamo were not clearly established at the time of 3 Rasul’s detention, i.e., pre-Boumediene. Rasul v. Myers (Rasul II), 563 F.3d 527 (D.C. Cir. 4 2009). 5 While the D.C. circuit has routinely applied Rasul II’s reasoning on qualified immunity 6 to preclude other constitutional claims by Guantanamo detainees, see, e.g., Ali v. Rumsfeld, 649 7 F.3d 762, 770 (D.C.Cir. 2011); Al-Janko v. Gates, 2011 WL 6440906 at *4 n.13 (D.D.C. Dec. 8 22, 2011), the Court declines to follow it. The Court finds Rasul II’s application of qualified 9 immunity is in tension with the Supreme Court’s directive in Boumediene. In vacating Rasul I, 10 the Supreme Court suggested Boumediene affected the analysis as to whether or not detainees 11 held in Guantanamo could assert constitutional rights. In fact, the Supreme Court specifically 12 recognized a Guantanamo detainee’s right to constitutional protections as early as 2004. See 13 Rasul v. Bush, 542 U.S. 466, 481 (2004)(finding jurisdiction existed over a Guantanamo 14 detainee’s habeas petition even though he was not a U.S. citizen). Since the Court finds the D.C. 15 Circuit’s adoption of Rasul II unpersuasive, the Court will not adopt it to preclude Hamad from 16 asserting his clearly established Fifth Amendment rights. 17 The Court finds Gates is not entitled to qualified immunity. Although Defendant argues 18 case law regarding Guantanamo detainees was unsettled at the time, it is indisputable that a 19 reasonable federal official would know that detaining a person, after determining he is eligible 20 for release, violates a clearly established constitutional right. 21 \\ 22 \\ 23 \\ 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 8 1 b. Personal Involvement 2 Gates argues Plaintiff’s Second Amended Complaint still fails to allege Gates was 3 personally involved in violating Hamad’s constitutional rights. In this limited respect, the Court 4 agrees. 5 To proceed with his Bivens claim, Hamad must allege facts indicating that Secretary 6 Gates was personally involved in and responsible for the alleged constitutional violations. Iqbal 7 v. Ashcroft, 129 S.Ct. 1937, 1948-49 (2009). “Because vicarious liability is inapplicable to 8 Bivens and § 1983 suits, a plaintiff must plead a plausible claim that each Government-official 9 defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 10 129 S.Ct. at 1948. The plausibility standard asks for more than a sheer possibility that a 11 defendant has acted unlawfully but is not akin to a “probability requirement.” Iqbal, 129 S.Ct. at 12 1949, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 13 Hamad’s allegation that Gates “knew” that there were innocent men being held at 14 Guantanamo Bay yet continued the policies of his predecessor is not a fact-based allegation; 15 rather, it is still a bald legal conclusion. While “legal conclusions can provide the framework of 16 a complaint,” to survive a motion to dismiss “they must be supported by factual allegations.” 17 Iqbal, 129 S.Ct. at 1950. The Court finds Hamad’s four added factual allegations are not enough 18 to meet Iqbal’s plausibility standard. 19 First, Hamad’s reliance on a statute setting forth the Secretary of Defense’s 20 responsibilities is weak. It is undisputed the Secretary of Defense provides policy guidance to 21 the Joint Chiefs of Staff regarding military operations. However, the general obligation to 22 provide policy guidance on military operations does not link Gates to the alleged constitutional 23 violation Hamad suffered. In other words, Hamad fails to allege any policy guidance that Gates 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 9 1 himself set regarding Guantanamo Bay let alone policy guidance that Gates set related to 2 Hamad’s unlawful detention. 3 Second, Hamad’s allegation that various officials evaluated and identified problems with 4 Guantanamo Bay’s military commissions is inapposite. Hamad was never charged with a crime 5 and, therefore, never prosecuted by the military commissions. Assuming Gates was aware of 6 these criticisms, Hamad’s reliance on Susan Crawford’s evaluation of Guantanamo in February 7 2007 and the Chief Prosecutor’s resignation, is misplaced. There is no factual allegation that 8 Gates knew military officials were holding detainees whom the military itself determined should 9 be freed. 10 Third, a letter from 145 Congressmen to then-President Bush does not plausibly suggest 11 Gates was personally involved in Hamad’s unlawful detention. Even though Gates was carbon 12 copied, the letter was not a Congressional mandate and was focused on Guantanamo’s closure, 13 not on issues of prolonged detention. To the extent it refers to “the indefinite detention of 14 innocent men,” it is only to argue the allegations “hurt [the U.S.’s] credibility as the beacon for 15 freedom and justice.” See Congress letter to Bush: Close Guantanamo, McClatchy, available at 16 www.mcclatchydc.com/2007/06/29/17486/congress-letter-tobrush-close.html (last visited March 17 23, 2012). While it is certainly possible that the letter put Gates on notice of constitutional 18 violations in Guantanamo Bay, the Court does not find the letter suggests it was plausible. See, 19 e.g., al-Kidd v. Ashcroft, 580 F.3d 949, 978-79 (9th Cir. 2009)(finding media reports and court 20 decisions did not plausibly put Ashcroft on notice of systemic problems at the Department of 21 Justice with respect to treatment of material witnesses). 22 Fourth, Hamad’s pending habeas petition does not create a reasonable expectation that 23 Gates was aware of Hamad’s unlawful detention and/or Gates personally violated Hamad’s 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 10 1 constitutional rights. Hamad’s habeas petition was first filed when Rumsfeld was Secretary of 2 Defense. Gates was automatically substituted as the Respondent when he took office in 2006 3 and Gates was sued in his official capacity. Under the Federal Rules, a Plaintiff suing an officer 4 sued in their official capacity need only serve the United States and mail a copy of the summons 5 and complaint to the official. Fed. R. Civ. P. 4(i)(2). The Court does not find it plausible that 6 Gates was aware of Hamad’s habeas petition since Gates was substituted as a Defendant and was 7 never personally served. 8 At most, Hamad’s factual allegations suggest Gates was aware Guantanamo Bay was 9 under scrutiny when he took office in September 2006. However, Hamad’s allegations do not 10 nudge his claim that Gates personally participated in his unlawful detention “across the line from 11 conceivable to plausible.” Iqbal, 129 S. Ct. at 1951. This point is more clear when comparing 12 Hamad’s claim to those alleged in Vance v. Rumsfeld, 694 F. Supp. 2d 957, 963 (N.D. Ill. 2010). 13 In Vance, the Plaintiff claimed Defendant Rumsfeld similarly “knew” torturous interrogation 14 techniques were used in Iraq but also alleged: (1) Rumsfeld personally approved the list of 15 interrogation techniques challenged, (2) convened a working group to establish interrogation 16 techniques, and (3) sent a subordinate to Iraq to review military detention procedures. 17 Here, there is no factual allegation that Gates implemented actual policies resulting in 18 Hamad’s prolonged detention. To the extent Hamad presents a memorandum from the Secretary 19 of Defense to the Joint Chiefs of Staff regarding the ARB process, Hamad’s reliance on the 20 memo is faulty. (Dkt. No. 125-1.) The memo is dated July 2006—i.e., several months before 21 Gates took office. In addition, the memo only suggests Gates’s predecessor, Rumsfeld, was 22 notified of the ARB decision ordering Hamad’s transfer in 2005. While Hamad argues Gates 23 must have received the memo, there is no allegation Gates was notified of all prior ARB 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 11 1 decisions under Rumsfeld--in fact, Hamad’s complaint does not refer to the memo at all—raising 2 other issues as to whether it is properly considered on a motion to dismiss. In any event, the 3 Court finds the memo does not suggest Gates’s personal involvement in Hamad’s constitutional 4 deprivation. 5 To the extent Hamad argues Gates is subject to supervisory liability, the Court finds 6 Hamad’s argument is weak. In the Ninth Circuit, a supervisor may be liable for the actions of 7 subordinates only if the supervisor is personally involved in the constitutional deprivation, or if 8 there is a sufficient causal connection between the supervisor’s wrongful conduct and the 9 constitutional deprivation. Hansen v. Black, 885 F.2d 642 (9th Cir. 1989). While “wrongful 10 conduct” may include a supervisor’s inaction or acquiescence in the constitutional deprivation, 11 the supervisor must still be aware of the unconstitutional conduct; otherwise, supervisory 12 liability would melt into vicarious liability—which is not recognized in Bivens actions. See 13 Iqbal, 129 S.Ct. at 1948; see also Hydrick v. Hunter (Hydrick II), 2012 WL 89157 (9th Cir. Jan. 14 12, 2012)(finding, even under a “deliberate indifference” theory of supervisory liability, a 15 plaintiff must allege sufficient facts to plausibly establish the defendant’s “knowledge of” and 16 “acquiescence in” the unconstitutional conduct of his subordinates). As discussed, there is 17 minimal factual allegation that Gates knew detainees were being unconstitutionally held in 18 Guantanamo Bay let alone Gates implemented policies resulting in Hamad’s constitutional 19 deprivation. While Gates may have known he inherited a flawed detention system, Hamad has 20 not alleged enough facts to suggest Gates knew detainees were being held in violation of the 21 Fifth Amendment and therefore is not liable under supervisory liability. 22 In sum, it is possible Gates knew Hamad was unlawfully detained, but it is not plausible 23 based on the facts alleged. Unfortunately, this is not enough to survive dismissal under Iqbal. 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 12 1 2 Conclusion The Court GRANTS Defendant’s motion and DISMISSES Hamad’s Fifth Amendment 3 claim. While the Court finds there is a clearly-established, constitutional right not to be detained 4 and qualified immunity does not apply, Gates’s personal involvement in Hamad’s detention is 5 not adequately plead. Hamad fails to allege facts that would plausibly suggest Gates was 6 personally liable for violations of his Fifth Amendment rights. The clerk is ordered to provide 7 copies of this order to all counsel. 8 Dated this 13th day of April, 2012. A 9 10 Marsha J. Pechman United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS- 13
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