Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FAHAD v. U.S.

November 8, 2005.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et. al., Petitioners,
v.
UNITED STATES OF AMERICA, et al., Respondents.



The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY, District Judge

MEMORANDUM OPINION

Although an emergency motion to amend the present Motion for Preliminary Injunction was raised orally by Petitioner Al Odah's counsel during a joint conference call on November 8, 2005, requesting that Petitioner Al Odah be transferred via immediate medical evacuation to another medical facility based on a further decrease in his weight and altered potassium levels since the pleadings presently under review were filed, the Court will treat Petitioner Al Odah's request for immediate medical evacuation separately from the filed pleadings in this Motion for Preliminary Injunction.

Petitioners Fawzi Al Odah and Abdulaziz Al Shammari filed [260] Plaintiffs-Petitioners' Motion for Preliminary Injunction to Compel Defendants-Respondents to Provide Access to Medical Records, Timely Reports, and Direct Communications with Family Members Regarding Two Force-Fed Plaintiffs-Petitioners who are in Danger of Dying, and Request for Expedited Consideration ("Motion for Preliminary Injunction") on October 21, 2005,*fn1 asking the Court to compel Respondents to provide access to Petitioners' medical records, to give timely reports of Petitioners' medical condition, and to allow direct communications between Petitioners and family members. On November 4, 2005, Respondents filed [270, 271] Respondents' Notice of Transfer and Supplemental Response to Petitioners' Motion for Preliminary Injunction (Dkt. No. 260), stating that with respect to Petitioner Al Shammari, "the United States has relinquished custody and [Petitioner has] been transferred to the control of the government of Kuwait." Resp'ts' Notice Transf. at 1. Thus Petitioner Al Shammari's requests in the Motion for Preliminary Injunction are rendered moot. After careful consideration of Petitioners' Motion for Preliminary Injunction, [264] Respondents' Opposition to Petitioners' Motion for Preliminary Injunction ("Opposition"), and [266] Plaintiffs-Petitioners' Reply to Respondents' Opposition to Plaintiffs-Petitioners' Motion for Preliminary Injunction ("Reply"), the Court hereby denies without prejudice Petitioner Al Odah's requests.

  I: BACKGROUND

  Petitioner Fawzi Al Odah is a Kuwaiti citizen presently held at Guantanamo Bay by the United States government as an enemy combatant. Petitioner has participated in a hunger strike since August 8, 2005. Pet'rs' Mot. Prelim. Inj. at 8.

  Petitioner filed a request for a temporary restraining order with the Court on September 19, 2005, seeking judicial oversight and family communications regarding the force-feeding of Petitioner and requesting that the Court hold a hearing allowing Petitioner to present facts to "persuade the Court to order the government to (i) provide it and counsel with periodic reports and access to medical records and (ii) order direct communications with family members." Petitioner's and both the Court and Respondents received sealed courtesy copies of said motion on October 21, 2005 such that the parties have agreed that October 21, 2005 will be considered the date of filing for the purposes of preliminary injunction filing deadlines set forth in D.C. Local Rule 65.1(c) and (d). request for a temporary restraining order and hearing was denied by the Court on September 30, 2005. The Court's [254] Memorandum Opinion related to its [253] Order denying Petitioner's request for a temporary restraining order further details the factual and procedural history surrounding Petitioner's initial hunger strike-related request for judicial relief.

  After the Court denied Petitioner's request for a temporary restraining order, Petitioner's counsel visited Petitioner in Guantanamo Bay on October 10, 2005. Pet'rs' Mot. Prelim. Inj. at 8. Following this trip, Petitioner's counsel filed the present Motion for Preliminary Injunction on October 21, 2005. While the requests contained in the present Motion for Preliminary Injunction are similar to those contained in Petitioner's denied request for a temporary restraining order and hearing, Petitioner alleges that Petitioner's counsel's visit uncovered "new facts showing that an emergency exists warranting the Court's intervention [that] have come to light since the Court denied [Petitioner's] previous request for a temporary restraining order." Pet'rs' Mot. Prelim. Inj. at 1.

  A. Petitioner's Allegations

  As a general matter, Petitioner states that he "ha[s] fallen into a downward spiral of weight loss, vomiting, and diarrhea that may lead to [his] deat[h]." Pet'rs' Mot. Prelim. Inj. at 1. Petitioner attributes his present medical condition to improper medical care during his detention. Id. at 3.

  Petitioner alleges that the government's protocols are inadequate and being harmfully applied to Petitioner. Id. at 2. Petitioner alleges that he is being forcibly fed by guards rather than medical personnel. Id. at 1, 2, 9. Petitioner further alleges that the forceful manner in which he has been treated during the insertion of feeding tubes has caused further injury to his health. See id. at 8 ("[A] nurse shoved a tube up [Petitioner's] nose so quickly that he began choking, bleeding from the nose, and spitting blood."). In his signed declaration dated October 10, 2005, Petitioner further claims that an anesthetic was not used when his nasal tube was inserted and that the guards inserting such tubes on a regular basis did not wear surgical gloves. Id. at Exh. C ¶¶ 10, 12.

  Petitioner also alleges that there was a delay in the onset of his treatment. Petitioner alleges that while he began participating in the hunger strike on August 8, 2005, he did not receive medical care or counseling until August 25 or 26, at which point he "could not move." Id. at 8. Petitioner furthermore alleges that now that he is being medically treated, he is infrequently examined by physicians despite his symptoms and fragile condition, and that more frequent examination and blood testing is medically necessary. Id. at 2, 9, 12.

  Petitioner further alleges that the fact of his extreme weight loss is further indication of his inadequate medical treatment. Id. at 1, 8-9. Petitioner states that his weight has dropped from 139 pounds three years ago to 118 pounds at the beginning of September to 112 pounds at the end of September, which he confirms via the government medical record proffered as Exhibit H. Id. at 8-9, Exh. H.

  B. Government's Response to Petitioner's Allegations

  In their Opposition, Respondents refute Petitioner's allegations regarding protocols and actual treatment of Petitioner as well as the onset and frequency of care. While Respondents do not refute Petitioner's weight loss as established in a government medical record by Petitioner as Exhibit H, Respondents maintain that Petitioner has received "comprehensive medical care and that the Guantanamo staff takes medically appropriate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.