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Rabbani v. Obama

United States District Court, D. Columbia.

December 19, 2014

MOHAMMAD AHMAD GHULAM RABBANI, Petitioner,
v.
BARACK OBAMA, et al, Respondents

For Abdul Raheem Ghulam Rabbani, Detainee, Petitioner: Adam S. Kaufmann, LEAD ATTORNEY, LEWIS BAACH PLLC, New York, N.Y. USA; John R. Holland, LEAD ATTORNEY, LAW OFFICES OF JOHN HOLLAND, Denver, CO USA; Agnieszka M. Fryszman, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, DC USA; Anna Cayton-Holland, Denver, CO USA; Barry J. Pollack, MILLER & CHEVALIER CHARTERED, Washington, DC USA; Clive A. Stafford Smith, R.J. REYNOLDS TOBACCO COMPANY, Winston Salem, NC USA; Erica T. Grossman, LAW OFFICES OF JOHN HOLLAND, Denver, CO USA; Reena Gambhir, HAUSFELD LLP, Washington, DC USA.

For Malika, as Next Friend of Abdul Raheem Ghulam Rabbani, Petitioner: John R. Holland, LEAD ATTORNEY, Erica T. Grossman, LAW OFFICES OF JOHN HOLLAND, Denver, CO USA; Agnieszka M. Fryszman, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, DC USA; Anna Cayton-Holland, Denver, CO USA; Avi Samuel Garbow, Arlington, VA USA; Clive A. Stafford Smith, R.J. REYNOLDS TOBACCO COMPANY, Winston Salem, NC USA; Matthew K. Handley, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS, Washington, DC USA; Reena Gambhir, HAUSFELD LLP, Washington, DC USA.

For Ahmmed Ghulam Rabbani, Detainee, Petitioner: Alka Pradhan, LEAD ATTORNEY, LEWIS BAACH PLLC, Washington, DC USA; Clive A. Staffordsmith, Cori Crider, LEAD ATTORNEYS, London, Uk; Elizabeth L. Marvin, Eric Leslie Lewis, LEAD ATTORNEYS, LEWIS BAACH PLLC, Washington, DC USA; Jon B. Eisenberg, LEAD ATTORNEY, Oakland, CA USA; Clive A. Stafford Smith, R.J. REYNOLDS TOBACCO COMPANY, Winston Salem, NC USA; Lisa Jaskol, Los Angeles, CA USA; Reena Gambhir, HAUSFELD LLP, Washington, DC USA.

For Fouzia Ahmmed, as Next Friend of Ahmmed Ghulam Rabbani, Petitioner: Avi Samuel Garbow, Arlington, VA USA; Clive A. Stafford Smith, R.J. REYNOLDS TOBACCO COMPANY, Winston Salem, NC USA; Matthew K. Handley, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS, Washington, DC USA; Reena Gambhir, HAUSFELD LLP, Washington, DC USA.

For Donald Rumsfeld, Secretary, United States Department of Defense, Respondent: Peter James McVeigh, Scott Michael Marconda, Terry Marcus Henry, Timothy Burke Walthall, LEAD ATTORNEYS, Andrew I. Warden, James J. Gilligan, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Alexander Kenneth Haas, U.S. DEPARTMENT OF JUSTICE, Washington, Dc; Kristina Ann Wolfe, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.

For Jay Hood, Army Brigadier General, Commander, Joint Task Force-GTMO, Respondent: Peter James McVeigh, Ronald James Wiltsie, Scott Michael Marconda, Terry Marcus Henry, Timothy Burke Walthall, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Alexander Kenneth Haas, U.S. DEPARTMENT OF JUSTICE, Washington, Dc; Kristina Ann Wolfe, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Andrew I. Warden, James J. Gilligan, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.

For Mike Bumgarner, Army Colonel, Commander, Joint Detention, Operations Group-JTF-GTMO, Respondent: Peter James McVeigh, Ronald James Wiltsie, Scott Michael Marconda, Terry Marcus Henry, Timothy Burke Walthall, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Alexander Kenneth Haas, U.S. DEPARTMENT OF JUSTICE, Washington, Dc; Kristina Ann Wolfe, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Andrew I. Warden, James J. Gilligan, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.

For Barack Hussein Obama, II, Respondent: James J. Schwartz, Timothy Burke Walthall, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA; Andrew I. Warden, James J. Gilligan, Olivia R. Hussey Scott, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.

For Associated Press, New York Times Company, USA Today, Movants: Jeanette Melendez Bead, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC USA.

Page 22

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge.

Before the Court is the petitioner's motion for a preliminary injunction [306] seeking to enjoin the respondents (hereinafter, the government) from force-feeding hunger-striking detainees held at the United States Naval Base at Guantanamo Bay, Cuba. Upon consideration of the petitioner's motion [306], the government's opposition [319], the petitioner's reply [320], the petitioner's and government's respective briefs regarding any claims remaining to be decided in this case [341, 344], the petitioner's status report [346] filed December 16, 2014, the applicable law, and the entire record herein, the Court will DENY the petitioner's motion for a preliminary injunction.

I. BACKGROUND

Petitioner Mohammad Ahmad Ghulam Rabbani is a Pakistani national who has been detained at Guantanamo Bay for more than ten years without ever having been charged with a crime. Pet'r's Mot. Prelim. Inj. 1. Since February 2013, Rabbani, along with other detainees, has engaged in a hunger strike to protest his detention. Id. In response to Rabbani's hunger strike, the medical staff at Guantanamo Bay determined that it was necessary to forcibly feed the petitioner through an enteral feeding process. See Resp't's Opp'n 5-6, 13-14, On occasions when Rabbani has refused either to walk voluntarily to his enteral feeding session or to return to his cell following a session, Guantanamo Bay guards have employed Forced Cell Extraction (" FCE" ) procedures to move the petitioner. Id. 15. Rabbani is not seeking to enjoin force feeding as a method for preventing death or serious bodily injury to hunger-striking detainees. Id. at 2 (The " [p]etitioner wishes to make clear that he is not seeking an injunction to permit him to continue his hunger strike until death." ). Instead, the thrust of Rabbani's grievance is that the enteral feeding

Page 23

process is unconstitutionally " forcible and violent." See Mot. 41.

Confronting a force-feeding fact pattern substantially similar to--if not even more " forcible and violent" than--Rabbani's, Judge Kessler recently denied a petitioner's motion for a preliminary injunction to enjoin the methods and protocols governing the force-feeding process at Guantanamo Bay. Dhiab v, Obama, No. 05 Civ. 1457, 74 F.Supp.3d 16, 2014 WL 5795483 (D.D.C. Nov. 7, 2014). Prior to Judge Kessler's Memorandum Opinion, Petitioner Dhiab had narrowed his claims to those concerning (1) the insertion and removal of a nasogastric tube; (2) the use of auscultation--" a procedure to ensure that the nasogastric tube is properly pushed into the stomach, rather than the lungs" ; (3) the use of a Five Point Restraint Chair during enteral feeding; (4) force-feeding in the absence of imminent risk; and (5) whether non-medical officials have final authority to allow force-feeding. Id. at *3, *5-* 10. In reaching the conclusion that Dhiab's petition was insufficient for a preliminary injunction. Judge Kessler evaluated the remaining force-feeding claims under the " deliberate indifference" standard established bye the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).[1] As Judge Kessler explained, the Estelle Court " ruled that in assessing whether the government has met its obligation to provide medical care for those whom it incarcerates, 'a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." ' Dhiab, 2014 WL 5795483, at *4 (quoting Estelle, 429 U.S. at 105).

Following Judge Kessler's denial of Dhiab's petition for a preliminary injunction, this Court ordered the parties to notify the Court of " what, if any, claims remain to be decided in this case that were not already addressed" by Judge Kessler in Dhiab. Order, Nov. 12, 2014, ECF No. 340. Petitioner Rabbani responded that the Court (1) " must decide whether this case implicates the Fifth Amendment due process right to refuse medical treatment," and (2) must determine whether FCEs are lawful. Pet'r's Notification 1, Nov. 19, 2014, ECF No. 341. On the Fifth Amendment question, Rabbani argues that Judge Kessler erred in using the Estelle deliberate indifference standard, and instead should have employed the standard of proof articulated in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In Turner, the Supreme Court held that " when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" Id. at 89 (emphasis added). Rabbani, therefore, largely seeks to relitigate the legal standard of proof at issue in Guantanamo Bay force-feeding cases. According to Rabbani, then, the FCE question as well as a new question regarding the government's purported refusal to test Rabbani for lipoid pneumonia, which Rabbani raises for the first time in a status report filed December 16, 2014, are the only remaining fact-based inquiries not addressed by Judge Kessler in Dhiab.[2]

Page 24

II. LEGAL STANDARD


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