United States District Court, District of Columbia
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Nashwan Al-Ramer Abdulrazzaq, a male Iraqi citizen detained
at a prison facility in Guantanamo Bay, Cuba
(“Guantanamo”), is awaiting trial before a
military commission on non-capital charges of Denying
Quarter, Attacking Protected Property, Using Treachery or
Perfidity, Attempted Use of Treachery or Perfidity, and
Conspiracy to Violate the Laws of War. Mot. to Dismiss
Pet'r's Second Am. Pet. for a Writ of Habeas Corpus
(“Mot. to Dismiss”), ECF No. 47 at
November 29, 2017, Petitioner filed a Second Amended Petition
for a Writ of Habeas Corpus, raising four claims: (1) the
conditions of his confinement at Guantanamo violate the
Eighth Amendment; (2) the structure of the military
commissions process violates the Due Process Clause of the
Fifth Amendment (“conflict-of-interest” claim);
(3) discrimination against him by reason of his nationality
in violation of the equal protection guarantees in the Fifth
Amendment (“equal protection” claim); and (4)
violation of his right to counsel guaranteed by the Sixth
Amendment and the Military Commissions Act
claim). Pet'r's Opp'n to Resp'ts' Mot. to
Dismiss Pet'r's Second Am. Pet. for a Writ of Habeas
Corpus, (“Opp'n”), ECF No. 59 at 6-7.
before the Court is the Respondents' motion to dismiss.
Respondent argues that Petitioner has failed to state an
Eighth Amendment claim, and that the Court lacks jurisdiction
to consider the Petitioner's conflict-of-interest, equal
protection, and interference-with-counsel-communications
claims. In the alternative, Respondent argues that the court
should abstain from deciding these three claims at this time.
Upon careful consideration of the parties' submissions,
the applicable law, and for the reasons discussed below, the
Court GRANTS IN PART and HOLDS IN
ABEYANCE IN PART Respondents' Motion to Dismiss.
Petitioner's Eighth Amendment claim is
DISMISSED. Petitioner's remaining claims
are HELD IN ABEYANCE. Since the Court will
abstain from resolving the merits of those claims pending the
ultimate conclusion of the military commission proceedings,
all proceedings relating to those claims are
Petitioner's Medical Condition
following facts are alleged in Petitioner's Second
Amended Petition for Writ of Habeas Corpus. Petitioner has
been in the custody of the United States since 2006, first at
one or more “black sites, ” and then at
Guantanamo since April 2007. Second Am. Pet., ECF No. 164
¶ 9. Petitioner's medical records show that
“he has sought treatment for chronic and worsening back
pain” throughout his detention. Id. ¶ 18.
A computerized tomography scan (“CT scan”) taken
in 2008 showed “degenerative disc disease between the
L4 and L5 vertebrae.” Id. At that point,
Petitioner's recurring back pain was deemed chronic.
Id. In May 2008, an examination noted that he
“seemed unsteady while standing” and in June
2008, his “back pain had increased to include pain that
radiated down his right leg.” Id. In August
2008, his doctors noted that he “‘expressed
concerns about the current back pain and the length of
time' it has taken to resolve the issue.”
Id. Petitioner “continued to seek treatment
through 2008 and into 2009.” Id. ¶ 19. In
August 2009, he reported experiencing “flare-ups and
pain radiating from his back to his left leg.”
Id. As a result, medical examiners “performed
various diagnostic tests, but failed to cure the ailment or
the pain.” Id. “X-rays and CT scans
continued to show degenerative disc disease.”
Id. “Throughout 2010, Petitioner continued to
be seen for chronic back pain [and] [i]n June 2010, he again
reported pain that ran down the side of his leg.”
Id. “Throughout 2010, he received physical
therapy, traction table therapy, and regular treatments with
a Transcutaneous Electrical Nerve Stimulator unit.”
Id. ¶ 21. However, “[t]hese therapies and
treatments were ineffective.” Id.
September 2010, Petitioner was diagnosed with spinal
stenosis, “an abnormal narrowing of his spinal
canal” which can result in pain and “neurological
deficits such as numbness and loss of motor control.”
Id. ¶ 22. As a result of this diagnosis,
“a doctor proposed the possibility of surgery, though
none was performed.” Id. In November 2011,
“Petitioner was again diagnosed with lumbar spine disc
herniation and spinal stenosis, ” reporting “pain
radiating to his right buttock.” Id. ¶
23. Petitioner continued to experience and be seen for
chronic low back pain throughout the remainder of 2011 and
2012. Id. ¶¶ 23, 24. In January 2012, he
“reported low back pain radiating to his left
thigh” and in September 2012, “sharp pain
radiating from his back toward his left knee.”
Id. ¶ 24. Doctors ordered testing, “but
it is not clear from the medical records whether that testing
was performed.” Id. “In November 2012,
[Petitioner] continued to report radiating pain from his low
back down through his thighs, but for the first time,
reporting feeling ‘pins and needles sensations' in
his toes.” Id. ¶ 25.
2013 and 2017, “Petitioner's condition continued to
degrade and he continued to suffer from back pain.”
Id. ¶ 26. On January 9, 2017, Petitioner was
subjected to “forcible cell extraction”
(“FCE”) with “no accommodation . . . made
for his long-standing spinal and nerve diseases, well-known
to Guantanamo personnel . . . after which his lower back pain
symptoms noticeably increased.” Id. ¶ 27.
January 23, 2017, another CT scan was performed revealing
Petitioner's increased degeneration of the spine.
Id. ¶ 28. “It was at this time, many
years into Petitioner's history of accelerating symptoms,
that an MRI was first proposed.” Id.
Independent medical experts informed Petitioner and
Respondents that Petitioner's spinal condition, “if
left untreated, could cause severe and permanent neurological
impairment.” Id. However, “Guantanamo
personnel left this condition untreated for approximately 9
months by which time severe and permanent neurological
impairment had either occurred or was imminent.”
August 2017, Petitioner “began to experience an
increase in the loss of sensation in both feet . . .
increased loss of sensation in both hands and both legs . . .
increase in his muscle weakness . . [and] an increase in the
level, sharpness, and frequency of his pain.”
Id. ¶ 29. On August 10, 2017, following a
medical examination, “[t]he doctor determined that
Petitioner's deteriorating condition required
transportation to the hospital for additional tests. Some
tests were conducted, but, apparently, a prescribed CT scan
could not be performed because the hospital staff failed to
properly inject intravenous contrast dye for the exam.”
Id. ¶ 31.
September 1, 2017, counsel for Petitioner addressed an
“Emergency Request for Expert Assistance-Neurological
Surgery” memorandum to Respondents. Id. ¶
34. “The memorandum described the inability of
Petitioner to obtain urgently needed medical care, the
inability of Petitioner or his counsel to obtain current
medical records concerning his status or care, and requested
the intervention of the Convening Authority to appoint an
independent medical specialist able to diagnose
Petitioner's condition and recommend treatment.”
Id. ¶ 34. The memorandum was supported by a
letter from doctors associated with Physicians for Human
Rights who opined that Petitioner needed immediate emergency
attention. Id. ¶ 35.
September 5, 2017, a surgical team was flown to Guantanamo in
the midst of Hurricane Irma to perform emergency back surgery
on Petitioner. Id. ¶¶ 36-37.
Military Commission Proceedings
2, 2014, the Convening Authority referred the charges against
the Petitioner to a military commission for trial, Mot. to
Dismiss, ECF No. 47 at 17, and pretrial proceedings have been
ongoing since that time, Resp't Opp'n to
Pet'r's Mot. to Lift Stay and for Prelim. Inj., ECF
No. 149 at 6. Petitioner's trial is scheduled to begin
September 19, 2020. Id. at 7. Petitioner has raised
his equal protection, conflict-of-interest, and
interference-with-counsel-communications claims with the
military judge in motions during pretrial proceedings and
received adverse rulings on each. Mot. to Dismiss, ECF No. 47
at 8, Reply; ECF No. 62 at 4.
Standard of Review
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). The court will dismiss a claim if the
complaint fails to plead “enough facts to state a claim
for relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). A complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief, ” Fed.R.Civ.P. 8(a)(2), “in
order to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests, ”
Twombly, 550 U.S. at 555 (citation and internal
quotation marks omitted).
complaint survives a Rule 12(b)(6) motion only if it
“contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw [a]
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint alleging
facts which are “‘merely consistent with' a
defendant's liability . . . ‘stops short of the
line between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).
Eighth Amendment Claim
Petitioner Fails to State an Eighth Amendment Claim
alleges long-standing and deliberate indifference to his
serious medical needs in violation of the Eighth Amendment.
Opp'n, ECF No. 59 at 6. There is no dispute as to whether
this claim is properly before the Court: a person “in
custody may challenge the conditions of his confinement in a
petition for habeas corpus . . . ” Aamer v.
Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014).
Eighth Amendment prohibits the infliction of “cruel and
unusual punishments.” U.S. Const. amend. VIII.
“[T]he government [is] obligat[ed] to provide medical
care for those whom it is punishing by incarceration.”
Estelle v. Gamble, 429 U.S. 97, 103 (1976). The
Supreme Court therefore has “conclude[d] that
deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain' proscribed by the Eighth Amendment.”
Id. at 104 (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1962)).
state a claim for an Eighth Amendment violation, Petitioner
must allege that the Guantanamo officials: (1) knew that
Petitioner “face[d] a substantial risk of serious
harm”; and (2) “disregard[ed] that risk by
failing to take reasonable measures to abate it.”
Farmer v. Brennan, 511 U.S. 825, 847 (1994). The
risk of “serious inmate harm” must be dire:
“a condition of urgency, one that may produce death,
degeneration, or extreme pain.” Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). With regard to
the second prong, “a prison official must have a
‘sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834. “In prison condition
cases that state of mind is one of ‘deliberate
indifference' to inmate health or safety.”
Id. (citing Wilson v. Seiter, 501 U.S. 294,
302-303 (1991)). The test for “deliberate
indifference” is a subjective one:
a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.
Id. at 837. This state of mind is more blameworthy
than negligence. Id. at 835 (citing
Estelle, 429 U.S. at 104).
not the case, however, “that every claim by a prisoner
that he has not received adequate medical treatment states a
violation of the Eighth Amendment”:
[I]n the medical context, an inadvertent failure to provide
adequate medical care cannot be said to constitute “an
unnecessary and wanton infliction of pain” or to be
“repugnant to the conscience of mankind.” Thus, a
complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim
of medical mistreatment under the Eighth Amendment. Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner. In order to state a
cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate ...