Yassin Aref v. Loretta Lynch

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

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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.

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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.

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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

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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

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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

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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.

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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.

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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.