Respondents Brief — Murtaza Ali, Petitioner v. Joe M. Allbaugh, Director, Oklahoma Department of Corrections, et al.

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Case No. 17-8432

IN THE SUPREME COURT OF THE UNITED STATES

MURTAZA ALI,

Petitioner,

JOE M. ALLBAUGH, DIRECTOR, ET AL.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

MIKE HUNTER

ATTORNEY GENERAL OF OKLAHOMA

CHARLES DICKSON

DESIREE SINGER

ASST. ATTORNEYS GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

COUNSEL OF RECORD

MICHAEL K. VELCHIK

RANDALL YATES

ASST. SOLICITORS GENERAL

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE TWENTY-FIRST ST.

OKLAHOMA CITY, OK 73105

mithun.mansinghani@oag.ok.gov

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Petitioner’s Imprisonment for Multiple Crimes. . . . . . . . . . . . . . 2

The Noble Quran. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Respondents Deny Petitioner’s Request. . . . . . . . . . . . . . . . . . . . 7

Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

REASONS THE PETITION SHOULD BE DENIED. . . . . . . . . . . . . . . . . . . . . 15

There Is No Division Among The Courts Of Appeals On The

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II.

Petitioner’s Claims Of Erroneous Factual Findings Or A

Misapplication of Settled Law Do Not Warrant Certiorari.. . . . . . . . 19

III.

The Tenth Circuit’s Decision Was Correct. . . . . . . . . . . . . . . . . . . . . . . 22

Petitioner’s RLUIPA Claim is Moot. . . . . . . . . . . . . . . . . . . . . . . . 22

The Tenth Circuit Correctly Applied Turner to

Petitioner’s First Amendment Claim.. . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

TABLE OF AUTHORITIES

CASES

Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury,

686 F.3d 965 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Ali v. Dinwiddie,

291 Fed. App’x 164 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ali v. Dinwiddie,

437 Fed. App’x 695 (10th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ali v. Province,

466 Fed. App’x 703 (10th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ali v. Province,

550 Fed. App’x 619 (10th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Ali v. Ranklin,

554 Fed. App’x 702 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ali v. Taylor,

528 Fed. App’x 918 (10th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Alvarez v. Hill,

667 F.3d 1061 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Aref v. Lynch,

833 F.3d 242 (D.C. Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ashcroft v. Iqbal,

556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

Beauchamp v. Murphy,

37 F.3d 700 (1st Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Beerhide v. Suthers,

286 F.3d 1179 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Block v. Rutherford,

468 U.S. 576 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29

Borzych v. Frank,

439 F.3d 388 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Burton v. Frank,

No. 03-C-0374, 2004 WL 1176171 (W.D. Wis. May 20, 2004). . . . . . . . . . 20, 28

Butts v. Martin,

877 F.3d 571 (5th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Carpenter v. Wilkson,

946 F. Supp. 522 (N.D. Ohio 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ciempa v. Jones,

745 F. Supp.2d 1171 (N.D. Okla. 2010), aff’d,

511 Fed. App’x 781 (10th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

City of Mesquite v. Aladdin’s Castle Inc.,

455 U.S. 283 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Davis v. Shields,

No. 1:17-CV-1347-P, 2017 WL 7051213 (W.D. La. Dec. 28, 2017). . . . . . . . . . 7

Derrick v. Ward,

91 Fed. App’x 57 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Doty v. Lewis,

995 F. Supp. 1081 (D. Ariz. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Easterling v. Pollard,

528 Fed. App’x 653 (7th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Ford v. Bender,

768 F.3d 15 (1st Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25

Galab v. Hogsten,

No. 4:CV-06-1027, 2007 WL 1238562 (M.D. Pa. Apr. 26, 2007). . . . . . . . 26, 27

Garraway v. Lappin,

No. 4:CV-10-1697, 2012 WL 959422 (M.D. Pa. Mar. 21, 2012). . . . . . . 6, 17, 22

Gee v. Pacheco,

627 F.3d 1178 (10th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gillon v. Fed. Bureau of Prisons,

No. 09-CV-0, 2530-ZLW, 2010 WL 2711389 (D. Colo. July 7, 2010). . . . . . . . 7

Goninan v. Holmes,

No. 6:12-CV-01555, 2014 WL 6966990 (D. Or. Dec. 4, 2014). . . . . . . . . . . . . 20

iii

Green v. Branson,

108 F.3d 1296 (10th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Green v. Sneath,

508 F. App’x 106 (3d Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22

Harbin-Bey v. Rutter,

420 F.3d 571 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Heyer v. United States Bureau of Prisons,

849 F.3d 202 (4th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hoffman v. Thaler,

539 Fed. App’x 507 (5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Holland v. Goord,

758 F.3d 215 (2d Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Honig v. Doe,

484 U.S. 305 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Hudson v. Palmer,

468 U.S. 517 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Iqbal v. Hasty,

490 F.3d 143 (2d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Johnson v. Williams,

No. 3:07-CV-1659, 2011 WL 6778711 (D. Or. Dec. 22, 2011). . . . . . . . . . . . . 20

Jones v. State,

134 P.3d 150 (Okla. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Jones v. Williams,

791 F.3d 1023 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Los Angeles v. Lyons,

461 U.S. 95 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

McCabe v. Arave,

827 F.2d 634 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

McCorkle v. Jonson,

881 F.2d 993 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Murphy v. Hunt,

455 U.S. 478 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Murphy v. Mo. Dep't of Corr.,

814 F.2d 1252 (8th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Nordstrom v. Ryan,

856 F.3d 1265 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Northern v. Nelson,

315 F. Supp. 687 (N.D. Cal. 1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Overton v. Ohio,

534 U.S. 982(2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

O’Lone v. Shabazz,

482 U.S. 342 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

O’Shea v. Littleton,

414 U.S. 488 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Pfeil v. Lampert,

603 Fed. App’x 665 (10th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Plummer v. Riley,

720 Fed. App’x 144 (4th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Polk v. Olles,

No. 12-CV-01106S(F), 2015 WL 10381751 (W.D.N.Y. Dec. 29, 2015). . . . . . . 6

Prison Legal News v. Sec’y Fla. Dep’t of Corr.,

890 F.3d 954 (11th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ramadan v. Fed. Bureau of Prisons,

No. 1:14-25757, 2015 WL 5684126 (S.D.W. Va. Sept. 28, 2015). . . . . . . . . 4, 22

Riker v. Lemmon,

798 F.3d 546 (7th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Riley v. INS,

310 F.3d 1253 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ruley v. Stovall,

No. 10-CV-142, 2012 WL 1038665 (E.D. Ky. Mar. 27, 2012).. . . . . . . . . . . . . 20

Scott v. District of Columbia,

139 F.3d 940 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Selby v. Caruso,

734 F.3d 554 (6th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sharp v. Johnson,

669 F.3d 144 (3d Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sisney v. Kaemingk,

886 F.3d 692 (8th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sossamon v. Texas,

131 S. Ct. 1651 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 23

Sutton v. Rasheed,

323 F.3d 236 (3d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Thornburgh v. Abbot,

490 U.S. 401 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 26, 29

Turner v. Safley,

482 U.S. 78 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

United States v. Sedaghaty,

728 F.3d 885 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Warner v. Patterson,

534 Fed. App’x 785 (10th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 24

Weinstein v. Bradford,

423 U.S. 147 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27

Winford v. Frank,

2008 WL 359728 (E.D. Wis. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Wirsching v. Colorado,

360 F.3d 1191 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES

21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1915A(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

42 U.S.C. § 2000cc-2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

REGULATIONS

28 C.F.R. § 540.71.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

OTHER AUTHORITIES

Confronting the Ideology of Radical Extremism,

3 J. Nat’l Security L. & Pol’y 301 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Do Unalienable Rights Apply to All? Extreme Shari’a Law and How United

States Foreign Policy Towards Iran and Afghanistan Has Fueled Its

Spread,

6 Regent J. Int’l L. 191 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

vii

QUESTIONS PRESENTED

Petitioner pled guilty to involvement in two murders and drug trafficking. While

in prison, he requested a copy of “The Noble Quran,” an English-language text recognized by Islamic scholars to contain an extremist translation of the Quran, supplemented by parentheticals, footnotes, and appendices with anti-Semitic and antiChristian commentary that promote violence. The publication is widely known to be

distributed by terrorist organizations.

The Oklahoma Department of Corrections denied Petitioner’s request upon the

recommendation of the prison chaplain and after consultation with representatives

from the local Muslim rights advocacy group, who agreed with the decision. The Department concluded that the requested document contained extremist literature that

was likely to incite violence in the prison. The Department made available other

translations of the Quran, including an Arabic version. The Department also permitted Petitioner to purchase and possess any other translation of the Quran except “The

Noble Quran.” Petitioner was later found to have possessed a copy in his cell, apparently in coordination with an unauthorized prison visitor. Petitioner has since been

released from jail and currently resides in the United Arab Emirates.

The questions presented are:

1. Whether Petitioner’s claims for injunctive relief under the Religious Land Use

and Institutionalized Person Act (RLUIPA) are moot because he no longer is

in Department custody.

2. Whether the Department’s actions violated the First Amendment.

STATEMENT

A. Petitioner’s Imprisonment For Multiple Crimes.

1. Murtaza Mohammed Ali is a citizen of the United Arab Emirates who entered

the United States at some point between 1995 and 1996.1 “A few days before September 15, 2002, Murtaza Ali and Shafi Ahmed asked Wesley Jones to kill the owner of

the Lucky Trip convenience store, Mohamed Rahaman.” Jones v. State, 134 P.3d 150,

153 (Okla. Crim. App. 2006). Then, “[o]n September 15, Ali drove Jones to the store

and identified Rahaman.” Id. “Jones walked into the store, waited a few moments”

and “then approached the counter and shot and killed Rahaman.” Id. When a customer “standing nearby, grabbed Jones, [he] also shot and killed him.” Id. “Jones then

… ran around the corner to Ali’s waiting car and fled.” Id. Ali ultimately pled guilty

to two amended counts of Accessory After the Fact First Degree Murder and was

sentenced to serve two concurrent twenty-five year sentences in the Oklahoma Department of Corrections (“Department”). Pet.App.C1.

While in prison, authorities discovered that Ali had been involved in a drug trafficking conspiracy that had been ongoing since 1996, when Ali entered the country.

United States v. Ali, No. 4:03-cr-179, Doc. 65 at 7 (N. D. Okla. July 9, 2004) (“Plea

Agreement”). In coordination with at least two other individuals, he had operated a

Complaint at 1, Ali v. Bureau of Prisons, No. 1:17-cv-02293 (D.D.C. Jan. 2, 2018)

(“The Plaintiff Murtaza Ali … is a citizen of the United Arab Emirates who presently

resides at P.O. Bo [sic] 60565, Sharjah U.A.E.”); Motion for Summary Judgment and

Brief in Support at Exhibit 1 at 5 (entered July 5, 2013), Ali v. Dinwiddie, No. 07-cv059 (N.D. Okla. Sep. 24, 2013) (Plaintiff was born in 1978 and claims he entered the

United States at age seventeen).

ring of pseudoephedrine distribution through wholesaler distributors and local convenience stores. Id. In 2004, Ali pled guilty to conspiracy under 21 U.S.C. § 846. Plea

Agreement at 1.

Ali ultimately served time in Oklahoma state prison from January 30, 2004 to

December 11, 2014, and then in federal prison until November 10, 2015. Pet.App.C1;

Doc. 48-2 at 1. Upon being discharged from federal prison, Ali was detained in the

custody of U.S. immigration authorities until his removal from the country in the

spring of 2017. Petitioner currently resides in the United Arab Emirates. Pet. i; supra

note 1.

B. The Noble Quran.

1. While in Department custody, on May 27, 2014, Petitioner ordered a copy of

The Noble Quran. See Pet.App.C8. The Noble Quran is a specific English translation

of the Quran, with accompanying commentary, that scholars have stated “reads more

like a supremacist Muslim, anti-Semitic, anti-Christian polemic than a rendition of

the Islamic scripture.” Pet.App.C22 (quoting Professor Khaleel Mohammed). “[T]his

particular translation of the Quran ‘seriously distorts the concept of jihad,’” and “is

found ‘on Muslim extremist sites.’” Pet.App.C22 (quoting essay in The American Muslim). As one national security report explains, “[r]adical literature and extremist

translations and interpretations of the Qur’an have been distributed to prisoners by

groups suspected or known to support terrorism,” and the report specifically identifies “The Noble Qur’an, a Wahabbi/Salafist version written in English” as one such

text. FRANK CILLUFFO ET AL., OUT OF THE SHADOWS: GETTING AHEAD OF PRISONER RADICALIZATION 6 (2006).2

2. The authors of The Noble Quran insert their own commentary into the text of

the Quran in several ways. First, they use parentheticals in the main text to suggest

extremist conclusions not present in the original. Ramadan v. Fed. Bureau of Prisons,

No. 1:14-25757, 2015 WL 5684126, at *4 (S.D.W. Va. Sept. 28, 2015) (“This version of

the Quran, called the Nobel Quran or Hilali-Khan translation, is a controversial

translation of the Quran that many believe contains radical notes and parentheticals

associated with Jihad.”).3 For example, the opening chapter of The Noble Quran in

verse 1:1-7 asks God to lead the reader “not on the path of those who have incurred

your wrath (such as the Jews), or those who have gone astray (such as the Christians)” (emphases added)—inserting the emphasized parentheticals into the text,

which is absent from other English translations.4 And in verse 47:4, which speaks of

Available at https://cchs.gwu.edu/sites/g/files/zaxdzs2371/f/downloads/HSPI_Report_8.pdf. See also, e.g., Galab v. Hogsten, No. 4:CV-06-1027, Doc. 9-3 at 16 (M.D.

Pa. Apr. 26, 2007) (Memorandum from J. Beadle, Chaplain) (“The Noble Quran … is

not considered to be a faithful translation.”); Zaidan Ali Jassem, The Noble Quran: A

Critical Evaluation of Al-Hilali and Khan’s Translation, 3 INT’L J. OF ENGLISH &

EDUC. 237, 270-71 (2014) (“[T]he translation suffers from countless weaknesses on all

counts of linguistic study … [i]n short, the translation needs to be entirely revised.”).

3 Cf. MARK JUERGENSMEYER ET AL., THE OXFORD HANDBOOK OF RELIGION AND VIOLENCE 483 (2013) (The Noble Quran uses “sustained interpolations to insert the interpretation of the Bin Baz school directly into the English rendition of the Qur’an. It

was … used to inculcate Muslims and potential Muslims with militant interpretations of Islam artfully disguised, through parenthesis, as teachings of the Qur’an pure

and simple.”).

4 Cf. Caryle Murphy, For Conservative Muslims, Goal of Isolation a Challenge, WASHINGTON POST (Sept. 5, 2006) (“Many local Muslims were particularly embarrassed by

commentary that disparaged Jews and Christians even though neither group is mentioned in the original Arabic. ‘The outcry was so great. … People were disgusted,’ said

Imad-ad-Dean Ahmad, head of Bethesda’s Minaret of Freedom Institute, an Islamic

duties in war, the Noble Quran inserts the following text not present in other translations: “Thus (you are ordered by Allah to continue in carrying out Jihad against the

disbelievers till they embrace Islam (i.e. are saved from the punishment in the Hellfire) or at least come under your protection)….”

The document is particularly problematic in addressing women’s issues. In verse

24:2, which deals with adultery, most translations simply state that the punishment

for adultery is 100 lashes, whereas the translators of The Noble Quran augment the

punishment for married adulterers to death by stoning. In verse 33:59, most translations give a general recommendation for women to cover themselves in public,

whereas The Noble Quran specifically commands women to “screen themselves completely except the eyes or one eye to see the way.” In each of these cases and more,

the actual substance of the scripture is completely changed.

3. The authors also include copious footnotes with their own commentary and

selectively chosen quotations from the hadith. See Zack Hofstad, Do Unalienable

Rights Apply to All? Extreme Shari’a Law and How United States Foreign Policy Towards Iran and Afghanistan Has Fueled Its Spread, 6 REGENT J. INT’L L. 191, 228

n.26 (2008). Some editions of The Noble Quran contain an appendix entitled “The Call

think tank. ‘And it wasn’t just liberals. I couldn’t find an American Muslim who had

anything good to say about that edition. I would call it a Wahhabi Koran.’”).

to Jihad (Holy Fighting in Allah’s Cause).”5 This additional essay contains exhortations to take up Jihad, and begins with the statement: “Allah has rewarded the one

who performs [jihad] with lofty dwellings in the Gardens (of Paradise).” SUMMARIZED

SAHIH AL-BUKHARI 1079 (1994) (trans. Muhammad Muhsin Khan).6 It continues, “Allah revealed … the order to discard (all) the obligations (covenants, etc.) and commanded the Muslims to fight against all the Mushrikun as well as against the people

of the Scriptures (Jews and Christians) if they do not embrace Islam.” Id. at 1081.

The essay encourages readers to “[s]ee how Allah has encouraged the cowardly men

to plunge themselves into the battles, to face death with an open heart and to run

madly for it (Jihad) with great encouragement showing clearly to them that death

will certainly overtake them and in case they die as Mujahidin (Martyrs) they will be

compensated for their wordly life with a mighty compensation.” Id. at 1086. “To get

ready (for Jihad) includes various kinds of preparations and weapons,” including

“missiles, artillery, aeroplanes.” Id. at 1089. Readers are enjoined to “[i]nvade in the

Name of Allah and for the Cause of Allah and kill those who disbelieve in Allah.” Id.

at 1092.

See, e.g., Polk v. Olles, No. 12-CV-01106S(F), 2015 WL 10381751, at *2 (W.D.N.Y.

Dec. 29, 2015) (“[Official] stated that particular version of the Koran included a section on Jihad and, thus was confiscated as contraband.”), report and recommendation

adopted, 2016 WL 777313 (W.D.N.Y. Feb. 29, 2016); Garraway v. Lappin, No. 4:CV10-1697, 2012 WL 959422, at *17 (M.D. Pa. Mar. 21, 2012) (discussing “Noble Qur’ans

containing an appendix which explains Jihad”), aff’d, 490 Fed. App’x 440 (3d Cir. July

31, 2012).

6 This essay is typically numbered as “Appendix III” in The Noble Quran. Because not

every copy of The Noble Quran contains “The Call to Jihad,” citations are given to the

document as it is reproduced in a separate volume also translated by Muhammad

Muhsin Khan. SUMMARIZED SAHIH AL-BUKHARI (1994).

C. Respondents Deny Petitioner’s Request.

1. While Petitioner was in Department custody, the Department maintained

guidelines “[t]o create a correctional environment conducive to the physical safety of

inmates and staff and to aid in the rehabilitative process by discouraging violence or

unnatural or aggressive sexual behavior.” Correspondence, Publications, and Audio/Video Media Guidelines, OP-030117(I)(B)(6). To this end, the Department generally prohibited publications that, among other things, “[a]dvocate the overthrow of

the United States” or “[a]dvocate terrorism, criminal behavior, racial, religious, or

national hatred, or any material that creates an unsafe environment for the inmates

or staff.” OP-030117(I)(B)(5).7

Petitioner wrongly claims that “the Federal Bureau of Prisons permits the Noble

Quran in all its correction facilities either for any reason or religious reasons, while

meeting valid penological goal of security.” Pet. 13 (sic). Following this Court’s guidance, neither Respondents nor the federal government publishes a list of banned or

permitted books. Thornburgh v. Abbot, 490 U.S. 401, 416 (1989). Rather, all determinations are made on a case-by-case basis by the warden of the facility. 28 C.F.R. §

540.71; Fed. Bureau of Prisons, P5266.11, Incoming Publications, (2011); see, e.g.,

Davis v. Shields, No. 1:17-CV-1347-P, 2017 WL 7051213, at *1 (W.D. La. Dec. 28,

2017) (noting that federal prison’s review of The Noble Quran was ongoing), report

and recommendation adopted, 2018 WL 540230 (W.D. La. Jan. 24, 2018). Some federal prisons have denied inmates access to The Noble Quran. See, e.g., Gillon v. Fed.

Bureau of Prisons, No. 09-CV-02530-ZLW, 2010 WL 2711389, at *3 (D. Colo. July 7,

2010) (alleging that “an unknown chaplain refused [plaintiff’s] request for a ‘Noble

Quran’”), aff’d, 424 Fed. App’x 722 (10th Cir. 2011); see also Galeb v. Hostgen, No.

4:CV-06-1027, Doc. 9-3 at 16 (June 26, 2006) (Memorandum from J. Beadle, Chaplain) (“The Noble Quran published in Saudi Arabia in 1995-1996, with translators

Muhammad Taq-ud-Din al-Hilali and Muhammad Musin Khan is not allowed in the

institution.”). Indeed, Petitioner has specifically alleged in parallel litigation that federal prison officials “confiscated [his] books containing Orthodox Islamic literature

which contained … The Noble Quran … to deny [him] his ‘free exercise of religion.’”

Ali v. Bureau of Prisons, No. 1:17-cv-02293, Doc. 1 at 8, ¶ 16 (D.D.C. Oct. 23, 2017).

2. In response to Petitioner’s request for The Noble Quran, Leo Brown, the agency

chaplain, “conducted a survey of other corrections agencies regarding the ‘Noble

Quran’ and found that other agencies restricted access to the ‘Noble Quran,’ including

the Texas Department of Criminal Justice and the Nebraska Department of Corrections.” Pet.App.C19. Mr. Brown also “met with a representative of the Oklahoma

Chapter of the Council on American-Islamic Relations [CAIR] … to discuss the ‘Noble

Quran.’” Pet.App.C19. CAIR is one of the nation’s leading Muslim advocacy groups,

with a “mission [] to enhance understanding of Islam, protect civil rights, promote

justice, and empower American Muslims.”8 The CAIR “representative supported [the

Department’s] decision regarding the ‘Noble Quran’ and provided literature for distribution to offenders in [the Department’s] custody which recommended alternate

versions of the Quran available for free through [CAIR].” Pet.App.C19-20.

3. On June 9, 2014, Petitioner’s request to purchase or possess a copy of The Noble

Quran was denied, in accordance with OP-030117. Pet.App.C5, C9, C19. “Brown’s

decision, and the reason for the decision, was communicated to [Petitioner] and others

… and steps were taken to make sure that other versions of the Quran were available

to offenders.” Pet.App.C20. Indeed, Petitioner “was informed that all other translations were approved for use in the [Department’s] facilities and that there were a

number of other translations he could order or that were available in the Islamic

Communities lockers located in the [prison’s] chapel building.” Pet.App.C20.

CAIR, Vision, Mission, Core Principles, https://www.cair.com/about_us.

4. Several weeks later, an unidentified “male individual appeared at the facility

claiming to be a volunteer and seeking to bring Noble Qurans into the prison for distribution to the Muslim inmates.” Doc. 142-2 at 2. He was permitted into the facility

only after returning the Noble Qurans to his vehicle. Doc. 142-2 at 2. Contrary to

prison policy, he did not sign the volunteer log sheet and did not produce a volunteer

identification. Doc. 142-2 at 2. Prison officials suspected that Petitioner “knew the

identity of the person and had coordinated with the individual, in an effort to obtain

copies of Noble Qurans without authorization.” Doc. 142-2 at 3. On August 19, 2014,

prison officials conducted a search of Petitioner’s cell and discovered various contraband, including a copy of The Noble Quran, which they seized. Pet.App.C5.

D. Proceedings Below.

Petitioner filed numerous lawsuits while incarcerated. See, e.g., Doc. 24 at 2

(“From counsel’s representations of Plaintiff in another action in this district … and

in the Northern District … it would appear that Plaintiff may be a difficult client to

represent.” (citations omitted)); Ali v. Province, 550 Fed. App’x 619, 620-21 (10th Cir.

2013) (Gorsuch, J.) (“Murtaza Ali, an Oklahoma state prisoner, wrote to the administrator of the prison’s faith-based program asking if she was a lesbian … say[ing] he

needed to know before applying to participate in the prison’s faith-based programs

because taking instruction from a homosexual would violate his Muslim faith.”).9 Petitioner first raised the instant claims in 2014, alleging, inter alia, that Respondents

unlawfully denied him access to a copy of The Noble Quran in violation of RLUIPA

and the Free Exercise Clause, as applied to the State through the Fourteenth Amendment. Doc. 1 at 5.

1. Petitioner’s RLUIPA claim was dismissed at the screening stage. Doc. 44. The

magistrate judge concluded that Petitioner’s demand for damages under RLUIPA

was barred by sovereign immunity, and so subject to dismissal pursuant to 28 U.S.C.

§ 1915A(b)(2). Doc. 44 at 5-7. The magistrate further concluded that “[b]ecause [Petitioner] ha[d] been transferred from [Respondent’s] custody to the custody of the [Federal Bureau of Prisons], his RLUIPA … claim[] seeking equitable relief against [Respondents] in their official capacities [were] moot.” Id. at 8 (citing Sossamon v. Texas,

131 S. Ct. 1651, 1670 (2011); Warner v. Patterson, 534 Fed. App’x 785, 789 n.3 (10th

Cir. 2013); Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004); Green v.

Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997)). Nor did this case fall within the

See also, e.g., Ali v. Ranklin, 554 Fed. App’x 702 (10th Cir. 2014); Ali v. Province,

550 Fed. App’x 619 (10th Cir. 2013); Ali v. Taylor, 528 Fed. App’x 918 (10th Cir. 2013);

Ali v. Province, 466 Fed. App’x 703 (10th Cir. 2012); Ali v. Dinwiddie, 437 Fed. App’x

695 (10th Cir. 2011); Ali v. Dinwiddie, 291 Fed. App’x 164 (10th Cir. 2008); Ali v.

Pinkerton, No. 105,774 (Okla. May 5, 2008); Ali v. Pinkerton, No. 106,305 (Okla. Oct.

10, 2008); Ali v. Oklahoma, No. REC-2008-410 (Okla. Crim. App. Aug. 22, 2008); Ali

v. Pinkerton, No. CJ-2008-2712 (Aug. 21, 2008); Ali v. Hampton, No. CJ-2006-4216

(Okla. Cty. Oct. 27, 2006); Ali v. Okla. Dep’t of Corr., No. CJ-2006-2727 (Okla. Cty.

May 5, 2006).

In addition, Petitioner is currently involved in ongoing litigation in courts across

the country. Ali v. DuBoise, No. 17-5128 (10th Cir.); Ali v. Bureau of Prisons, No. 1:17cv-02293 (D.D.C.), on appeal, No. 17-2293 (D.C. Cir.); Ali v. Immigration & Customs

Enforcement, No. 1:2016-cv-0037 (N.D. Tex.).

“exception to the mootness doctrine for issues that are ‘capable of repetition yet evading review,’” Doc. 44 at 8 (quoting Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002)),

because “the issues are not capable of being repeated as [Petitioner] is no longer in

the custody of the state correctional system and he has not alleged that he has a

future sentence to serve in the custody of [Respondents].” Id. at 8-9. U.S. District

Judge Robin Cauthron adopted the magistrate’s report and recommendation in full.

Doc. 81 (Jan. 27, 2016).

As for Petitioner’s Free Exercise claim, the magistrate began his analysis by acknowledging that “[p]risoners must be provided reasonable opportunities to exercise

their religious freedom guaranteed under the First Amendment.” Pet.App.C20 (quoting Hudson v. Palmer, 468 U.S. 517, 523 (1984)). At the same time, “this constitutional right is limited by valid penological objectives,” which may “include deterrence

of crime, rehabilitation of prisoners, and institutional security.” Pet.App.C20 (citing

O’Lone v. Shabazz, 482 U.S. 342, 348 (1987)).

The magistrate correctly identified the appropriate standard under Turner v.

Safley, 482 U.S. 78 (1987), and its progeny: “a prison regulation is valid if it is reasonably related to legitimate penological interests.” Pet.App.C20-21 (citing O’Lone,

482 U.S. at 348). The magistrate identified the four relevant factors to be balanced:

“(1) the existence of a rational connection between the prison restriction and a legitimate governmental interest advanced as its justification; (2) the presence of alternatives for inmates to exercise the right; (3) the effect that elimination of the restriction

would have on guards, other prisoners, and prison resources; and (4) the existence of

alternatives for prison officials without restricting inmates’ rights to religious expression.” Pet.App.C21 (quoting Derrick v. Ward, 91 Fed. App’x 57, 61 (10th Cir. 2004)).

The magistrate harkened to this Court’s guidance that judges must be careful not to

“‘substitute [their] judgment on … difficult and sensitive matters of institutional administration,’ even concerning First Amendment claims.” Pet.App.C21 (quoting

O’Lone, 482 U.S. at 353).

2. As to the first factor, Respondents “cited ‘safety concerns’ as a legitimate penological goal.” Pet.App.C21. The magistrate reviewed evidence in the record, including

an essay by Professor Khaleel Mohammed comparing various translations of the

Quran. Pet.App.C21-22. The magistrate stated that the essay supported the conclusion that the translation Petitioner requested promoted Muslim supremacist and

anti-Semetic views more so than other versions of the Quran. Pet.App.C22. The magistrate also relied on a second essay that explained how “this particular translation

of the Quran ‘seriously distorts the concept of jihad,’” and “is found ‘on Muslim extremist sites.’” Pet.App.C22 (quoting essay by The American Muslim). The magistrate

judge “c[ould] locate no authority that favorably addresses the particular translation

of the Quran requested by Plaintiff.” Pet.App.C22.

Against this backdrop, the magistrate concluded that The Noble Quran fit within

the Department’s prohibition on “publications that ‘[a]dvocate terrorism, criminal behavior, racial, religious, or national hatred, or any material that creates an unsafe

environment for the offenders or staff.’” Pet.App.C23 (quoting OP-030117(I)(B)(5)(c)).

The magistrate further concluded that “[t]here is a rational connection between the

[Department’s] restriction against personal possession of the version of the Quran

known as the ‘Noble Quran’ and the legitimate safety concerns posited by Defendants.” Pet.App.C24. In particular, the magistrate concluded that “Brown … made a

reasonable decision to interview a representative of a local CAIR chapter and, in light

of the information he received from that representative, made a reasonable decision

to deny Plaintiff’s request to possess the ‘Nobel Quran’ religious text based on institutional safety concerns.” Pet.App.C24.

On the second factor, the magistrate found that “other versions of the Quran are

available to offenders” and “Plaintiff admits he was able to possess other versions of

the Quran.” Pet.App.C24. As a result, “alternatives existed for Plaintiff to exercise

his chosen Islamic religion.” Pet.App.C24.

As to the third factor, the magistrate concluded that Mr. Brown “reasonably considered the advice he received from the CAIR representative and from other sources

showing that this version of the Quran used language of a divisive religious nature

that could threaten the safety of other inmates and guards.” Pet.App.C24.

Lastly, the magistrate noted that “[i]t is not clear how [the Department] could

have otherwise accommodated Plaintiff’s request, as he admits he has other opportunities for exercising his First Amendment rights.” Pet.App.C25. As a result, “Plaintiff

ha[d] not demonstrated that his right to freely exercise his religion was improperly

infringed by [the Department’s] restriction on the purchase/possession of the ‘Noble

Quran.’” Pet.App.C25. Judge Cauthron “adopt[ed], in its entirety, the Report and Recommendation of the magistrate Judge,” Pet.App.B1, and entered judgment,

Pet.App.B3.

2. The Tenth Circuit affirmed. Pet.App.A1. The panel began by noting that “Once

Mr. Ali was released from Oklahoma Department of Corrections custody, his RLUIPA

claims became moot.” Pet.App.A2. The panel also rejected his First Amendment claim

“that his right to freely exercise religion was substantially burdened because he was

not allowed a copy of the Noble Quran.” Pet.App.A3. This was so, because “the prison

regulations relied upon to deny Mr. Ali a copy were rationally related to a valid penological interest,” and “Mr. Ali had alternative means by which to exercise his religion,” since “several different translations of the Quran were available to him.”

Pet.App.A3 (citing Turner, 482 U.S. at 90-91).10

4. Petitioner, who has been released from the Department’s custody and is living

abroad, now petitions this Court for a writ of certiorari. He also has a substantially

Petitioner had also raised several other claims. The panel concluded that Petitioner’s Establishment Clause claim was procedurally defaulted, Pet.App.A3 n.1, and

that he had failed to allege sufficient facts to support a claim for damages under 42

U.S.C. § 1983 against guards who denied him a Halal diet. Pet.App.A3. The panel

also rejected his Fourth Amendment objection to Respondent’s search of his jail cell,

on the grounds that he had no right to privacy in his jail cell. Pet.App.A3. The remainder of his claims were dismissed as untimely, for ineffective service, or for failure

to exhaust administrative remedies. Pet.App.A4.

identical appeal currently pending before the D.C. Circuit alleging that prison guards

unlawfully deprived him of his copy of The Noble Quran while in federal custody.11

REASONS THE PETITION SHOULD BE DENIED

There Is No Division Among The Courts Of Appeals On The Questions

Presented.

Petitioner implausibly suggests that the decision below conflicts with three deci-

sions by other courts. Pet. 7. But every court of appeals agrees that the proper standard in evaluating such First Amendment claims is this Court’s decision in Turner v.

Safley, 482 U.S. 78 (1987).12 The court below faithfully applied this precedent on free

exercise claims in the prison setting, in a manner consistent with every other court

of appeals in the country. The cases cited by Petitioner do not in any way conflict with

the decision below.

1. Petitioner first cites Sutton v. Rasheed, 323 F.3d 236, 252-54 (3d Cir. 2003).

Pet. 7-8. In that case, the Pennsylvania Department of Corrections entered the plaintiff in a special program for high-risk inmates where he was severely restricted in his

ability to access documents. Id. at 240-44. Initially, the plaintiff was only allowed “a

11 Ali v. Bureau of Prisons, No. 1:17-cv-02293, Doc. 1 at 8 ¶ 16 (D.D.C. Oct. 23, 2017),

on appeal, No. 17-2293 (D.C. Cir.).

12 Beauchamp v. Murphy, 37 F.3d 700, 704 (1st Cir. 1994); Holland v. Goord, 758 F.3d

215, 222 (2d Cir. 2014); Sharp v. Johnson, 669 F.3d 144, 155 (3d Cir. 2012); Heyer v.

United States Bureau of Prisons, 849 F.3d 202, 214 (4th Cir. 2017); Butts v. Martin,

877 F.3d 571, 584 (5th Cir. 2017); Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir.

2005); Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015); Sisney v. Kaemingk, 886

F.3d 692, 697 (8th Cir. 2018); Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017);

Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010); Prison Legal News v. Sec’y Fla.

Dep’t of Corr., 890 F.3d 954, 967 (11th Cir. 2018); Aref v. Lynch, 833 F.3d 242, 259

(D.C. Cir. 2016).

newspaper … one records center box of legal materials … and religious materials

consisting of one personal ‘Bible, Quran or equivalent only.’” Id. at 241. Upon good

behavior, the plaintiff’s privileges increased slightly, to include “[two] other religious

reading materials,” id., which could then be increased to “four other religious reading

materials,” id. at 242. During this time, the plaintiff requested access to writings of

Elijah Muhammad and other religious texts associated with the Nation of Islam. Id.

Prison officials denied the request on the grounds that they did not consider these

documents to be “essentially religious in nature.” Id. at 243. The Third Circuit held

that the prison officials could not stand as arbitrators of what is religion, that the

requested texts were objectively religious in nature, and that as a result the plaintiff’s

First Amendment rights had been violated. Id. at 254.

Rasheed has little relevance to this case. This case does not raise the question of

whether the requested materials are religious in nature. To the contrary, a translation of the Quran is concededly “religious.” Rather, this case asks whether a violent

offender has a First Amendment right to compel the State to permit him access to his

preferred translation of a religious document and accompanying commentary that

the record demonstrates is likely to incite violence and promote radicalization rather

than rehabilitation. Indeed, the Third Circuit in Rasheed explicitly cautioned: “We

express no opinion on the restriction of religious materials that might advocate violence.” Id. at 254 n.31. Nor does there appear to be any difference in how the Third

and Tenth Circuits have otherwise treated claims similar to the ones at bar. See Green

v. Sneath, 508 F. App’x 106, 110 (3d Cir. 2013) (holding that plaintiff did not “lack[]

an alternate means of practicing his religion generally” when not provided with preferred translation of Quran); Garraway v. Lappin, No. 4:CV-10-1697, 2012 WL

959422, at *17 (M.D. Pa. Mar. 21, 2012), aff’d, 490 Fed. App’x 440 (3d Cir. 2012)

(rejecting RFRA and First Amendment claims challenging neutral policy that plaintiff alleged prevented him from purchasing or possessing “Noble Qur’ans containing

an appendix which explains Jihad”).

2. Petitioner—remarkably—next relies upon Iqbal v. Hasty, 490 F.3d 143 (2d Cir.

2007). This case, which Petitioner claims splits with the Tenth Circuit, was reversed

by this Court in what is now the fourth-most cited opinion in this Court’s entire body

of precedent. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

In any event, the Second Circuit in Iqbal merely held that at the motion to dismiss

stage, the plaintiff had adequately alleged a First Amendment right sufficient to preclude a defense of qualified immunity based on allegations materially different from

the instant case. Plaintiff in that case alleged “that he was not allowed to attend

Friday prayers, that prison guards banged on his door when he tried to pray, and that

his Koran was routinely confiscated.” Id. at 174. Plaintiff had also alleged that he

was arrested based on his race without any link to terrorism, was permitted to leave

his cell only one hour each day (without social contact), was kept in solitary confinement with “the lights in his cell … left on almost 24 hours a day,” where “staff deliberately turned on air conditioning during the winter and heat during the summer,”

where he “was not provided with adequate food and lost 40 pounds while in custody,”

and where he “was also subjected to daily strip and body-cavity searches”—including

“fou[r] consecutive strip and body-cavity search[es] in the same room.” Id. at 146-49.

The panel found that whether the “restrictions … were a necessary part of the legitimate and proper function of the” prison that justified the guards’ actions would have

to “await factual discovery so that the Government’s asserted security interests can

be assessed against an actual record of what restrictions actually existed and what

purpose they served.” Id. at 174.

There appears to be no difference with the Tenth Circuit in the legal test the

Second Circuit used to evaluate the merits of Iqbal’s free exercise claims. The starkly

different factual allegations and procedural posture—as well as the fact that the Second Circuit’s decision in Iqbal was famously reversed—make this case a poor candidate to claim as the basis for a potential circuit split.

3. The last case Petitioner cites is not even from a different circuit: Harris v.

Adams Cty. Sheriff’s Dep’t, No. 16-cv-0574 (D. Colo.). Pet. 8. There, the plaintiff alleged that upon being transferred to a prison facility, his copy of the Quran was confiscated pursuant to prison policy and placed in his property storage. Id., Doc. 1 at 2.

He was not allowed any religious items or other property until he had been classified

and sent to the appropriate population housing unit. Id. at 8. The plaintiff also alleged

that although he was eventually able to obtain a Quran, a mishap delayed the delivery such that he went through Ramadan without access to any Quran. Id. at 8-9. This

case was settled with prejudice by stipulation of the parties on June 1, 2017. Id., Doc.

85. This case does not present a similar issue, is not precedential, and arose within

the Tenth Circuit. It cannot support a claim that there is a circuit split.13

II. Petitioner’s Claims Of Erroneous Factual Findings Or A Misapplication

of Settled Law Do Not Warrant Certiorari.

At most, Petitioner’s claims merely amount to alleging a factual mistake about

the nature of The Noble Quran or a misapplication of the settled Turner test. But this

Court generally does not grant writs of certiorari “when the asserted error consists of

erroneous factual findings or the misapplication of a properly stated rule of law.” Sup.

Ct. R. 10.

Courts have consistently upheld prison policies prohibiting religious documents

that are likely to incite violence without regard to the religion at issue. For example,

in Carpenter v. Wilkson, an Ohio prison had a policy of “not allow[ing] inmates to

pursue religious practices that threaten institutional security” and so “at times restricted or prohibited the possession of ‘religious’ literature which it f[ound] to be inflammatory.” 946 F. Supp. 522, 529 (N.D. Ohio 1996). When the prison prohibited an

13 Petitioner also cites opinions from seven courts of appeals for the proposition that

Respondents had the burden “to provide ‘some evidence that such potential problems

are real, not imagined.’” Pet. 13-15 (citations omitted). But these cases—which include two other Tenth Circuit opinions—all agree upon the appropriate standard, and

this widespread agreement only further underscores that this case does not present

any circuit split. See Pet. 14-15 (citing Yellowbear v. Lampert, 741 F.3d 48, 59 (10th

Cir. 2014); Beerhide v. Suthers, 286 F.3d 1179, 1189 (10th Cir. 2002); and other cases).

Petitioner merely objects to the Tenth Circuit’s application of that standard to the

specific facts of this case. But as explained infra III.B, Respondents have provided

much more than the bare requisite of “some evidence” in support of their policies.

inmate from possessing a book called The Satanic Bible, the court held that “prohibiting the possession of The Satanic Bible does not substantially burden the plaintiff’s

ability to practice his ‘religion’ and is validated by legitimate penological concerns for

safety and security.” Id. at 530.14

Courts have similarly approved appropriately-tailored policies that prohibit inmates from possessing religious literature advocating racial supremacy when such

literature can lead to violence. For example, in Murphy v. Mo. Dep’t of Corr., inmates

who were members of the Aryan Nations, Church of Jesus Christ Christian challenged a new prison policy that “withheld delivery of literature or correspondence …

from any organization that espoused the supremacy, purity or separation of the white

race.” 814 F.2d 1252, 1254 (8th Cir. 1987). The court correctly held that this was

overbroad, and that “[r]estriction of inmate access to Aryan Nations materials

through the mail must be limited to those materials that advocate violence or that

are so racially inflammatory as to be reasonably likely to cause violence at the prison.”

Id. at 1257. Other courts have followed this approach and permitted “literature advocating racial purity, but not advocating violence or illegal activity as a means of

achieving this goal, and not so racially inflammatory as to be reasonably likely to

Accord McCorkle v. Jonson, 881 F.2d 993, 995-965 (11th Cir. 1989); Ruley v. Stovall,

No. 10-CV-142, 2012 WL 1038665, at *3-4 (E.D. Ky. Mar. 27, 2012), aff’d, (6th Cir.

Mar. 11, 2013); Goninan v. Holmes, No. 6:12-CV-01555, 2014 WL 6966990, at *9 (D.

Or. Dec. 4, 2014); Johnson v. Williams, No. 3:07-CV-1659, 2011 WL 6778711, at *11

(D. Or. Dec. 22, 2011); Winford v. Frank, 2008 WL 359728, at *3 (E.D. Wis. 2008);

Burton v. Frank, No. 03-C-0374, 2004 WL 1176171, at *4 (W.D. Wis. May 20, 2004);

Doty v. Lewis, 995 F. Supp. 1081, 1086-87 (D. Ariz. 1998).

cause violence at the prison.” McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987); see

also Borzych v. Frank, 439 F.3d 388, 390-91 (7th Cir. 2006) (prohibition on Odinism

books exalting status of whites, not because of racist ideology, but because the books

promote violence).

The same rule has been consistently and fairly applied to Islamic literature. For

instance, in Ciempa v. Jones, an inmate professed to be an adherent of The Five Percent Nation, or the Nation of Gods and Earths—a religious movement with roots in

the Black Muslim movement. 745 F. Supp.2d 1171, 1177 (N.D. Okla. 2010), aff’d, 511

Fed. App’x 781 (10th Cir. 2013). The prison denied him access to several books he

ordered, which “contained military subject matter including combat tactics, demolitions, and booby traps,” but which plaintiff insisted were necessary for “all men who

practice I.S.L.A.M.” Id. at 1180-82. The court upheld the restriction as they “related

to the legitimate penological interest of maintaining prison safety.” Id. at 1193. At

the same time, courts have correctly acknowledged that a total prohibition on Qurans

in prisons would burden inmates’ religious liberties. See, e.g., Northern v. Nelson, 315

F. Supp. 687, 688 (N.D. Cal. 1970). Only a few unpublished decisions have applied

this rule to possession of The Noble Quran translation and commentary, but none

reveal any serious disagreement among courts on an important question of federal

law.15

Cf. Green, 508 F. App’x at 110; Ramadan v. Fed. Bureau of Prisons, No. CV 1:1425757, 2015 WL 5684126, at *5 (S.D.W. Va. Sept. 28, 2015); Tariq v. Chatman, No.

1:11-CV-159, 2012, WL 3637729, at *2-4 (M.D. Ga. Aug. 22, 2012); Garraway, 2012

WL 959422, at *17.

Thus, lower courts have consistently applied this Court’s rules in an evenhanded

manner, never prohibiting racist, Islamist, or other materials merely because some

may consider them repugnant, but only where they tend to incite violence so as to

raise security or rehabilitative concerns. Petitioner may disagree that the Noble

Quran falls into this category as a factual matter, or may think that the court below

misapplied this well-settled standard to the record evidence in this case, but such a

disagreement does not warrant certiorari.

***

Given the fact-specific nature of Petitioner’s claims and the infrequency of the

problem raised, this case presents a poor vehicle to elaborate on this Court’s standards governing the religious liberties due inmates—assuming such elaboration is necessary despite a complete lack of division on this issue in the lower courts.

III. The Tenth Circuit’s Decision Was Correct.

This Court generally does not grant review to determine whether there is an error

in an unpublished lower court opinion. See Overton v. Ohio, 534 U.S. 982, 985(2001)

(statement of Breyer, J.). In any event, the Tenth Circuit’s decision in this case was

correct.

A. Petitioner’s RLUIPA Claim Is Moot.

Petitioner’s claim under RLUIPA is moot. “Standing to assert a claim or defense

under [RLUIPA] shall be governed by the general rules of standing under Article III

of the Constitution.” 42 U.S.C. § 2000cc-2. RLUIPA may only serve as a basis for

injunctive relief. Sossaman, 563 U.S. at 280. Because Petitioner has been released

from Respondents’ custody, his claim for injunctive relief is moot. O’Shea v. Littleton,

414 U.S. 488, 495-97 (1974).16

Petitioner argues that this case fits within this Court’s exception for actions (1)

that are “too short in duration ‘to be fully litigated prior to its cessation or expiration’”

and (2) ‘there [is] a reasonable likelihood that the same complaining party would be

subjected to the same action again.’” Pet. 23-24 (citing City of Mesquite v. Aladdin’s

Castle Inc., 455 U.S. 283, 298 n.10 (1982)). Even assuming that this convicted felon

manages to reenter the country, travels to Oklahoma again, commits another crime,

and is subjected to the same unrevised policy, “there is no indication that the duration

of such placement would be too short to allow his complaints to be litigated then.”

Warner v. Patterson, 534 Fed. App’x 785, 788 (10th Cir. 2013) (citations omitted). And

to the degree that Respondents’ policy may adversely affect other inmates who request copies of The Noble Quran, “those inmates can bring their own RLUIPA claims

challenging [this] polic[y],” as “[t]here is nothing in the record to suggest that these

See also, e.g., Ford v. Bender, 768 F.3d 15, 29 (1st Cir. 2014); Plummer v. Riley, 720

Fed. App’x 144, 146 (4th Cir. 2018); Hoffman v. Thaler, 539 Fed. App’x 507, 510 (5th

Cir. 2013); Selby v. Caruso, 734 F.3d 554, 561 (6th Cir. 2013); Easterling v. Pollard,

528 Fed. App’x 653, 656 (7th Cir. 2013); Jones v. Williams, 791 F.3d 1023, 1031 (9th

Cir. 2015); Pfeil v. Lampert, 603 Fed. App’x 665, 668 (10th Cir. 2015); Scott v. District

of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998).

U.S. District Court Judge Christopher Cooper came to the same conclusion in evaluating Petitioner’s claim under RFRA, 42 U.S.C. § 2000-bb, in Petitioner’s parallel

litigation. Ali v. Bureau of Prisons, No. 1:17-cv-02293, Doc. 3 at 2-3 (D.D.C. Jan. 22,

2018) (“[Petitioner] has been released from [Bureau of Prisons] custody, rendering

moot his RFRA claims and demand for injunctive relief.” (citing Scott, 139 F.3d at

941)).

other inmates would generally be unable to litigate their RLUIPA claims to completion.” Alvarez v. Hill, 667 F.3d 1061, 1065 (9th Cir. 2012).

Nor is there “a reasonable likelihood that the same complaining party would be

subject to the same action again.” Pet. 23-24 (emphasis added). This Court’s “cases

reveal that, for purposes of assessing the likelihood that state authorities will reinflict

a given injury, we generally have been unwilling to assume that the party seeking

relief will repeat the type of misconduct that would once again place him or her at

risk of that injury.” Honig v. Doe, 484 U.S. 305, 321 (1988) (citing Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983); Murphy v. Hunt, 455 U.S. 478, 484 (1982); O’Shea,

414 U.S. at 497). Following this guidance, courts do not presume that a released inmate will return to prison—especially when the plaintiff has left the country entirely.17 Thus, while Respondents “will continue to administer the [policy] with respect to those who at any given moment” are in their custody, “there is no demonstrated probability that [Petitioner] will again be among that number.” Weinstein v.

Bradford, 423 U.S. 147, 149 (1975).

B. The Tenth Circuit Correctly Applied Turner to Petitioner’s First

Amendment claim.

The courts below correctly identified the relevant standard, set out in Turner v.

Safley, that requires a prison regulation to be reasonably related to legitimate peno-

See supra n. 1; see also Ford, 768 F.3d at 30; Alvarez, 667 F.3d at 1064.

logical interests. 482 U.S. at 87; Pet.App.A33; Pet.App.C21. And they correctly determined that Respondents’ regulations are valid by reference to the four factors this

Court identified in Turner.

1. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482

U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). “[T]he governmental objective must be a legitimate and neutral one.” Id. at 90. Here, the government

has valid institutional goals in preventing violence (especially religious violence) and

promoting institutional security. Pet.App.C20. The document in question contains

inflammatory commentary, openly exhorts readers to jihad, and has been linked to

terrorist organizations. See supra Statement B. “Once in the prison, material of this

kind reasonably may be expected to circulate among prisoners, with the concomitant

potential for coordinated disruptive conduct.” Thornburgh, 490 U.S. at 412. And as

other “prisoners … observe particular material in the possession of a fellow prisoner”

and “draw inferences about their fellow’s beliefs,” they may be more likely to harm

the reader himself. Id. Allowing Petitioner to possess and circulate the most violent

and extremist translation and commentary of this religious text can only stand to

unnecessarily accentuate present security concerns. See Galab v. Hogsten, No. 4:CV06-1027, 2007 WL 1238562, at *5 (M.D. Pa. Apr. 26, 2007) (The Noble Quran “is not

permitted by the [prison] because it is found to violate the ideologies of other religions

and preaches violence.”).

Respondents also have a penological interest in promoting rehabilitation, including the prevention of radicalization that will lead to criminal behavior once inmates

leave the prison. Prisons have long been a breeding ground for radicalization. Terrorist organizations have regularly targeted prison populations to recruit new members.

Organizations such as the Aryan Nation, Klu Klux Klan, and the Order reach out to

inmates hoping to tap into their discontent. Abu Muhammad Al-Maqdisi famously

recruited a number of future Islamic extremists while he was in prison, including Abu

Musab Al Zarqawi—the future leader of Al Qaeda in Iraq. “Prisoners, by their very

nature, are at risk and susceptible to recruitment and radicalization by extremist

groups because of their isolation, their violent tendencies and their cultural discontent.” The Threat of Muslim American Radicalization in U.S. Prisons, Hearing Before

the H. Comm. on Homeland Sec., 112th Cong. 221 (2011) (statement of Michael P.

Downing, Commanding Officer, Counter-Terrorism and Special Operations Bureau,

L.A. Police Dep’t). “If left unchecked prisons can and do become incubators of radicalization leading to violent extremism.” Id.

Prison radicalization is thus a serious issue in this country. “Law enforcement

and intelligence officials have identified prisons and the Internet as two major areas

of potential radicalization within the United States.” J. Scott Carpenter et al., Confronting the Ideology of Radical Extremism, 3 J. NAT’L SECURITY L. & POL’Y 301, 311

(2009). “A good example of this phenomenon is the 2005 plot by the Jam’iyyat UlIslam Is-Saheeh involving Muslim converts who met in prison and were planning an

attack on synagogues and the Israeli Consulate in California.” Id. “Dozens of ex-cons

who became radicalized Muslims inside U.S. prisons have gone to Yemen to join an

al-Qaeda group run by a fellow American, Anwar al-Awlaki, whose terrorists have

attacked the U.S. homeland several times since 2008, and are generally acknowledged to be al-Qaeda’s most dangerous affiliate.”18 Through al-Awlaki, radical literature “has found its way into the prison system and has been used by known extremists to facilitate recruitment and radicalization activities within prisons.” 19

The Noble Quran has been directly linked with this larger issue. See supra Statement B.1. The al-Haramain Islamic Foundation is a Saudi-based charity that distributed free copies of The Noble Quran. See, e.g., United States v. Sedaghaty, 728 F.3d

885, 897 (9th Cir. 2013). The organization has since been identified as financing terrorism and has been explicitly linked to Al-Qaeda. See, e.g., Al Haramain Islamic

Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 978-79 (9th Cir. 2012); THE 9/11

COMMISSION REPORT 170 (2004). Circulation of jihadist literature “is antithetical to

basic precepts of criminal rehabilitation.” Burton v. Frank, No. 03-C-0374-C, 2004

WL 1176171, at *4 (W.D. Wis. May 20, 2004).

18 The Threat of Muslim American Radicalization in U.S. Prisons, Hearing before the

H. Comm. on Homeland Sec., 112th Cong. 204 (2011) (statement by Chairman Hon.

Peter T. King); see also id. at 210 (“Authorities learned of a Jordanian-born inmate

who identified himself as a follower of Osama bin Laden and said that his group was

interested in recruiting inmates in the U.S. prisons. He stated that his group intended to get inmates trained in the Middle East after their release from prison and

then have them return to the United States to participate in Jihad.”) (statement of

Patrick T. Dunleavy, Deputy Inspector General (Ret.), Criminal Intelligence Unit,

N.Y. State Dep’t of Corr. Services).

19 Id. at 225 (statement of Michael P. Downing, Commanding Officer, Counter-Terrorism and Special Operations Bureau, L.A. Police Dep’t).

2. Next, courts are to consider “whether there are alternative means of exercising

the right that remain open to prison inmates.” Turner, 482 U.S. at 91. Here, other

translations of the Quran are readily available in the prison, including a copy in the

original Arabic, Pet.App.A3, and Petitioner may purchase and possess any other

translation of the Quran,Pet.App.C24.

3. “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates on the allocation of prison resources generally.” Turner, 482 U.S. at 90. As noted above, allowing Petitioner to

possess and potentially circulate copies of The Noble Quran would threaten the safety

of the guards and other prisoners, increasing security costs. Pet.App.C24. “[T]he likelihood that such material will circulate within the prison raises the prospect of precisely the kind of ‘ripple effect’ with which the Court in Turner was concerned.”

Thornburgh, 490 U.S. at 418.

4. “Finally, the absence of ready alternatives is evidence of the reasonableness of

a prison regulation.” Turner, 482 U.S. at 90 (citing Block, 468 U.S. at 587). Here,

Petitioner has not provided any alternative beyond giving him access to The Noble

Quran and hoping for the best. Pet.App.C25. The absence of any constructive suggestion by Petitioner confirms the reasonableness of Respondents’ actions.

CONCLUSION

The Petition for Certiorari should be denied.

Respectfully submitted,

MIKE HUNTER

Attorney General of

Oklahoma

CHARLES DICKSON

DESIREE SINGER

Asst. Attorneys General

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

MICHAEL K. VELCHIK

RANDALL YATES

Asst. Solicitors General

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

mithun.mansinghani@oag.ok.gov

Counsel for Respondents

July 2, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.