                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                      PUBLISH
                                                                          August 7, 2012
                     UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                                  TENTH CIRCUIT



 MOHAMED RASHED D. AL-OWHALI,

       Plaintiff–Appellant,

 v.

 ERIC H. HOLDER, in his official
 capacity as U.S. Attorney General;
 HARLEY G. LAPPIN, in his official                          No. 11-1274
 capacity as Director, Federal Bureau of
 Prisons; BLAKE DAVIS, in his official
 capacity as Warden, USP Florence
 ADMAX ; FEDERAL BUREAU OF
 INVESTIGATION,

       Defendants–Appellees.




                    Appeal from the United States District Court
                            for the District of Colorado
                       (D.C. No. 1:07-CV-02214-LTB-BNB)


Jeffrey Hoard, Student Attorney (Daniel E. Manville, Director, Civil Rights Clinic,
Michigan State University College of Law; Joyce Ellen Rosendahl, Law Offices of Joyce
Ellen Rosendahl, on the briefs), Michigan State University College of Law, East Lansing,
Michigan, for the Plaintiff-Appellant.

John A. Drennan (John F. Walsh, United States Attorney, Susan Prose, Assistant United
States Atttorney, and Lisa O. Monaco, Assistant Attorney General for National Security,
with him on the briefs), U.S. Department of Justice, National Security Division,
Washington, DC, for the Defendants-Appellees.
Before LUCERO, EBEL, and MATHESON, Circuit Judges.


LUCERO, Circuit Judge.


       Mohamed Rashed Al-Owhali, an inmate in a federal high-security prison, brought

a suit challenging several Special Administrative Measures (“SAMs”) imposed upon him.

The district court dismissed the suit, finding that Al-Owhali failed to allege plausible

facts to support his claims. In light of concessions made by Al-Owhali before argument,

we exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s dismissal.

                                              I

       Al-Owhali was convicted of several terrorism-related offenses stemming from the

1998 bombing of the United States embassy in Nairobi, Kenya. He is currently serving a

life sentence without the possibility of parole at the United States Penitentiary,

Administrative Maximum, in Florence, Colorado. Since his arrest, Al-Owhali has been

subject to SAMs, which impose special restrictions on his imprisonment.1 Starting in

2004, Al-Owhali’s SAMs prohibited him from corresponding with his nieces and

nephews through letters. His 2004 SAMs further forbid him from receiving two Arabic-

       1
         SAMs may be imposed as “reasonably necessary to protect persons against the
risk of death or serious bodily injury.” 28 C.F.R. § 501.3(a). With the Attorney
General’s approval, each SAM may be imposed for up to one year. § 501.3(c). They
may be extended in one-year increments, and modified from year to year. Id. The
inmate must be provided with written notification of the restrictions imposed and the
basis for these restrictions. § 501.3(b). However, “[t]he notice’s statement as to the basis
may be limited in the interest of prison security or safety or to protect against acts of
violence or terrorism.” Id.

                                             -2-
language newspapers that he had previously been provided. In addition to these explicit

SAMs restrictions, Al-Owhali alleges that officials prohibited him from receiving a copy

of former President Jimmy Carter’s book Palestine: Peace, Not Apartheid.

       In 2009, Al-Owhali filed his second amended complaint in federal district court,

alleging that these restrictions and others violated his constitutional rights. Invoking

Ashcroft v. Iqbal, 556 U.S. 662 (2009), the court concluded that Al-Owhali had not

alleged sufficient facts to make his claim facially plausible and dismissed the complaint

under Fed. R. Civ. P. 12(b)(6). Al-Owhali then filed a motion to reconsider and a motion

to file a third amended complaint, both of which were denied. He then appealed.

       On the eve of oral argument, however, Al-Owhali conceded most of the arguments

he had briefed. According to the concession, he continues to contest only the three

restrictions listed above: the prohibitions on communication with his nieces and

nephews, the two Arabic-language newspapers, and President Carter’s book.

                                             II

       We review de novo a district court’s dismissal of a claim under Fed. R. Civ. P.

12(b)(6). Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Under

Iqbal, “a complaint must contain enough allegations of fact, taken as true, to state a claim

to relief that is plausible on its face.” 556 U.S. at 678 (quotation omitted). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Although we must accept as true all factual allegations asserted in the complaint,

                                             -3-
dismissal is appropriate where “the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct.” Id. at 679; see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007).

       In addition to the pleading burden imposed by Iqbal, inmates face additional

hurdles when challenging a prison regulation as unreasonable. As a general matter,

“when a prison regulation impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482

U.S. 78, 89 (1987). We use four factors to guide our Turner inquiry:

       (1) whether a rational connection exists between the prison policy
       regulation and a legitimate governmental interest advanced as its
       justification; (2) whether alternative means of exercising the right are
       available notwithstanding the policy or regulation; (3) what effect
       accommodating the exercise of the right would have on guards, other
       prisoners, and prison resources generally; and (4) whether ready, easy-to-
       implement alternatives exist that would accommodate the prisoner’s rights.

Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (citing Turner, 482 U.S. at

89-91). Among these factors, the first is the most important; as we have noted, it is “not

simply a consideration to be weighed but rather an essential requirement.” Boles v. Neet,

486 F.3d 1177, 1181 (10th Cir. 2007) (quotation omitted).

       Analysis of the four Turner factors is necessary at the summary judgment stage.

See Jones v. Salt Lake Cnty., 503 F.3d 1147, 1153-59 (10th Cir. 2007). But in ruling on

a motion to dismiss, a court need only assess, as a general matter, whether a prison

regulation is “reasonably related to a legitimate penological interest.” Gee v. Pacheco,

627 F.3d 1178, 1187 (10th Cir. 2010). Thus, while it is critical that a complaint address

                                             -4-
Turner’s core holding, the four Turner factors need not be part of the analysis at the

pleading stage. See id.

       Taken together, Iqbal and Turner require an inmate to “plead facts from which a

plausible inference can be drawn that the action was not reasonably related to a legitimate

penological interest.” Gee, 627 F.3d at 1188. “This is not to say that [Al-Owhali] must

identify every potential legitimate interest and plead against it.” Id. However, he is

required to “recite[] facts that might well be unnecessary in other contexts” to surmount a

motion to dismiss under Fed. R. Civ. P. 12(b)(6). Gee, 627 F.3d at 1185.2

                                             A

       In his pleadings, Al-Owhali asserts that the 2004 SAMs prohibited him from

writing letters to his nieces and nephews, even though he had previously been permitted

to do so. He further pleads that the government imposed these new restrictions despite

his compliance with previous SAMs, and contends that they violate BOP regulations and

his First Amendment rights. It is Al-Owhali’s burden to demonstrate that there is no

legitimate, rational basis for the increased communication restrictions. See Gee, 627 F.3d

at 1185 (a prisoner must “explain why the usual justifications for the complained-of acts


       2
         The district court misstated the standard by dismissing Al-Owhali’s claim on the
grounds that “it is equally plausible as not that each of the four Turner factors favors the
imposition of the SAMs.” See Iqbal, 556 U.S. at 678 (“The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.”). Moreover, as discussed above, an analysis of the
Turner factors is unnecessary at the pleading stage. Despite this misstatement, however,
dismissal of Al-Owhali’s claims was proper.


                                             -5-
do not apply” in his pleadings). Yet nothing in the pleadings speaks to the rationale

underlying the new restrictions or the apparent concerns surrounding Al-Owhali’s contact

correspondence with his nieces and nephews.

       These deficiencies in his pleadings are especially clear given the government’s

proffered justifications for imposing SAMs. According to the 2008 SAMs extension,3

which included the correspondence restrictions at issue, the warden believed that Al-

Owhali had a “proclivity for violence” based on his conviction for acts of terrorism. The

warden expressed his concern that “communications or contacts with persons could result

in death or serious bodily injury to persons.” Even if this reasoning does not explicitly

address the new restrictions, it is a coherent explanation of the government’s policy that

Al-Owhali does not rebut in his pleadings. See Jones v. N.C. Prisoners’ Labor Union,

Inc., 433 U.S. 119, 126 (1977) (“The concept of incarceration itself entails a restriction

on the freedom of inmates to associate with those outside of the penal institution.”). Al-

Owhali’s pleadings include no facts indicating that the government lacks a legitimate

penological interest in limiting his correspondence or that the new restrictions are

unrelated to this interest. See Turner, 482 U.S. at 89.

       In order to survive the government’s 12(b)(6) motion, Al-Owhali was not required

to substantively rebut the government’s justifications for the new restrictions. See Gee,

       3
         A copy of the 2004 SAMs extension is not before us, but at oral argument, Al-
Owhali’s counsel informed the court that SAMs restrictions from 2004 are the same as
those from 2008. Given that the justifications for the restrictions in the 2008 SAMs are
coupled with the restrictions themselves, we presume the same was true with the 2004
SAMs.

                                            -6-
627 F.3d at 1188 (“We do not intend that pro se prisoners must plead, exhaustively, in the

negative in order to state a claim.”). Rather, he simply needed to plead some plausible

facts supporting his claim that the ban on communicating with his nieces and nephews

did not serve the purpose of preventing future terrorist activity. See, e.g., Mohammed v.

Holder, 07-CV-02697-MSK-BNB, 2011 WL 4501959 (D. Colo. Sept. 29, 2011)

(concluding that an inmate’s challenge to SAMs was plausible where his pleadings

pointed to a recommendation from the warden that the inmate’s privileges be expanded).

Looking to his pleadings, the only supporting fact Al-Owhali offers is that he did not

violate any SAMs before the new restrictions were imposed. This assertion fails to

address whether the restriction was supported by a rational penal interest. Accordingly,

dismissal of this claim was appropriate.

                                            B

       Al-Owhali’s complaint also asserts that the 2004 SAMs violated his First

Amendment rights by preventing him from subscribing to two Arabic-language

newspapers—Al-Quds Al-Arabi and Al-Hayat. Although the government previously

permitted Al-Owhali to receive these papers, the 2004 restrictions prevented him from

accessing any media outlets other than television and radio news stations and USA

Today. The 2008 SAMs explain that mass communications restrictions were imposed to

“prevent [Al-Owhali] from receiving and acting upon critically-timed information or

information coded in a potentially undetectable manner.”

       As an initial matter, the government contends that this claim is moot because the

                                            -7-
SAMs currently in effect do not prohibit Al-Owhali from receiving these newspapers.

This argument is problematic because it potentially allows for a constitutional violation

that is “capable of repetition yet evades review.” Murphy v. Hunt, 455 U.S. 478, 482

(1982) (quotation omitted).

       In order to fall within this exception to mootness, Al-Owhali must show that the

SAMs are in effect for a “duration too short to be fully litigated prior to [their] cessation”

and there is a “reasonable expectation that [he will] be subjected to the same action

again.” Jordan v. Sosa, 654 F.3d 1012, 1035 (10th Cir. 2011). Based on the record

before us, we have no trouble concluding that Al-Owhali has made both these showings,

and that his claim is thus not moot. All SAMs expire, at the latest, one year after they are

imposed. See 28 C.F.R. § 501.3(c) (permitting SAMs to “be imposed for up to 120 days

or, with the approval of the Attorney General, a longer period of time not to exceed one

year”). If we prohibited any challenge to a lapsed SAM, inmates would only have one

year to litigate and appeal a case. This feat will often be impossible, as this case

illustrates: Years have elapsed since Al-Owhali first brought his claim. Moreover, there

is nothing preventing the government from introducing more restrictive SAMs in any

given year. As this case shows, a prisoner can reasonably expect SAMs to change from

year to year and fluctuate in severity. Given these facts, we refuse to cast Al-Owhali’s

challenge to older SAMs as moot.

       Even though Al-Owhali’s claim is properly before us, our precedent nonetheless

dictates that dismissal was appropriate. In Gee, we held that an inmate’s allegations that

                                             -8-
the prison “forced him to dispose of magazines to which he subscribed” failed to state a

viable claim. 627 F.3d at 1190. Noting that such restrictions were common in the prison

setting, we dismissed the claim because the inmate failed to offer plausible “allegations

showing that the restrictions were imposed in violation of prison regulations or that the

regulations invoked were unconstitutional in the circumstances.” Id. As with the inmate

in Gee, Al-Owhali pleads no facts indicating that the new restrictions were an abuse of

the warden’s broad discretion to limit incoming information. See Thornburgh v. Abbott,

490 U.S. 401, 415-19 (1989) (upholding restrictions on prisoners’ incoming mail); Van

den Bosch v. Raemisch, 658 F.3d 778, 788 (7th Cir. 2011) (permitting confiscation of

newsletters in prison); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (stating

that complaint about undelivered catalogues did not raise a constitutional issue). Nor

does he address the government’s logical safety rationale for limiting his access to

Arabic-language media—namely, the need to prevent Al-Owhali from acting upon

contemporary information or receiving coded messages.4 As such, dismissal was proper.

                                              C

       Al-Owhali’s third First Amendment claim, regarding his alleged inability to obtain

President Carter’s book, is the most compelling. We cannot imagine how this book could

have raised safety concerns or facilitated terrorist activity. Any penal justification for

       4
         Even if a restriction appears commonplace and within a warden’s discretion, a
court is not divested of its responsibility to determine if the restriction passes
constitutional muster. Al-Owhali’s claim fails because he did not address the explicit and
reasonable concerns underlying the government’s decision to limit his access to certain
forms of media.

                                             -9-
restricting the book under Turner would be questionable at best. However, we conclude

that Al-Owhali’s sparse pleadings on this claim fail to allege a plausible constitutional

violation under Iqbal. The only reference to the book in the pleadings reads:

       On information and belief, Mr. Al-Owhali has been restricted from
       receiving the book Palestine: Peace Not Apartheid, written by former
       President Jimmy Carter. The non-SAMs inmates have not been precluded
       from ordering this book. The Defendants or their agents have not provided
       notice to Mr. Al-Owhali or the publisher that President Carter’s book was
       banned, the reason for that ban[,] or the opportunity to challenge such ban.

This vague allegation that he was “restricted from receiving the book” is lacking any

factual context. We do not know if Al-Owhali even requested the book at all. If he did,

the pleadings shed no further light on the matter. Instead, he implies the existence of a

secret list of banned publications. We cannot credit such implications; they remain

unfounded allegations reminiscent of the claims dismissed in Iqbal. See 556 U.S. at 682-

83 (allegation of existence of discriminatory policy, without facts supporting existence of

policy, was insufficient); Twombly, 550 U.S. at 564-65 (same for assertion that

companies agreed to price-fix, without factual allegations that would show existence of

agreement). Thus, by not including the most basic facts about the challenged restriction,

Al-Owhali has failed to “nudge[] [his] claim[] across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570.

       Al-Owhali did not face a high threshold to establish his claims. But a mere

assertion that he believes that there is a secret policy in place that prevents him from

obtaining the book is not enough. We emphasize that the facts that Al-Owhali was

required to plead to push his claim past the plausibility threshold were minimal. For
                                            -10-
example, if he had indicated that prison officials had informed him that he could not

receive the book or that he had explicitly requested it and received no response, Iqbal

would pose no barrier to his claim going forward. However, by stating his belief that the

book was banned while also admitting that he was not informed of the ban, Al-Owhali

has merely highlighted the theoretical basis of his claim.

       At bottom, Al-Owhali claims without substantiation that he believes there is a

secret policy in place that prevents him from obtaining the book. Such a claim, without

more, is simply too speculative.

                                             D

       Finally, Al-Owhali asserts that his Fifth Amendment right to due process was

violated when prison officials imposed additional restrictions without specific

explanations in the 2004 SAMs. We decline to consider this claim. In his concession,

Al-Owhali states that the following claim remains viable in this appeal:

       His Fifth Amendment claim found in Claim 4 of his Second Amended
       Complaint alleging that the Appellees violated his Fifth Amendment due
       process rights in restricting his written communications with nephews,
       nieces, and others; his ability to receive two Arabic newspapers; and his
       ability to receive Palestine: Peace Not Apartheid, written by former
       President Jimmy Carter in 2004.

Looking to Claim 4 of Al-Owhali’s amended complaint, we do not find a due process

claim. Rather, Claim 4 asserts:

       Defendants’ policies, practices, acts, and omissions in connection with the
       imposition, extension, and enforcement of the SAMs deprive Al-Owhali of
       freedom of speech, freedom of expression, freedom of association, and the
       right to receive information consistent with his status as an inmate, and
       deprive Al-Owhali of the equal protection of the law . . . .
                                            -11-
(emphasis added).

       It is not enough that Claim 4 “re-alleges and incorporates by reference” all

previous paragraphs. It is not ours to piece together Al-Owhali’s arguments for him.

United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011); see Vaz Dos Reis v.

Holder, 606 F.3d 1, 4 (1st Cir. 2010) (“When a party disavows a particular theory of the

case, it is not an appellate court’s proper role to make the disavowed argument for him.”).

We do not engage in guessing games to determine which arguments Al-Owhali may be

asserting. We take him at his word.

                                            IV

       For the foregoing reasons, we AFFIRM the district court’s dismissal.




                                           -12-
