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Declaration of the JTF-GTMO Senior Medical Officer Addressing Petitioner Rabbani's Current
Health and Enteral Feeding Status" essentially concedes this point. (ECF#37(5; EOF#376-1).
In the Supplemental Declaration,the SMO informed the Court that on November 13,
2017,he "recommended Mr.Rabbani forinvoluntkyenteral feedingbecause immediate treatment
was necessary to prevent death or serious harm." (ECF #376-1 ^4). According to the SMO, on
November 13 the petitioner weighed 97.8 pounds, 4,6 fewer pounds than he weighed one month
earlier. {Id ^5). This weiglit loss represents a 4.5% decrease in body weight in 30 days. And
while the petitioner remained physically active, tlic SMO observed a marked decrease in, the
petitioner's facia! fat and a change in the prominence of the petitioner's shoulder blades that
indicated &further loss of muscle mass. {Id), Based on thes'c observations, the SMO Concluded
thatthe petitioner"now had a medical indication for an involuntary medical procedureto prevent
death or serious harm." (Id). If, as the SMO says, the petitioner was at risk of death or serious
hama, it can hardly be denied that the petitioner's healUi was in "a condition of urgency, one that
may produce death, degeneration, or extreme pain." {Nielsen, 746 F.3d at 66).
The petitioner was enterally fed only once foUowing the SMO's recommendation that
he be approved for involuntary feedings, and that feeding occurred on November 14,2017. (ECF
#376-1 116). According to the SMO's Supplemental Declaration, wbicb the Court finds credible,
the petitioner has since thai time compliantly consumed Ensure Plus in accordance with the JMG's
recommendations and has also (according to the guards at Guantanamo) eaten other food of his
own accord. {Id 1!1|7,10). .
But this does not change the Court's determination that the petitioner is sufiering from anobjectively, sufficiently serious medical condition. The petitioner's weight as ofNovember 17,
2017 (the most recent weight provided to the Court by the SMO) was 96.2 pounds, even lower riLDPURDDn ODAL OOHTjHIlia PllOTDOTDD ntrORtili'iTiIOH 12
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thanit wasa fewdaysearlierwhentheSMO recommended thepetitionerfor involuntary feedings.
{Id. ^10). In addition, the petitioner is anemic, has abnormal electrolytes, and remains at risk of
malnutrition.^ {Id. T118-10). The SMO himself states that once the petitioner longer has a medical indication for involunta^ enteial feeding, [the SMO] will request that tlie current
authorization for involuntary enteral feeding be revoked,^' implying that the petitioner'shealth is
still sufficiently at risk to justify involuntary feedmgs should he cease willingly to consume
nutrition. {Id. ^11). Andlastly, the SMO states that he is "concerned aboutthe possibility of an
underlying, incompletely differentiated niedical problem unrelated to his protest but possibly contributing to his successful ability to lose weight" {Id ^12).- In light of the petitioner's
continued eligibility for involuntary feeding and the possibility of comorbiditieS, the Court
concludes that the petitioner does have an objectively, sufficiently serious medical condition as
contemplated by Estelle and its progeny.
2. The SMO and JMG at Guanlanamo Have Not Been Deliberately Indifferent to the Petitioner's Serious Medical Needs.
Having established that he has a serious medical condition, the petitioner must now
showthatthosein chargeof his medical care at Guantanamo have beendeliberately indifferent to
his medical needs. This the petitioner fails to do.
The petitioner alleges that onSeptember 19,2017, the SMO had "ordered thatmedical
staffforego . .. long-standing policy and stop force-feeding the hunger strikers and cease the
^Concerning the risk ofmalnutrition, the SMO says that the petitioner "demonstrates physical signs ofmalnutrition without biochemical evidence ofmalnutrition." (EOF #27$-1 ^11). But the SMO also notes that "some biochemical markers [of malnutrition] are influenced by hydration status and can be *fhlsely normal.'" (/d ^8). Given the petitioner's dehydration, then, the Court isnot willing torule cutmalnutrition. Tobeclear, the Court isnot questioning themedicalJudgment of theSMO, who alsonotes thmthepetitioner bears someindications of malnutrition; theCourt isonly saying that for purposes ofthe threshold determination ofwhether thorc ison objeotively, sufficiently serious medical need, the Court takes the possibility ofa "false normal" seriously. riLDDUliDCRODAL OOXTAnro PROTDCmiD nirORMATION 13
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mecUcal monitoring offlielr now rapidly decUning health." (ECF #363-1 at 2). As characterized .* •
by the petitioner, this new policy was absolute^no more force'feedings—and demonstrated that the SMO and JMG were "no longer interested in preserving their health, or even their lives, regardless ofthe hunger strikers' wishes." (Jd at 7) This policy was enacted, according to the petitioner, coerce him to stophis peaceful strike." (Id at 9). Even when he requested aforce- feeding, the SMO refused it, stating that any harm he suffered as a result was his "own choice." {Id at 7). The petitioner asserts that the JMG ceased to take his weight on adaily basis or to provide medical observation andalso denied him nn^ical care generally. The Government's response reveals a much more nuanced situation than, the petiticiner's characterization.
The petitioner was one ofthe detainees whose status on the list was reviewed. In this review, the SMO noted that the petitioner's weight had been relatively stable at around 102 pounds for the past year (October 2016 - October 2017). Although this is significantly below the petitioner's ideal weight of129-335 pounds, the SMO noted that 'Svhen adetainee has lived long term in astate of undemutrition (low body weight), the body makes adjustments to live at that weight and the weight alone Is no longer an indicator of malnourishment." (ECF #368-2 ^15). riLDD unDDnaDAb •CQ^rrADiorROTCOTCDDtronJiiATroH • 14
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More important than the weight itself, then, are "[t]rends in the baseline weigjit (usual
bodyweight)," which is defined as "llie weight over the preceding 12 months " (Id), feentially,
the frame of reference for determining what is an acceptable weight for the detainee changes over
time. Therefore, it became muchless important that the petitioner's intake weight was 129pounds
and much more important that his weight had remained relatively stable for more than a year.
In that review, the SMO also noted that the petitioner had been observed eating solid
food on a daily basi.s (despite his claims of being on a hunger strike) and making smoothies for
himself. (Id. 1|I3). TheSMO estimated that thepetitioner's daily caloric intake was approximately
1200 kilocalories per day. (Id. TjlT), The SMO also noted that (contrary to the petitioner's
assertions) thepetitioner wasphysically andmentally active—climbing stairs; walking unassisted;
participating in recreational-time; engaging in conversation with tlie SMO, behavioral health unit
staff^ andotliers; etc, (Id. ^ 14,16-17).
Based on thepetitioner's stable weight, observed and estimated caloricintake, physical
and mental activity, and otherindicators, theSMO determined that involuntary feedings were no
longer necessary to prevent death or serious harm to the petitioner. (Id at 16-17). The SMO
found that "other than his low weight, [the petitioner did] not show any medical signs that would
support the continuation of enteral feeding" in September -2017. (ECF #368 at 15). The SMO
concluded that the petitioner was not malnourished and that he had no known medical condition
that even required daily monitoting. (Id). Therefore, the petitioner was removed from the list of
detainees approved for involuntary feedings. (ECF #368-2 16-17). As such, the initial decision to stop force-feeding the petitioner was not made with
IndiiTerence to his health, but was rather an informed decision made by an attentive medical care provider. The petitioner may not have liked that determination, but the petitioner's treatment riLDDU]fDDP.aCAL' oo> ?Tj \»to pnorDOTCD i>irom.tjMi oi t 15
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preferences are largely irrelevant to this analysis. (Esielle^ 429 U.S. at 107 C'Butthe question
whether [colain] forms of treatment is indicated is a classic example of a matter for medical
judgment A medical decision not to order an X-ray, or like measures, does not represent cruel
and unusual punishment."); United States ex rel. Hyde v. McGinnis, 429 F.2d 864,867 (2d Cir.
1970)(finding that a prisonerhas no right to the specific"type or scope of medical care which he
personally desires")).
Also baseless are the petitionerLs claims that he was refused medical care generally.
According to the SMO, the.petitioner was, aflerhis removal ftom the list, visually examined on a
daily basis by tlie JMG and could receive physical examinations if he wanted. (ECF#368-1 ^14).
But the petitioner did not w^t physical examinations or any other medical care. In fact, the
petitioner actively refused all medical care in the period following his removal from the list,
including denial care, gastroenterology evaluations, and even the provision of vitamins. (ECF
#368-2 16,19). What the Court faces is a situation in which a detainee refuses to participatein
his own healthcare, turns down repeated offers of care, and then claims medical, neglect. The
petitionercannot artificiallymanufacturea deliberate indifference claim in this manner.
Further reinforcing the Courf s conclusion is the fact that, afler the petitioner filed his
motion,the JMGconducted a medicul examination of the petitioner. In that review, the JMGfound
no evidence that the physical issues enumerated in tho petitioner's counscTs affidavits existed at
the time. (ECF #368 at IT). The SMO also informed the Court that, per standard medical
procedures, the petitioner would continue to be examined and thai he would be reconsidered for
involuntary feeding if "his physical appearance combined willi his weight or other factors suggested maln'ourishinent." (ECF #368-1 T|14). That is exactly what happened. When the petitioner's weight dropped significantly the second month after his involuntary feedings stopped, PILDD UUDnnaUAL oonTi'iiMO PiiOTrcrcD niromdjUTiON 16
UNCLASS1FIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASF Case l:05-cv-01607-RCL Document 379 *SEALED* Filed 12/29/17 Page 17 of 24 rfLDLJuinicii ncAL CQ?(Tj'i]H3 PnOTCGTDD II irQRIiJj'iTlOK he was reconsidered and rcapproved for involuntary feedings. (ECF #376 at 2). These am act the actions ofacallous and indifferent medical corps. Rather, the JMQ has perfoimed as attentive and responsible medical professionals should.
Finally, Ute Court turns to the SMO's "quip" that any harm befalling the petitioner following Ute cessation of the involuntary feedings was the petitioner's "own choice." The petitioner makes much of this statement in his briefs, arguing that it shows the deliberate indifference with which the SMO and the JMG in general regard the petitioner's life and health. TTie Court does not agree. The policy ofUte JMG is to approve adetainee for involuotatyfcedmgs only when medically necessary to prevent deaUi or serious harm," (ECF. #368-21|I3), Implicit In this standard is the rcalizaUon that there arc harms that can result from aHunger strike that do •not rise to the level ofa risk ofdeath or serious harm. These we allow adetainee to suffer. Only once ahunger striker is at risk of death or serious harm must the SMO and JMG intervene and perform involuntaiy enteral feedings. When exactly tiiis timearrives and when it ends is amedical determination requiring a"comprehensive, multi-feotor evaluation of the detainee's health" as descnbcd above. (ECF #368 at 13). Detainees are never happy with the determination no matter the result. Detainees have sued challetigiiig the determination that they Were at risk ofdeath or serious harm. (Jam.,- v. Obama. 742 F.3d 1023 (D.C. Cir. 2014)). Detainees have sued challenging the manner of force-feeding after adetermination. (M). And now adetainee sues challenging the determination that he was not at rLsk ofdeath or serious harm. In light ofthis, the Court interprels the SMO's statement not- to reflect deliberate indifference to the life and health of the petitioner. Rather, the statement, ifindeed it was made, was more likely an acknowledgment that our system tolerates acertain amount of suffering on the part of detainees who volimtaiily bring it upon themselves. nLGDUllDCnOCi'iL cpi iTAniD rnoTDCTDD niromiii'dTioii 17
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Havingconsidered all ofthe affidavitsand other evidencebefore it, the Court finds no
evidence that couldsupport a finding that the SMO and JMG have been deliberately indifferentto
the petitioHCT's serious medical needs. Instead,the Court finds that the SMO and JMG have been
remaricabiy attentive to the patient's needsand careful in their attemptsto balancethe petitioner's
right to engage in a hungerstrike withthe needto preserve the petitioner'slife. Forthesereasons,
the plaintiff is unlikely to show that he will succeed on the merits of his deliberate-indifference
claim.
B. The AH Writs Act
The petitioner's arg;ument concerning the All Writs Act is inseparably related to his
argument under the deliberate-indifTerence standsird. The petitioner argues' that the refusal of the
medical staff at Guantanamo to resume involuntary enteral feedings endangers his life and his
capacity to interact with his attorneys. If the petitioner dies, this Court will have obvious trouble
exercisingjurisdiction overhis habeas petition. Likewise, ifdiepetitioner's healthdegrades tothe
extent thatit "impedes theattorney-client relationship" because of fatigue, collapsing, and mental
and emotional instability, thenhis access andability to participate in habeas proceedings will be
impaired. (See Al-Oshan v. Obama, F. Supp. 2d 1,6 (D.D.C. 2010); Tumani v. Obama^ 598 F.
Supp. 2d 67, 70-71 (D.D.C. 2009)).
These arguments would be compelling if the Court, as a factual matter, actually
believed thatthe petitioner waslikely to die or become incapacitated in thenearfiiture. Butas the
Court discussed in great detail above, while thepetitioner has a serious medical condition, he is
also receiving excellent, attentive care. The medical staff at Guantanamo even resumed forced-
feedings briefly when the petitioner indicated that itwas necessary. Simply put, the Court has full confidence that themedical staffat Guantanamo isdoing itsJob andthat, as a factual matter, the riLDDUiroDIlDDjUj CCTlTAlfiC PnOTDCTDPPirOIUiCiMIOH 18
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plaintiffs lifeand health are not so threatenedas to pose any threat to this Courtis jurisdiction over
him.
The Court also finds that the relief the petitioner requests is inappropriate given the
availabilityofcoursesofaction short ofan extraordinary writ that can protect die patient's life and
health. First and fortnnost, the petitioner can end bis hunger strike.^ Short ofthat, the petitioner
may continue his hunger strike, but stop refusing the other medical procedures that have been
offered to him (suchas the gastrcenterology evaluations that could help the JMGto discoverthe
source of his bloody stools). The pointis diatmany of therisksto the petitioner'slife andhealth
are the result of his own choices. Ifhe truly is concernedabout preserving this Court's jurisdiction
over his habeas petitibn, he is fiee to stop placing himself at risk. The'Court does not think it
approimate to find that a petitioner may voluntarily pursue a course of actionthat threatens his
own life and thenpetitionfor an extraordinary writ commanding someone else to stop him when
it looks like he mightsucceed. The medical staffat Quantanamo has demonstrated that it willnot
allow the petitioner to die or come to serious barm. The Court will afibrd to the petitioner no
greaterrelief in the face of his chosencourse ofaction.
C. Conclusion
Forthese reasons, theCourt finds thatthepetitioner is unlikely to succeed onthemerits
of either his deliberate-indifference claim or his claim under the All Writs Act. For tliis reason
alone the Court could denyhis motion for a preliminary injunction. But the Court will proceed to
analyze the other Winter factors for thoroughness. •
^As the Court has previously mentioned, the petitioner may have done so already, (ECF #376-1 ^10), but without confirmafian from thepetitionerhimselfthe Courtwillnot assume thisto be true. riLDD UllDDRDDAL GOHTj'iIKO mOTDOTDD niTOIllilJHTIOK 19
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n. The Mtioner Docs Not Face Irreparable Injuiy Without Reliet The harm that the party pursuing apreiiminary injunction seeks to prevent may not be speculative or merely possible. lUther, the moving party must establish that irreparable harm is "likely in the absence ofan injunction." ((»7n/er. 555 U.S. at 22) (emphasis in original)). In this me, evaluating whether the petitioner is likely to feoe ineparable harm without an injunction is inseparably related to the analysis of the merits of the petitioner's claims. The harm that die peaUoner alleges is the "imminentdanger" that die SMO's chosen course ofaction represents to the petitioner's health. (ECF #363-1 at 16). As the Court has made clear, the policies and procedures that Guantanamo personnel have in place are sufficient to avoid the catastrophic consequences ofwhich the petitioner warns. Guantanamo perMiinel have not ceased the.petidoner's health. Hiey have not refiised to perfonn involuntaiy feedings vdien diey have found itnecessary. And the SMO's thorough evaluation offlte petitioner's health reveals that the petitioner is "medically stable." (ECF #376-1 ^11). For these reasons, the Court finds that the petitioner sfears ofdeath and "total organ fbilure" are overblown. (ECF ^363 at 1). The petitioner's health is stable and likely to remain so. For that reasons the Court fmds that the petitioner does not face arisk ofirreparable harm without injunctive relief. III. The Balance ofthe Equities Does Not Favor Granting Injunctive Relief. The third WinJer factor requires that the Court balance the equities ofthe case. (555 U.S. at 20). In this case, the balance ofthe equities does not favor the petitioner. Ihe petitioner argues that allowing an independent medical evaluation by anon- militarydoctor would pose no great burdenon the Oovemmait, The logistics ofthe visititselfare easy to arrauge. and the requirement that the medical officers at Guantanamo administer any treatments the non-military doctor may suggest is nothing more than "the requirement to provide riLCDunDDnomij- nm IT i n rTfrnnMiiLTIO)! 20
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care to prisoners of war." (ECF363-1 at 18). This assessment is incorrect. It is indeedeasy for a
non-military doctor to fly to Guantanamo. But requiring the medical officers at Guantanamo to
follow the orders of this supposedly independent doctor is much more than "the requirement to
providecareto prisoners of war"—it is a coup that subjects the medicaljudgment and authorityof
the JMG to whatever supposedly neutral physician the petitioner's counsel selects. The Court
agrees vrith theGovernment's characterization ofthepetitioner's requested reliefas"nothing short
of a full takeover of Petitioner's medical care by an expert of Petitioner's choosing, as well as
dictation byPetitipner of theprocedures at Guantanamo for dealingwitlihunger-striking detainees
and the requirement that JMG personnel conduct whatever medical procedures that Petitioner's
expert requests." (ECF 368at 29-30). This goes far beyond therequirement thattheUnited States
provide care to prisoners of war (or, more accurately, to detainees, because the petitioner is not
legally a prisoner of war). PLather, this is an attempt by the petitioner to receive thatto vidiich he
has no right, not just medical care, but "the type or scope of medical care which he personally
desires." {McGinnis, 429 F.2d at867). The burden the petitioner's requested reliefwould impose
on the Government, then, is much higher than the petitioner suggests.
TTie general upending of thechainof command amongthe medical decision-makers at
Guantanamo that the petitioner's requested relief would cause is not the only burden posed to the Government in this case. Other portions of the petitioner's requested relief present their own concerns. Of particular concern to the Court is the petitioner's request for the disclosiu-e of
comprehensive daily reports on the petitioner's physical and mental health, which the petitioner • requests to be delivered immediately to counsel even if they contain classified (or potentially classified) information. A request for a client's medical records is one thing. (See AUJoudi v. 406 F. sup, 2d 13, 20 (D.D.C. 2005) (ordering the production ofmedical records); ilusaytx nLGD UNDDRnCAL 00) ITAI?IDPROTEOTDD irOtUiti'iTI01 \ 21
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V. GateSj 588 F. Supp. 2d 7, 10-11 (D.D.C. 2008) (same); Tumani^ 598 F. Supp. 2d at 69-71
(same)). But a request for comprehensive daily reports with no initial rcgand to the potentially
classified nature of their contents is another. Granting thisrelief would require the medical staff
at Guantanamo toexpend an inordinate amount oftime tending to a single detainee—and that to a
detainee who has a habit of willfully refusing medical examinations—^and would require the
Government torisk thedisclosure ofclassified information unnecessarily. Inthis case, the burden
ofcomplying with thepetitioner's requests ismuch higher thaawould be thecase ifthe petitioner
merely requested a routine disclosure ofhis medicalrecords to counsel.
Against this burden, the petitioner sets forth his constitutional rights to adequate
medical care and tobe free from the"unnecessary and wanton infliction of paia'* (EOF #363-1 at
18 (quoting Estelle, 429 U.S. at 104)). But as the Court has already explained, the petitioner is
unlikely tosucceed inshowing that the Government hasdeprived him ofthese constitutional rights.
The balance ofthe equities, then, istitis: onthe one hand we have,the heavy burden ofsupplanting
the authority of the medical officers at Guantanamo with the will of physicians selected by the
petitioner's counsel and the administrative burden of comprehensive daily examinatioiis and the
unnecessary disclosure of classified information; and on theother hand we have the petitioner's
health, which is closely monitored bytheJMG and isthreatened, if at all, bythe petitioner's own
choices, and the petitioner's constitutional rights, which he cannot show are being violated. The equities inthis case, then, favor denying the injunction tliat the petitioner requests. IV. Injunctive Relief is Not in the Public Interest.
The petitioner argues that itwould harm the national security interests and image ofthe United States were he to starve to death. (ECF #363-1 at 19 {cixSxvgAi-Joiidi, 406 F. Supp. 2d at 20)). This statement is true on its face; the death ofadetainee in American custody resulting fiom riLDDUHBDRDCAL OOllTi'iniO raOTDOTDD DirOOJilAtlOR 22
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medical neglect would look very bad and certainly would not be in the public interest But the
statement presupposes that the petitioner will—or at least is likely to—be permitted to die as a
result of his hunger strike while under the care of the JMQ. That is not true. The harms to the
United States's national securityinterestsand imageof which the pditioner warns willnot come
aboutbecause, as the Court has alreadyexplained, the petitioneris receiving competent carefrom
an attentive medical staff that is aware of the petitioner's medical needs and is not disposed to
allowthe petitioner to witherawayand.die underits watch. .
The JMG's policy of conducting involuntary enteral feedings "when medically
necessary to prevent- death or serious harm" or when the petitioner's "physical appearance
combined with hisweight or otherfactots suggestfs] malnourishnlent" remains in fiill force.' (ECF
#368 at 12,-16). And the SMO and the JMG have demonstrated that they takes this policy
seriously, having briefly resumed involuntary enteral feedings of the petitioner when he
demonstrated signs of malnutrition and having continued monitoring his weight and nutrition^
intake since that time. (ECF #376 at 1~2). In addition, the Court believes the GovenunenCs
representation thatthe petitioner is fiilly capable of eating solidfood (which he has been observed
doing) and of drinking smoothies and Ensure Plus should eating prove uncomfortable. Forthese
reasons, the Court finds the petitioner's characterization of the newSMO's medical policies and
determinations as a "death sentence" to be gross hyperbole and his proffered harms to the public interest to bespeculative at best. (ECF #363-1 at 19).
While the harms to the public interest that the petitioner alleges are speculative, the Court also finds that granting die petitioner's requested relief would harm the public interest by creating a perverse incentive structure. The petitioner's arguments regarding the public interest boil down to this: "Give me what Iwant orI'll hurt myself, maybe even kill myself, and that would riLDD.UUDDRaDAL ooirrjkixo PROTDOTCD niromiiATiQ)^ 23
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look bad to the rest ofthe world." Such threats cannot be entertained. (Cf, Rodnguez,A^^V^6. at 953 ("A prisoner cannot force the prison to change its rules by going on ahunger strike and blaming the prison for his resulting loss ofweight. He cannot, in short, be permitted to engineer an Eighth Amendment violation.") (internal citations omitted)). Encouraging self-harm among inmates—at Guantanamo Bay or anywhere else—is not in the public interest. To do so would threaten the capacity of detention officers to maintain order. Detention officers must have flexibility to deal with situations such as the petitioners, flexibility sufficient to balance the requirement ofpreserving the health ofthe petitioner with tlie need to maintain order. Subjecting the SMO and JMG'S informed medical judgment to critical judicial oversight and the demands of physiciaiis selected by detainees* lawyers does not allow for that fle^ubility, Becau^ the harms to the public interest ofwhich the petitioner warns are speculative and improbable and because granting the petitioner's motion would be detrimental to the public interest in maintaining order and discouraging self-harm among detainees, the Court finds that thi.s factor weighs against granting apreliminary injunction. Conclusion
For these reasons, the Court will deny the petftioner's motion in its entirety. A separate order shall issue.
SIGNED this day ofDecember, 2017.
jUCL. HONOfiftABLE ROYCE LAMBERTH tlNITED STATES DISTRICT JUDGE riLCD UHUUK UUA'l ooMTj^nto rnoTccrrED ruromui^Tiort— 24
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