Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

James v. Argeys

United States District Court, D. Colorado

February 26, 2015

HENRY L. JAMES, JR. Plaintiff,
v.
MR. ARGEYS, Shift Commander over BVCF inmates, Defendant.

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

CRAIG B. SHAFFER, Magistrate Judge.

THIS MATTER comes before the court on Defendant Argeys' Motion to Dismiss (doc. # 23), filed on August 11, 2014. By Minute Order (doc. #25), dated August 12, 2014, pro se Plaintiff Henry L. James, Jr. was directed to file any response he had to Defendant's Motion to Dismiss on or before September 9, 2014. Mr. James filed a Motion for Extension of Time (doc. #28) on September 24, 2014, requesting leave to file his response brief by November 2, 2014. On September 24, 2014, I granted Plaintiff's request and directed him to respond to the Motion to Dismiss on or before November 3, 2014. That Minute Order was mailed to Mr. James' current address at Fremont Correctional Facility in Canon City, Colorado. The court's records indicate that Plaintiff's copy of the September 24, 2014 Minute Order was not returned in the mail as undeliverable. To date, Mr. James has not responded to the Motion to Dismiss.

"[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response." Issa v. Comp USA, 345 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation marks and citation omitted). "This is consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Id. at 1177-78. "Consequently, even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." Id. I have carefully considered the pending motion, the entire court file and the applicable case law.

FACTUAL BACKGROUND

Mr. James initiated this action on April 7, 2014 with the filing of his Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a pro se Prisoner Complaint, along with attached exhibits. On April 10, 2014, Magistrate Judge Boyd Boland directed Mr. James to file an amended complaint after concluding that the original complaint failed "to allege facts that demonstrate how each of the named defendants personally participated in the asserted constitutional violations." Plaintiff also was told that his amended complaint "must comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and must set forth "simply and concisely, his specific claims for relief, including the specific rights that allegedly have been violated and the specific acts of each defendant that allegedly violated his rights." See doc. #6.

On May 6, 2014, Mr. James filed his Amended Complaint asserting under 42 U.S.C. § 1983 violations of his Eighth Amendment right against cruel and unusual punishment allegedly perpetrated by Warden Lenaerich, Case Manager Denwalt and Shift Captain Argeys, who were then assigned to the Buena Vista Correctional Facility (BVCF), in Buena Vista, Colorado. With an Order (doc. #10) dated May 14, 2014, the district court found that Mr. James had "failed to make any allegations demonstrating the personal participation of Warden Lenaerich or Case Manager Denwalt in the asserted constitutional violation" and dismissed the claims against those two defendants as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b).

The only claim remaining in this action is directed against Shift Captain Argeys and alleges a violation of Plaintiff's "Eighth Amendment right to be free from cruel and unusual punishment." More specifically, Mr. James asserts that on March 19, 2014, he spoke with Defendant Argeys about "possible problems with me and some other inmates here at the facility BVCF." After Plaintiff provided the names of those individuals, Defendant Argeys "handcuffed me and put me in segregation." Mr. James alleges that Defendant Argeys placed him in punitive without "[filing] a complaint or [making] any record of [Plaintiff] being in segregation." Plaintiff further claims that while in segregation, he was "denied all my rights such as religious (sic.), not being able to contact my family on the phone or my attorney on my appellate proceeding, " and that he was "handcuffed to and fro from the shower as well as handcuffed and shackled to and fro from the yard." Mr. James seeks an order requiring Colorado Department of Corrections (CDOC) Headquarters "to move me to another Level III medium facility as soon as possible, "[1] and to compensate him for the time he spent in punitive segregation in the amount of "$150.00 to $300.00 a day."

Defendant Argeys has moved to dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), arguing that Mr. James' claim is barred by the Eleventh Amendment and the doctrine of qualified immunity. Defendant also contends that Plaintiff's claim for compensatory damages is barred by the Prison Litigation Reform Act in the absence of any suggestion that Mr. James suffered a physical injury.

ANALYSIS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss may be granted if the court lacks subject matter jurisdiction. The determination of subject matter jurisdiction is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). The court applies a rigorous standard of review when presented with a motion to dismiss pursuant to Rule 12(b)(1). Consumers Gas & Oil, Inc. v. Farmland Indus. Inc., 815 F.Supp. 1403, 1408 (D. Colo. 1992)

Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. A court lacking jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking. A Rule 12(b)(1) motion to dismiss must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction. The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

Stine v. Wiley, Civ. No. 07-cv-01250-WYD-KMT, 2008 WL 4277748, at *3 (D. Colo. 2008) (internal quotation marks and citations omitted).[2]

Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitations of the elements of a cause of action will not do." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Id. As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007),

the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

"The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim above the level of mere speculation. Id. The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

While pro se pleadings should be "construed liberally and held to a less stringent standard than formal proceedings drafted by lawyers, " Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), that standard does not override a pro se plaintiff's responsibility to provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. See Willis v. MCI Telecomms., 3 F.Supp.2d 673, 675 (E.D. N.C. 1998). This court cannot be a pro se litigant's advocate. Hall, 935 F.2d at 1110. Just as importantly, a plaintiff may not defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not been pled. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

1. A Claim Against Defendant in his Official Capacity

The Amended Complaint does not clearly indicate whether Defendant Argeys is being sued in his individual capacity, his official capacity, or both. Where a plaintiff fails to indicate the nature of the liability sought, the court should look to "the substance of the pleadings and the course of the proceedings' to determine whether the plaintiff is suing the defendants in their individual capacities or their official capacities, or both." Arceo v. City of Junction City, Kansas, 182 F.Supp.2d 1062, 1089-90 (D. Kan. 2002) (quoting Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993)). Here, where the Amended Complaint is not completely clear, the court will presume that Defendant Argeys has been sued both in his official and individual capacities.

Assuming that Mr. James is suing Defendant in his official capacity, he is in reality attempting to impose liability on Mr. Argeys' employer, the Colorado Department of Corrections. See Meade v. Grubbs, 841 F.2d 1512, 1529 (10th Cir. 1988). A suit against a state official in his or her official capacity is treated as a suit against the state. Hafer v. Melo, 112 S.Ct. 358, 361 (1991). Absent a waiver, the Eleventh Amendment forbids a suit for damages against a state in federal court. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir. 1993) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Eleventh Amendment immunity extends to the states themselves and to those governmental entities that are "arms of the state." Ambus, 995 F.2d at 994. States, state officials sued in their official capacities, and governmental entities that are considered "arms of the state" are not "persons" within the meaning of 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Such entities cannot be sued for monetary damages arising from alleged conduct which deprives a plaintiff of his or her civil liberties. The Colorado Department of Corrections is an arm of the state and thus is entitled to Eleventh Amendment immunity. If the Eleventh Amendment applies, it confers total immunity from suit, not merely a defense to liability. Ambus, 995 F.2d at 994 (citation omitted). Thus, any claim for money damages against Defendant Argeys in his official capacity is barred by the Eleventh Amendment and properly dismissed with prejudice for lack of subject matter jurisdiction.

2. Physical Injury

It is well-established that in an action brought pursuant to § 1983, a plaintiff must prove not only a constitutional violation, but also demonstrate that the constitutional deprivation caused him some actual injury. Miner v. City of Glen Falls, 999 F.2d 655, 660 (2d Cir. 1993). The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, has heightened this requirement by barring a prisoner from bringing a civil action "for mental or emotional injury suffered while in custody without a prior showing of physical injury." See 42 U.S.C. § 1997e(a) and (e).[3]

Although Mr. James alleges that he was subjected to cruel and unusual punishment during the period he spent in punitive segregation, a careful reading of the Amended Complaint finds no allegation or use of the phrase "physical injuries." Plaintiff's "Request for Relief" states, without elaboration, that he was placed on "mental medication" on April 10, 2014 apparently as a result of his confinement in segregation. "[A]lthough claims for mental and emotional distress can be brought pursuant to § 1983, ... § 1997e(e) provides that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms.'" Turner v. Schultz, 130 F.Supp.2d 1216, 1222-23 (D. Colo. 2001) (quoting Perkins v. Kansas Department of Corrections, 165 F.3d 803, 807 (10th Cir. 1999)). See also Flanery v. Wagner, No. 98-3235, 182 F.3d 931, at *2 (10th Cir. May 19, 1999) (holding that the trial court properly granted summary judgment as to plaintiff's claim for compensatory damages where plaintiff failed to show that he suffered physical injuries as a result of defendant's alleged conduct). For example, where inmates have alleged that defendants were deliberately indifferent to their safety or welfare, or inflicted emotional injury by depriving them of basic necessities of life, courts have applied section 1997e(e) to restrict the availability of judicial remedies if there is no showing of physical injury. See, e.g., Mason v. Schriro, 45 F.Supp.2d 709, 716 (W.D. Mo. 1999) ("a review of cases from other courts indicates that [§ 1997e(e)] is most frequently applied where plaintiff alleges that defendants' actions have caused him to fear physical injury and fear for his safety and welfare, but he fails to show any physical injury"). Moreover, "a number of courts have held that a prisoner cannot satisfy Section 1997e(e) by alleging only that he suffered from the physical manifestations of mental or emotional injuries." Hughes v. Colorado Department of Corrections, 594 F.Supp.2d 1226, 1238 (D. Colo. 2009).

Quite simply, the Amended Complaint contains no factual allegations that would demonstrate or even infer that Mr. James suffered physical injury caused by conduct attributable to the Defendant. This omission is fatal to Plaintiff's claim for compensatory damages. Nevertheless, Mr. James would not be precluded from recovering nominal or punitive damages if he were to prevail on the merits. See, e.g., Wares v. VanBebber, 391 F.Supp.2d 1237, 1253 (D. Kan. 2004).

3. Qualified Immunity

Defendant Argeys has raised the defense of qualified immunity as to the single claim asserted against him. Under the doctrine of qualified immunity, government officials are immune from civil damages liability for constitutional torts as long as their actions could reasonably have been thought consistent with the rights they allegedly violated. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity protects defendants not only from liability, but also from suit. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Such immunity is qualified in that it does not obtain when otherwise immune officials violate clearly established statutory or constitutional rights of which a reasonable person would have known." Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1260 (10th Cir. 1998) (quoting Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). Whether Defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).

This court must review Defendant's claim of qualified immunity "under the customary motion to dismiss standard." Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. However, the court is also mindful of the United States Supreme Court's admonition that a ruling on the issue of qualified immunity should be made at the earliest possible stage of the proceeding in order to preserve the protections of the privilege. See Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).

Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted). In determining whether a right is clearly established, the relevant inquiry is "whether it would be clear to a [reasonable government official] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Id. The plaintiff bears the burden of showing with particularity facts and law establishing the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).

The defense of qualified immunity also implicates the pleading requirements of Fed.R.Civ.P. 8(a). Robbins v. Oklahoma, 519 F.3d at 1248. Qualified immunity insures that public officials are not subjected to "broad-ranging discovery' that can be peculiarly disruptive of effective government." Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987).

Although we apply "the same standard in evaluating dismissal in qualified immunity cases as to dismissals generally, " complaints in § 1983 cases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically involve complex claims against multiple defendants.... Without allegations sufficient to make clear the "grounds" on which the plaintiff is entitled to relief, it would be impossible for the court to perform its function of determining, at an early stage in the litigation, whether the asserted claim is sufficient clear.

Robbins, 519 F.3d at 1249. The court will proceed to apply these standards to the claim asserted in the Amended Complaint.

A. Plaintiff's Eighth Amendment Claim

The Eighth Amendment prohibits cruel and unusual "punishments, " not cruel and unusual "conditions." Farmer v. Brennan, 511 U.S. 825, 832 (1994). Where an Eighth Amendment claim is based upon conditions of confinement, an inmate must demonstrate that the deprivation suffered was "objectively sufficiently serious, '" and that the defendant had a "sufficiently culpable state of mind" or was "deliberately indifferent" to the inmate's health or safety. Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990). A defendant acts with deliberate indifference if his or her conduct "disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Id. at 1496. The Supreme Court explained the test for deliberate indifference:

We hold... that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer, 511 U.S. at 837. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997). "To be guilty of deliberate indifference, the defendant must know he is creating a substantial risk of bodily harm." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks and citation omitted).

The Amended Complaint fails to properly allege a violation of the Eighth Amendment based upon the conditions of Mr. James' placement in punitive segregation. Conditions of confinement that constitute cruel and unusual punishment must be measured by evolving standards of decency that mark the progress of a maturing society. Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981) (Eighth Amendment violated only when an inmate is deprived of the "minimal civilized measure of life's necessities"). The Eighth Amendment requires prison officials to "provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care." Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)). See also Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) ("state must provide... reasonably adequate ventilation, sanitation, bedding, hygienic materials and utilities (i.e., hot and cold water, light, heat, plumbing)"); Finney v. Arkansas Bd. of Corrections, 505 F.2d 194, 207-08 (8th Cir. 1974) (holding that a prisoner in punitive solitary confinement should not be deprived of "basic necessities including light, heat, ventilation, sanitation, clothing and a proper diet").

The Amended Complaint does not allege a denial of basic necessities, such as food, clothing, shelter or sanitation. Rather, Mr. James summarily alleges that he was denied "religious" rights and was prevented from contacting his family and attorney on the telephone. He also claims that he was handcuffed while moving to and from his cell. Those allegations, standing alone, do not describe conditions of confinement "sufficiently serious" to constitute cruel and unusual punishment. Moreover, the Amended Complaint does not set forth any facts that would demonstrate Defendant Argeys could have drawn and actually did draw the inference that Plaintiff's conditions of confinement in punitive segregation posed a substantial risk of serious harm. In the absence of additional well-pled facts, I conclude that Mr. James' allegations fail to state a claim that Defendant Argeys subjected to him to a substantial risk of serious harm in violation of the Eighth Amendment.

B. A Possible Due Process Claim

While the Amended Complaint expressly invokes the Eighth Amendment, the allegations state that Defendant Argeys placed Mr. James in punitive segregation without filing a complaint or preparing the necessary record in support of that action. As a result of those omissions, Mr. James contends that he spent approximately 66 days in punitive segregation without any administrative record that would support that action. Because the court must liberally construe Plaintiff's pro se pleadings, I address whether Mr. James' allegations as sufficient to support a claim under the Due Process Clause of the Fourteenth Amendment.

As the Tenth Circuit explained in Meek v. Jordan, 534 F.Appx. 762, 765 (10th Cir. 2013), on a motion to dismiss, the court must decide a threshold question: has the plaintiff alleged facts that would plausibly implicate a protected liberty interest?

For inmates being punished for misconduct, a liberty interest exists only when the penalty lengthens the confinement or involves an "atypical and significant hard ship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).

Id. In this case, it appears that the length or duration of Plaintiff's confinement did not change as a result of the time he spent in punitive segregation at BVCF. Thus, as in Meek, the issue in this case "is whether 60 days [or so] in punitive segregation would involve an atypical and significant hardship on [Mr. James] in relation to the ordinary incidents of prison life." Id.

In analyzing a prisoner's due process claim, the court's inquiry does not focus on the language of specific prison regulations, but rather on the specific conditions alleged in the complaint relative to the ordinary incidents of prison life. Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks and citation omitted). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S. at 485-87).

As a general proposition, prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence"), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (Colorado laws and regulations do not entitle inmates to remain in the general population absent certain conduct).

The Tenth Circuit has identified relevant factors to consider when determining whether placement in administrative segregation implicates a protected liberty interest: (1) whether "the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) [whether] the conditions of placement are extreme; (3) [whether] the placement increases the duration of confinement...; and (4) [whether] the placement is indeterminate." Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007). "While courts in this circuit have used these factors to guide the liberty interest analysis, we have never suggested that the factors serve as a constitutional touchstone." Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012) (citations omitted). And "any assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." DiMarco, 473 F.3d at 1342 (citation omitted).

In this case, it appears that Mr. James was placed in punitive segregation at BVCF for no more than 66 days.[4] Placement for that limited duration, standing alone, does not create a cognizable liberty interest that triggers the protections of due process. See, e.g., Gaines v. Stenseng, 292 F.3d 1222, 1226 (10th Cir. 2002) ("Finally, we note that the holding in this case is limited to the length of the seventy-five day disciplinary segregation. Disciplinary segregation for some lesser period could fail as a matter of law to satisfy the atypical and significant requirement in a case in the future.") (internal quotation marks and citation omitted)). Cf. Meek, 534 F.Appx. at 765 (plaintiff failed to plead "any facts that would plausibly indicate that 60 days in disciplinary segregation is atypical in relation to the ordinary incidents of prison life") (citing Hoskins v. Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005) (two months in punitive segregation did not trigger a liberty interest); Scott v. Crowley County Correctional Facility, No. 03-1253, 2003 WL 22093917, at *2 (10th Cir. Sept. 10, 2003) (65 days in segregation did not impose an "atypical and significant hardship in relation to the ordinary incidents of prison life"); Blum v. Fed. Bureau of Prisons, No. 98-1055, 1999 WL 638232, at *3 (10th Cir. Aug. 23, 1999) (ninety-day disciplinary detention in segregation did not differ in degree and duration from ordinary incidents of prison life to create a protected liberty interest).

As for his specific conditions of confinement while in punitive segregation, Plaintiff contends, in part, that his ability to communicate with family members and his attorney was restricted. Yet, a prisoner does not have a protected liberty interest in visitation privileges. See Jenner v. McDaniel, 123 F.Appx. 900, 905 (10th Cir. 2005). Cf. Overton v. Bazzetta, 539 U.S. 126, 137 (2003) (restrictions on visitation privileges do not represent "a dramatic departure from accepted standards for conditions of confinement"); Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (holding that plaintiff had no constitutional right to visitation privileges); Dunford v. McPeak, No. 7:08cv00018, 2008 WL 204481, at *2 (W.D. Va. Jan. 24, 2008) ("[n]either prisoners nor would-be visitors have a constitutional right to visitation... [i]n sum, visitation is a privilege, not a constitutional right"). Similarly, Mr. James' claim of reduced access to legal information does not establish a protected liberty interest in the absence of any alleged actual injury. Cf. Watson v. Dorsey, No. 99-2205, 215 F.3d 1338 (10th Cir. Feb. 29, 2000); Vasquez v. Zavaras, No. 95-1501, 82 F.3d 427 (10th Cir. Apr. 9, 1996); Gorton v. Miller, No. CIV-08-1342-F, 2009 WL 2252112, at *3 (W.D. Okl. Jul. 28, 2009). See also Lewis v. Casey, 518 U.S. 343, 349-53 (1996) (a plaintiff alleging denial of access to the courts must demonstrate he has suffered actual injury by showing that the defendant's acts hindered his ability to pursue a non-frivolous legal claim); Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir. 1978) "restricted access to the law library is not per se denial of access to the courts").

Even if the court broadly construes the Amended Complaint to encompass a due process claim, Mr. James has failed to allege facts that plausibly state a protected liberty interest. Without an underlying liberty interest, Plaintiff was not deprived of constitutionally mandated due process protections. Accordingly, the Amended Complaint must be dismissed as to Defendant Argeys.

4. Injunctive Relief

Actions in federal court seeking injunctive relief against state officials are not always barred by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123, 159-60 (1908) (holding that the Eleventh Amendment generally does not bar official capacity claims seeking prospective injunctive relief from a state official). See also Will, 491 U.S. at 71 n. 10 ("Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.'") (quoting Kentucky v. Graham, 473 U.S. at 167 n. 14).

Plaintiff's Amended Complaint requests injunctive relief in the form of an order requiring the CDOC Headquarters "to move [him] to another Level III medium facility as soon as possible."[5] See doc. #19. As Plaintiff is not longer at BVCF, his request for injunctive relief is now moot and should be denied on that basis. See Ricco v. Conner, No. 04-3261, 146 Fed.App'x. 249, 253 (10th Cir. Aug. 8, 2005) (prisoner no longer in administrative segregation does not have viable claims pertaining to the administrative segregation sanction) (citation omitted); Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (inmate's claims for declaratory and injunctive relief regarding prison conditions were moot when he was transferred to another facility and was no longer subject to those conditions) (citations omitted); Weaver v. Wilcox, 650 F.2d 22, 27 n. 13 (3d Cir. 1981) (stating that prisoner's transfer from the prison moots claim for injunctive and declaratory relief with respect to prison conditions).

CONCLUSION

In view of the foregoing analysis, Defendant Argeys' Motion to Dismiss (Doc. #23) is GRANTED. No claims or Defendants remaining, this civil action is dismissed in its entirety.

Attorneys and Law Firms

Mikeal Glenn Stine, Florence, CO, pro se.

J. Benedict Garcia, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER AFFIRMING AND ADOPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION

WILEY Y. DANIEL, District Judge.

I. Introduction

*1 This matter is before the Court on the Defendant's Motion to Dismiss which was filed on October 9, 2007 (docket # 21). The matter was referred to Magistrate Judge Mix for a recommendation by Order of Reference dated October 10, 2007. Magistrate Judge Mix issued a Recommendation on August 8, 2008, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b), D.C.COLO.LCivR. 72.1.

II. Analysis

Magistrate Judge Mix recommends that Defendant's Motion to Dismiss be granted. On August 15, 2008, Plaintiff filed a timely Objection, which necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1).

I now turn to the merits of the Recommendation. Magistrate Judge Mix found that Plaintiff's claims pursuant to Bivens against Defendant Ron Wiley in his official capacity are barred by sovereign immunity and recommended that these claims be dismissed for lack of subject matter jurisdiction. Recommendation at 7.

As to the Plaintiff's Claims One and Two, Magistrate Judge Mix found that although asserted as two separate claims they allege the same disparate and discriminatory treatment by Defendant and should be analyzed as one equal protection claim. Id. She also found that Plaintiff has not alleged that Defendant acted based upon a discriminatory intent or motive. Further, she found that Plaintiff does not allege that he experienced different conditions than other similarly situated inmates in the "C-Range" SHU. Nor has he alleged that his a member of a constitutionally protected class or that he has been denied a fundamental right. Id. at 8. Therefore, Defendant's action of prohibiting radios need only bear a rational relation to a legitimate state purpose. Id. (citing Vacco v. Quill, 521 U.S. 793, 799 (1997)). Magistrate Judge Mix found that Plaintiff's Complaint fails to allege facts sufficient to overcome the presumption of reasonableness applied to prison policies and Plaintiff's Claims One and Two should be dismissed. Id. at 10. I agree with Magistrate Judge Mix that Plaintiff's Claim One and Two should be dismissed.

As to the First Amendment claim, Magistrate Judge Mix found that Plaintiff merely makes a conclusory statement that his First Amendment rights were violated, that he does not state that his beliefs are religious in nature, that he has not alleged any facts showing the inability to watch religious programing was necessary to the practice of his religion, and that he has not clearly described the nature of the religious practice or ritual he was prevented from conducting or its relevance to his religion. Id. at 11. Therefore, Magistrate Judge Mix found, in the absence of such allegations, Plaintiff cannot show a violation of his First Amendment Free Exercise rights and Plaintiff's Claim Three must be dismissed. Id. I agree with Magistrate Judge Mix that Plaintiff's Third Claim for relief should be dismissed.

*2 Plaintiff objects to the Recommendation asserting that it is not his fault that the Court did not receive his response to the Motion to Dismiss and that because he is a pro se Plaintiff Magistrate Judge Mix should allow him to amend the Complaint. Plaintiff cites no case law and fails to provide any specific arguments as to why he believes Magistrate Judge Mix's recommendation is misplaced. While I acknowledge that Plaintiff is unhappy with Magistrate Judge Mix's recommendation, such complaints do not constitute a valid legal objection.

Having reviewed Magistrate Judge Mix's Recommendation and Plaintiff's Objection, I find that the Recommendation is well-reasoned and thorough. Accordingly, for the reasons stated above, it is

ORDERED that the Recommendation of United States Magistrate Judge (filed August 8, 2008) is AFFIRMED AND ADOPTED. In accordance therewith, it is

FURTHER ORDERED that Defendant's Motion to Dismiss, filed October 9, 2008 (docket # 21) is GRANTED. It is

FURTHER ORDERED that this case is DISMISSED.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KATHLEEN M. TAFOYA, United States Magistrate Judge.

This matter is before the court on "Defendant's Motion to Dismiss" (Doc. No. 21). Jurisdiction is premised upon 28 U.S.C. § 1331 (2007) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

FACTUAL BACKGROUND

1. Facts

The following facts are taken from Plaintiff's Prisoner Complaint and the parties' submissions with respect to this Recommendation. Plaintiff is an inmate at United States Penitentiary in Florence, Colorado ("ADX Florence"). (Amended Prisoner Compl. at 2 [hereinafter "Compl."] [filed July 9, 2007].) Plaintiff states he was housed in "administrative housing" from October 2, 2006, through February 23, 2007, and, at the time of the filing of the Complaint, he was "pending" administrative detention ("AD") in Special Housing Unit ("SHU"). (Id. at 3.)

In Claim One, Plaintiff asserts Defendant violated mandates of 28 C.F.R. § 541.22, thereby violating his liberty interest by not allowing radio or television. (Id. at 3-4.) In Claim Two, Plaintiff asserts Defendant has discriminated against him by not allowing him a radio with headphones, thereby violating his equal protection rights. (Id. at 5.) In Claim Three, Plaintiff asserts he is being denied free exercise of religion because he is not allowed to listen to or watch religious services through closed circuit television. (Id. at 6.) He claims without television and radio, he is denied the ability to practice any type of religion. (Id. )

Plaintiff has named Ron Wiley, the Warden of ADX Florence, as a defendant in both his individual and official capacities. (Id. at 2.) Plaintiff seeks equitable relief and money damages. (Id. at 8.)

Defendant has filed a motion to dismiss, asserting that (1) this court lacks jurisdiction over Plaintiff's official capacity Bivens claims; (2) there was no equal protection violation; (3) there was no religious violation; (4) 18 U.S.C. § 3626 prohibits the court from ordering the Bureau of Prisons to provide all inmates with radios; and (5) Defendant is entitled to qualified immunity. (Defendant's Mot. to Dismiss [hereinafter "Mot."] [filed October 9, 2007].)

2. Procedural History

*3 Plaintiff filed a Petition for Writ of Mandamus ("Writ") on June 14, 2007. (Doc. No. 3.) On June 18, 2007, Magistrate Judge Boyd N. Boland sent an order stating the writ would be construed as complaint pursuant to Bivens. (Doc. No. 4.) In his order, Magistrate Judge Boland directed Plaintiff to file an amended complaint within thirty days. (Id. ) Plaintiff filed his Amended Prisoner Complaint on July 9, 2007. ("Compl.") On October 9, 2007, Defendant filed his motion to dismiss. (Mot.) No response or reply have been filed.1 This motion is ripe for review and recommendation.

1 Plaintiff states in a "Motion for Status Conference" filed on April 11, 2008. that he filed a response to the motion to dismiss "on or about November 28, 2007." (Doc. No. 45, Mot. for Status Conference at 1.) The court has reviewed the entire docket in this case, as well as the dockets in all other cases filed by Plaintiff in this District and pending in late-November/early-December 2007, including 07-cv-00121-WYD-KLM; 07-cv-00799-WYD-KLM; 07-cv-01839-WYD-KLM; 07cv-02203-WYD-KLM. The court has been unable to locate any filing resembling a response to the motion to dismiss. In addition, in his response to the Motion for Status Conference, Defendant states, "Plaintiff never responded to the motion to dismiss."(Doc. No. 48, Resp. to Mot. for Status Conference at 3.) Therefore, this court must conclude that Defendant was never served with a response, and Plaintiff never filed a response.

STANDARD OF REVIEW

The court notes at the outset that because Plaintiff appears pro se, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

1. Lack of Subject Matter Jurisdiction

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter."Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). A Rule 12(b) (1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

2. Failure to State a Claim Upon Which Relief Can Be Granted

*4 Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007)." The court's function on a Rule 12(b) (6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted).

Thus, all well-pled factual allegations in a complaint are accepted as true and construed in the light most favorable to the plaintiff. Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.2007). Further, the court is to make all reasonable inferences in the plaintiff's favor. Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007), the Supreme Court articulated a new "plausibility" standard, under which a complaint must include "enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.

The issue in reviewing the sufficiency of a plaintiff's complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ( overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Although a plaintiff does not need to state each element of his claim precisely, he must plead minimal factual allegations on those material elements that must be proved. See Fed.R.Civ.P. 8(a); Hall, 935 F.2d at 1110.

ANALYSIS

1. Bivens Claims and Sovereign Immunity

In Bivens, 403 U.S. at 388, the Supreme Court recognized "an implied private right of action for damages against federal officers alleged to have violated a citizen's constitutional rights." Correctional Services Corporation v. Malesko, 534 U.S. 61, 66 (2001)." To establish a Bivens cause of action, a party must have some evidence to support finding that [a] federal agent acting under color of such authority violated some cognizable constitutional right of plaintiff." Hron v. Jenkins, 15 F.Supp.2d 1082, 1085 (D.Kan.1998) (citing Bivens, 403 U.S. at 388).

"If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity." Malesko, 534 U.S. at 72." The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP." Malesko, 534 U.S. at 72. See also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir.2005) ("a Bivens claim lies against the federal official in his individual capacity - not... against officials in their official capacity"); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (doctrine of sovereign immunity precludes a Bivens action against the United States or any agency thereof); Weaver v. United States, 98 F.3d 518, 520 (10th Cir.1996) (claim for damages against a federal defendant in his official capacity is treated as a claim against the United States).

*5 Plaintiff's claims pursuant to Bivens against Defendant Ron Wiley in his official capacity are barred by sovereign immunity and are thus properly dismissed with prejudice for lack of subject matter jurisdiction.

2. Equal Protection

Plaintiff's Claims One and Two, although asserted as two separate claims, allege the same disparate and discriminatory treatment by Defendant in not allowing Plaintiff a radio or television in the SHU. Therefore, Claims One and Two will be analyzed as one claim for violation of Plaintiff's equal protection rights. "[T]he Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups." Washington v. Davis, 426 U.S. 229, 239 (1976). See also United States v. McHorse, 179 F.3d 889, 897 n. 1 (10th Cir.1999) ("While the Fifth Amendment contains no equal protection clause, the equal protection standards of the Fourteenth Amendment are incorporated into the Fifth Amendment's promise of due process") (citation omitted)." The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). The challenged disparate treatment must be the result of purposeful discrimination. Harris v. McRae, 448 U.S. 297, 323 n. 26 (1980).

To properly allege an equal protection claim, Plaintiff must plead sufficient facts to "demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002). Although unclear, it appears Plaintiff is alleging that some SHU inmates are treated differently with regard to possession of radios than "C-Range" SHU inmates and inmates in the General Population Unit. (Compl. at 4-5.) Plaintiff also states the C-Range inmates who are allowed to have access to radios and television are pending new murder and assault charges, whereas he is not. (Id. )

Plaintiff has not alleged that Defendant acted based upon a discriminatory intent or motive. See Watson v. City of Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir.1996) ("A plaintiff in an equal protection action has the burden of demonstrating discriminatory intent.") (citations omitted); Villanueva v. Carere, 85 F.3d, 481, 485 (10th Cir.1996) (Although "[t]he discriminatory purpose need not be the only purpose, ... it must be a motivating factor in the decision.").

Furthermore, even if Plaintiff properly alleged disparate treatment based upon intentional discrimination, the Complaint must also set forth facts demonstrating the disparate treatment lacks justification under the requisite degree of scrutiny. Veney, 293 F.3d at 731. Plaintiff does not allege that he experienced different conditions than other similarly situated inmates in the "C-Range" SHU. In fact, he alleges all inmates in the C-Range are denied access to radio and television. Plaintiff has not alleged that he is a member of a constitutionally protected class or that he has been denied a fundamental right, so the Defendant's action in prohibiting radios for certain SHU inmates need only bear a rational relation to a legitimate state purpose. See Vacco v. Quill, 521 U.S. 793, 799 (1997) (the Equal Protection Clause permits classifications and distinctions which neither burden fundamental rights nor target a suspect class, provided that such classification or distinction bears a rational relation to some legitimate end).

*6 When equal protection challenges arise in a prison context..., courts must adjust the level of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their facilities in a safe and secure manner. In a prison context, therefore, we must determine whether the disparate treatment is "reasonably related to [any] legitimate penological interests."... Accordingly, to state a claim upon which relief may be granted, [Plaintiff] must allege facts sufficient to overcome the presumption of reasonableness applied to prison policies.

Veney, 293 F.3d at 732 (citations omitted). See also Heller v. Doe ex rel. Doe, 509 U.S. 312, 319-20 (1993) ("a classification neither involving fundamental rights nor proceeding along suspect lines... cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose") (citations omitted); Jones v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 134 (1977) (holding that prison administrators "need only demonstrate a rational basis for their distinctions" when classifying inmates); Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir.1994) (to "withstand equal protection review, " the challenged classification "must bear only a rational relationship to a legitimate" penological concern).

A prison control unit such as the SHU is recognized as "an internal disciplinary mechanism." See United States v. Johnson, 223 F.3d 665, 673 (7th Cir.2000). Because the classification of prisoners based upon their situs of incarceration does not employ a suspect class or burden a fundamental right, it "is accorded a strong presumption of validity." Heller, 509 U.S. at 319. Here, Plaintiff states in response to his grievance regarding this issue, he was told that radios that meet security requirements are being sought. (Compl. at 4.) Security requirements are necessary to afford prison officials the "necessary discretion to operate their facilities in a safe and secure manner." Veney at 732. Plaintiff's Complaint fails to allege facts sufficient to overcome the presumption of reasonableness applied to prison policies. Id. Therefore, Plaintiff has failed to state a claim upon which relief can be granted, and Plaintiff's Claims One and Two are properly dismissed. Id.

2. Free Exercise of Religion

It is long established that inmates retain their First Amendment rights while incarcerated. Pell v. Procunier, 417 U.S. 817, 822 (1974) (addressing freedom of speech claims); Cruz v. Beto, 405 U.S. 319 (1972) (holding that inmates must be afforded a reasonable opportunity to practice their religion). An inmate's exercise of constitutional rights is necessarily limited, however, "both from the fact of incarceration and from valid penological objectives - including deterrence of crime, rehabilitation of prisoners, and institutional security." Pell, 417 U.S. at 822-23; see also, O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Accordingly, prison regulations which impinge on an inmate's constitutional rights are valid if they are "reasonably related to legitimate penological interests." Turner v. Salley, 482 U.S. 78, 89 (1987).

*7 The first questions in any free exercise claim are whether the plaintiff's beliefs are religious in nature, and whether those religious beliefs are sincerely held. Snyder v. Murray, 124 F.3d 1349, 1352 (10th Cir.1997) (citing United States v. Seeger, 380 U.S. 163, 185 (1965))." If either of these requirements is not met, a court need not reach the question of whether a legitimate penological interest outweighs the exercise of the First Amendment right because there is simply no free exercise' to protect." Kay v. Friel, No. 2:06-CV-23TS, 2007 WL 295556, at *2 (D.Utah Jan. 26, 2007) (citing Carpenter v. Wilkinson, 946 F.Supp. 522, 525 (N.D.Ohio 1996). Plaintiff's only allegation regarding denial of free exercise of religion is that "[a]t USP-Florence ADX all religions and services are done over institutional closed circuit T.V. and not by allowing A/D inmates in SHU to have T.V./radio" denies him free exercise of religion in accordance with the First Amendment. (Compl. at 6.) Plaintiff further alleges that without T.V. and radio, he is denied the ability to practice any type of religion as all services at ADX are conducted by closed circuit T.V. (Id. ) Plaintiff has failed to state anything other than a conclusory statement that his First Amendment rights have been violated. (Id. ) Plaintiff fails to allege any facts showing why he needs to watch religious programming to practice his religion, or how the inability to watch religious programming prevents him from practicing any type of religion. Therefore, Plaintiff has failed to state any facts which may lead the court to conclude that what beliefs he might have, whether those beliefs are religious in nature, and whether those beliefs are sincerely held. Snyder, 124 F.3d at 1352. Accordingly, Plaintiff's Claim Three is properly dismissed.

WHEREFORE, for the foregoing reasons, the court respectfully

RECOMMENDS that "Defendant's Motion to Dismiss" (Doc. No. 21) be GRANTED.

ADVISEMENT TO THE PARTIES

Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b) (1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiff's waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

D.Kan., D.C. No. 97-CV-3154.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT*.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

*1 After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff-Appellant Michael M. Flanery, appearing pro se, appeals the district court's entry of summary judgment in favor of Defendant-Appellee Danielle Wagner. Plaintiff initiated this action pursuant to 42 U.S.C. § 1983, alleging that Defendant and other prison officials violated his civil rights by discriminating against him on the basis of race, displaying deliberate indifference to his safety, and promoting a "[r]iotous" atmosphere between black and white inmates. R, Doc. 1 at 2. His claims seem to stem primarily from his allegation that Defendant started or spread a rumor among prison inmates that Plaintiff was a white supremacist and that he had asked for a swastika to use in his religious observances. Plaintiff claimed that by making this alleged statement Defendant violated prison rules and regulations and thereby violated his due process rights. Plaintiff further asserted that, as a result of Defendant's alleged statement, his life is in danger, he has been subjected to threats and questioning by black inmates, and he has suffered adverse psychological effects. Plaintiff sought injunctive and declaratory relief as well as compensatory and punitive damages. In addition to his complaint, Plaintiff submitted three motions for appointment of counsel to the district court. The magistrate judge denied these motions in an Order dated January 28, 1998.

In an Order dated July 31, 1997, the district court granted Plaintiff leave to proceed in forma pauperis and dismissed all named defendants except for Defendant Wagner. Additionally, the court ordered prison officials at the Lansing Correctional Facility to undertake an investigation of the complaint and submit a written report regarding the matters alleged in Plaintiff's complaint pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). Defendant subsequently submitted an answer to Plaintiff's complaint along with a Martinez report. In response, Plaintiff submitted a pleading entitled "Suggestions in Opposition to Defendant[']s Answer, " R., Doc. 20, in which he addressed the affirmative defenses asserted by Defendant. Defendant then filed a motion for summary judgment. Plaintiff submitted a response to the summary judgment motion which was accompanied by statements from various inmates with knowledge about his allegations.

The district court granted Defendant's motion for summary judgment on August 11, 1998. According to the court, Plaintiff's claim for money damages was precluded by a provision of the Prison Litigation Reform Act of 1995, which states: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The court also held that Plaintiff was not entitled to declaratory or injunctive relief because he presented no evidence that he was likely to suffer future injury as a result of any rumors started or spread by Defendant. Plaintiff timely filed a notice of appeal and the district court granted him leave to proceed on appeal in forma pauperis.

*2 On appeal, Plaintiff contends that the district court failed to apply the law and dismissed his complaint on improper reasoning. He also reiterates his claims that Defendant violated his right to due process by acting in deliberate indifference to his safety.

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. See Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. See Byers, 150 F.3d at 1274.

Due to his pro se status, we have construed Plaintiff's complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This action is subject to the Prison Litigation Reform Act because Plaintiff filed his complaint after its effective date. See Craig v. Eberly, 164 F.3d 490, 494 (10th Cir.1998) (stating that section 1997e(e) applies to cases commenced after its enactment). Section 1997e(e) of the PLRA requires plaintiff's to make "a prior showing of physical injury" to maintain a civil action for any mental or emotional injury suffered while in custody. 42 U.S.C. § 1997e(e). Because Plaintiff has not shown that he suffered any physical injury as a result of Defendant's alleged conduct, the district court properly entered summary judgment on his claim for compensatory damages. Cf. Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 807 (10th Cir.1999) (stating that suits seeking damages for mental and emotional distress "cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms'" (quoting Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir.1997)).

Although Plaintiff also sought punitive damages against Defendant, and although claims for such damages are not necessarily barred by section 1997e(e), see Perkins, 165 F.3d at 808 n. 6, punitive damages are available under 42 U.S.C. § 1983 only for conduct which is "shown to be motivated by evil motive or intent[ ] or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Plaintiff has made no showing that Defendant's alleged conduct rose to that level in this case. Accordingly, summary judgment was proper in this respect as well.

*3 Additionally, we agree with the district court that Plaintiff is not entitled to declaratory or injunctive relief. Plaintiff presented no evidence that Defendant initiated any rumor. In fact, the statements of Plaintiff's fellow inmates on which he relies suggest that another inmate may have initiated the rumor. See R., Doc. 29, 12/10/97 Letter from Frank Bolin to Michael Flanery at 1; 4/26/98 Affidavit of Ricky F. Gregg at 1-2. Further, although the evidence suggests that Defendant may have confirmed that she had heard a rumor about Plaintiff in response to an inquiry by an inmate, see R., Doc. 32 at 2 n. 1, there is nothing in the record to suggest that she told anyone else about the rumors or otherwise spread the rumors among the inmate population. Because Plaintiff failed to present any evidence supporting his claims, he has not established that Defendant engaged in any conduct for which declaratory or injunctive relief would be available.

If Plaintiff had succeeded in demonstrating that Defendant engaged in conduct for which declaratory or injunctive relief were appropriate, he still would be required to demonstrate the existence of a "real and immediate threat that he would again' suffer similar injury in the [relatively near] future." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). However, in light of our conclusion that declaratory and injunctive relief are inappropriate in this case, we need not reach the issue of whether Plaintiff has sufficiently demonstrated the existence of a threat of future injury.1

1 In addition, we need not address the thorny issue of whether allegations that a defendant spread rumors that a prisoner is a racist would, standing alone, be sufficient to prove the likelihood of future injury required to state a claim for declaratory or injunctive relief. In this case, Plaintiff likely would not be entitled to such relief in any event due to his evident success in convincing his fellow inmates that he is not a white supremacist. See R., Doc. 29, 2/2/97 Statement by Frank Bolin at 2; 12/10/97 Letter from Frank Bolin to Michael Flanery at 1.

The decision of the United States District Court for the District of Kansas is, therefore, AFFIRMED.

Attorneys and Law Firms

*763 Timothy Meek, Denver, CO, pro se.

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.

ORDER AND JUDGMENT*

* This order and judgment does not constitute precedent. 10th Cir. R. 32.1(A).
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2): 10th Cir. R. 34.1(G). The ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.