United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO DRAW CASE
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Shirocco Marquise Williams, was in the custody of the Federal Bureau of Prisons (BOP) at the Federal Correctional Institution at Englewood (FCI-Englewood) at the time he initiated this action. He now resides in Omaha, Nebraska. Mr. Williams filed a Prisoner Complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
On December 23, 2014, Magistrate Judge Gordon P. Gallagher reviewed the Complaint and determined that it was deficient because Plaintiff failed to allege the personal participation of each named Defendant in a deprivation of his constitutional rights. Further, it appeared that Plaintiff was seeking Bivens relief for the same conduct that was the subject of a Federal Tort Claims Act (FTCA) claim. Magistrate Judge Gallagher ordered Plaintiff to file an Amended Complaint, within thirty (30) days of the December 23 Order (ECF No. 9), addressing these issues.
In a January 28, 2015 minute order, Magistrate Judge Gallagher extended Plaintiff's deadline to file an Amended Complaint to February 28, 2015 (ECF No. 12). Mr. Williams was warned in the December 23, 2014 Order and in the January 28, 2015 minute order that failure to file an amended complaint by the court-ordered deadline may result in dismissal of this action without further notice.
Mr. Williams did not file an amended complaint, nor has he communicated with the Court since January 2015. This action is now subject to dismissal without prejudice, pursuant to Fed.R.Civ.P. 41(b), for Plaintiff's failure to comply with a Court order and to prosecute this action. However, the Court recognizes that the statute of limitations for Plaintiff's First Amendment Bivens claims may have elapsed,  which would render the dismissal prejudicial. See Gocolay v. N.M. Fed. Sav. & Loan, Ass'n, 968 F.2d 1017, 1021 (10th Cir. 1992) (recognizing that a dismissal without prejudice operates as a dismissal with prejudice where the statute of limitations has expired on the plaintiff's claims); Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158 (10th Cir. 2007) (instructing that if district court dismisses a complaint with prejudice pursuant to Fed.R.Civ.P. 41(b), court must apply factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (hereinafter " Ehrenhaus factors"). Rather than apply the Ehrenhaus factors to determine whether dismissal of this action is appropriate pursuant to Fed.R.Civ.P. 41(b), the Court will consider the allegations of the Complaint to determine whether Plaintiff has stated an arguable claim for relief against any of the Defendants.
Because Mr. Williams was a prisoner when he initiated this action and paid the $400.00 filing fee, the Court reviews his Complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A(b)(1), the Court is required to dismiss the Complaint, or any portion thereof, that is frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Complaint liberally because Mr. Williams is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed, in part, and the remainder drawn to a presiding judge and, if applicable, to a magistrate judge.
I. The Complaint
Mr. Williams alleges in the Complaint that on October 5, 2012, the FCI-Englewood mail room staff received three paperback books sent to Plaintiff from an outside publisher, titled "Letters to Penthouse" and "Stella Does Hollywood, Black" - which Plaintiff was allowed to possess. (ECF No. 1, at 8, 16). On March 18, 2013, Plaintiff ordered five paperback books from the same publisher, at a total cost of $34.25, which were rejected by Defendant Garcia, the former FCI-Englewood Warden. (Id. ). The books were titled "Letters to Penthouse, " "Stella Does Hollywood, Black, " and "Penthouse Uncensored." (Id. at 8, 17). Defendant Garcia informed the Plaintiff and the publisher, in writing, on April 2, 2013, that the five books had been rejected because the material was sexually explicit or featured nudity, and were being returned to the publisher. (Id. at 8, 18, 19). Plaintiff asserts that the books do not contain sexually explicit material and should not have been returned to the publisher. (Id. at 8, 10). According to Mr. Williams, his request for a $34.25 refund was rejected by the publisher on the basis that the returned books had never been received. Defendant Curran, an FCI-Englewood mail room clerk, submitted a mail recovery center search request to the United States Postal Service, but the books were never found. (Id. at 8, 20).
Mr. Williams alleges in the Complaint that he filed an administrative tort claim with the BOP and was offered $34.25 to settle the claim by Defendant Schott of the Office of Regional Counsel (ECF No. 1, at 22, 35). Plaintiff states that he has not received the settlement monies, even though he completed and submitted the "Judgment Fund Voucher for Payment" more than six months ago. (Id. at 11).
Mr. Williams claims that Defendants Garcia and Denham violated his First Amendment free speech rights and that Defendant Schott violate his Fifth Amendment due process rights because he never received the $34.25 settlement. For relief, Mr. Williams seeks monetary damages against the Defendants in the amount of $300, 000.
A. First Amendment Claim
Plaintiff claims that his First Amendment free speech rights were violated when Defendant Garcia, the former FCI-Englewood Warden, informed him that his incoming publications had been rejected on the basis ...