United States District Court, D. Colorado
RAYMOND P. MOORE, District Judge.
This matter is before the Court on the Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 131) filed by Defendants the Federal Bureau of Prisons ("BOP") and Blake Davis, Deborah Locke, R. Krist and Diana Krist.
For the reasons stated below, the Court GRANTS Defendants' motion to dismiss.
I. LEGAL STANDARD
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be dismissed if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Id. at 555 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. A "plaintiff must nudge  [his] claims across the line from conceivable to plausible' in order to survive a motion to dismiss.... Thus, 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." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original, internal citation and quotation omitted).
The Tenth Circuit Court of Appeals has held "that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation and citation omitted). The Tenth Circuit has further noted "that the nature and specificity of the allegations required to state a plausible claim will vary based on context." Id. (Internal quotation and citation omitted.) Thus, the Tenth Circuit "concluded the Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will not do.'" Id. (Citation omitted.)
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in a plaintiff's favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996). However, "when legal conclusions are involved in the complaint the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions...." Khalik, 671 F.3d at 1190 (quoting Iqbal, 556 U.S. at 678) (brackets in original). "Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Id at 1191.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff, an inmate at the BOP Administrative Maximum Facility in Florence, Colorado ("ADX"), has filed a second amended complaint (ECF No. 130, the "Complaint") against the Defendants alleging various Constitutional violations and seeks recovery under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Specifically, Plaintiff alleges that, in violation of his First Amendment and due process rights, Defendants had been sending copies of all of Plaintiff's correspondence to Assistant U.S. Attorney Paula J. Duke. Plaintiff further alleges that Defendants violated Plaintiff's equal protection rights under the Fifth Amendment by moving Plaintiff to a different cell in the ADX Special Housing Unit ("SHU"), where he was already confined, and placing sandbags in front of his cell for more than two months for the supposed purpose of restricting Plaintiff's ability to mail letters or have other inmates mail letters on his behalf. Plaintiff alleges that, during this time, "his legal material, stamps, writing materials, showers, and medical assistance was denied or restricted... preventing him from receiving periodic blood sugar tests" to treat his diabetes. (ECF No. 130 at ¶ 14.)
Defendants took the above described actions in an attempt to carry out a court order directing that Plaintiff's communications be strictly limited. On June 19, 2006, U.S. District Court Judge William R. Wilson for the Eastern District of Arkansas entered an order (the "June 2006 Order") restricting Plaintiff's communications to a specified list of individuals and further provided that "all communications, either incoming or outgoing, that is not legal correspondence to counsel of record, should be copied by the [BOP] and sent to the United States Attorney for the Eastern District of Arkansas." (ECF No. 131-1 at 2.) That order was subsequently amended in March, 2008, to allow Plaintiff to communicate with his daughter and brother. On November 3, 2009, Plaintiff mailed a letter to his two sons "that was derogatory in nature against Assistant U.S. Attorney Paula J. Duke and BOP staff." (ECF No. 130 at ¶ 4.) Pursuant to the June 2006 Order, that letter was forwarded to Duke, and eventually made its way to Judge Wilson. Upon determining that the letter contained "true threats" to the individuals described in that letter, Judge Willson entered an additional order sua sponte on March 15, 2010, (the "March 2010 Order") further limiting Plaintiff's ability to correspond with people outside prison, ordering that Plaintiff could only communicate, via mail or phone, with his counsel of record. U.S. v. Allmon, No. 4:04-CR-00169-01-WRW, 2010 WL 936560, at *1 (E.D. Ark. Mar. 15, 2010), order vacated by U.S. v. Allmon, 702 F.3d 1034 (8th Cir. 2012). In December 2012, the Eighth Circuit vacated the additional restrictions imposed by the March 2010 Order, finding that the district court could impose communications restrictions under 18 U.S.C. § 3582(d) only upon a motion by the Government or BOP, not sua sponte as Judge Wilson acted in issuing the March 2010 Order. Allmon, 702 F.3d at 1037.
Plaintiff alleges that on January 25, 2010, in an effort to keep Plaintiff from mailing further letters, "Plaintiff was isolated by placing him in a cell on Range 13 of the SHU [where] his legal material, stamps, writing materials, showers, and medical assistance was denied or restricted, and in addition, Defendants Locke, Davis, Krist and Krist had the Plaintiff's cell door sandbagged, preventing him from receiving periodic blood sugar tests (Plaintiff is a diabetic) and other medical needs...." (ECF No. 130, at ¶ 14.) Plaintiff alleges the sandbags were not removed from the front of his cell until April 13, 2010. (Id. at ¶20.) Plaintiff alleges that from his discussions with other inmates and correctional officers, "no one has been able to cite another instance where a prisoner's cell has been sandbagged to prevent communication with the outside world." (Id. at ¶ 18.)
Plaintiff filed his initial complaint in the present action on March 30, 2011 and an amended complaint on September 22, 2011. That amended complaint was dismissed without prejudice by U.S. District Court Judge Marcia S. Krieger. (ECF No. 126, the "Previous Order.") In Judge Krieger's Previous Order, she determined that Plaintiff's prior complaint asserted three claims for relief under Bivens: First Amendment retaliation, denial of due process and denial of equal protection as guaranteed by the Fifth Amendment. Dismissing all of these claims, the Previous Order granted Plaintiff permission to "file a Second Amended Complaint that alleges only the equal protection claim." (Id. at 15) (emphasis added). Despite the limitations imposed by the Previous Order, ...