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Chesser v. Director Federal Bureau of Prisons

United States District Court, D. Colorado

February 22, 2017



          Nina Y. Wang United States Magistrate Judge.

         Magistrate Judge Nina Y. Wang This action is before the court on Defendant Director of Federal Bureau of Prisons' (“Defendant” or “BOP”) Motion to Dismiss Third Amended Complaint (the “Motion to Dismiss”). [#67, filed Aug. 3, 2016]. This Magistrate Judge considers the Motion to Dismiss pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated January 7, 2016. [#37]. The court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, following a careful review of the motion, the associated briefing, the entire case file, and the applicable case law, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.


         The court has discussed the background of this case in several prior orders, see, e.g., [#20; #24; #53], and will only discuss it here as it relates to the pending motion. Plaintiff is an ADMAX prisoner currently incarcerated at the United States Penitentiary (“USP”) located in Florence, Colorado (“ADX”), who was convicted of communicating threats, soliciting others to threaten violence, and providing material support to terrorists and terrorist organizations. See [#1-1; #58 at ¶ 5; Chesser v. Walton, 3:12-cv-01198-JPG-PMF (S.D. Ill.) (“Chesser I”), ECF No. 236 at 3].[1] Plaintiff initiated this civil action on December 22, 2014, in the United States District Court for the District of Columbia (“D.C. District Court”). [#1-1]. Plaintiff, a Muslim, alleges that the BOP has substantially burdened his exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1 et seq. See generally [id.; #58]. On September 8, 2015, the D.C. District Court transferred Plaintiff's case to this court, based on Defendant's motion pursuant to 28 U.S.C. § 1404. [#1].

         Plaintiff filed an Amended Complaint on October 7, 2015. [#8]. Per Magistrate Judge Gallaher's instruction [#20], Plaintiff filed a Second Amended Complaint on November 20, 2015. [#22]. Plaintiff's Second Amended Complaint alleged that: (1) BOP Program Statement 5360.09's ban on religious gatherings amounts to a violation of the RFRA; (2) BOP Program Statement 5360.09's ban on religious gatherings amounts to a violation of the Establishment Clause of the United States Constitution; (3) Defendant's policy of housing Muslims with terrorism ties in long-term solitary confinement violates RFRA; and (4) Plaintiff's specific confinement substantially burdens the exercise of his religious beliefs. [Id.]. The Honorable Lewis T. Babcock dismissed Mr. Chesser's first and second claims as duplicative of claims in a separate pending federal lawsuit in the United States District Court for the Southern District of Illinois (“Southern District of Illinois”), Chesser I, but directed that claims three and four be drawn to a presiding judge. [#24 at 4]. The action was then drawn to the undersigned Magistrate Judge. [#25].

         On March 25, 2016, the court issued an Order denying Plaintiff's Motion to Reconsider Dismissal of Counts 1 and 2 [#32], Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint [Doc. 22] Under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) [#42], and Defendant's Motion to Stay Discovery [#44] (but staying the entry of a Scheduling Order and discovery pending the filing of an answer); and granting in part Plaintiff's Motion for Leave to Amend [#46]. See [#53]. Pursuant to that Order, Plaintiff filed his Third Amended Complaint on June 9, 2016, which is the operative complaint in this matter. [#58]. Mr. Chesser's Third Amended Complaint levies two claims against Defendant for violations of the RFRA, because the BOP has a national policy of “holding inmates in solitary confinement due to their ties to terrorism” (the “Policy”) (Claim III) and because Plaintiff's confinement in ADX substantially burdens the exercise of his sincerely held religious beliefs (Claim IV). See [id.].


         Plaintiff alleges that Islam “obligates and encourages a number of religious gatherings and interactions [e.g., group prayer, religious classes, religious conversations, religious celebrations, and other various religious gatherings]. . . . [that] [] should be done with other Muslims. . . . [and] should be done as much as possible.” [Id. at ¶ 1]. According to Plaintiff, the BOP has a “policy and/or practice” whereby an inmate's “ties to terrorism” are a “but-for reason” for the inmate's placement in long-term solitary confinement.[3] [Id. at ¶ 2]. Plaintiff continues that the BOP implements the Policy at the ADX, the administrative facility in Thompson, Illinois, [4] in the Special Housing Units (“SHUs”), and the Special Management Units (“SMUs”). [Id. at ¶ 3]. For example, factors relevant to placement in the ADX-BOP's most restrictive facility-include whether:

The inmate is subject to restrictive conditions of confinement as a result of a Special Administrative Measure, pursuant to 28 C.F.R. §§ 501.2 or 501.3; or based on documented reliable information from a government agency that the inmate was convicted of, charged with, associated with, or in any way linked to terrorist activities and, as a result, presents national security management concerns which cannot adequately be met in an open population institution.

[Id. at ¶ 4; #67-10 at 3].

         Prior to his placement at the ADX, Plaintiff served approximately three years at the Communications Management Unit (“CMU”) at USP-Marion. [#58 at ¶ 8]. Plaintiff avers that the BOP accused him of being a terrorist recruiter while at USP-Marion; of being a member of Jama'ah Ad-Da'wah As-Sahihah (“JDS”), a “terrorism-related security threat group;” and of being an organizer of group prayer-which the BOP allegedly considers a “method of terrorism recruitment.” [Id. at ¶¶ 6, 9]. Because of these accusations, the BOP issued Mr. Chesser several incident reports-four for organizing group prayer and three related to his involvement with JDS (e.g., one for assault of another inmate, one for extortion of prison officials, and one for possession of “code instructions”). [Id.]. Similarly, the BOP “rejected dozens of [Plaintiff's] communications because they felt they promoted terrorism.” [Id. at ¶ 7].

         In approximately June 2014, the BOP transferred Plaintiff to the ADX for his alleged involvement with JDS and other activities deemed related to terrorism.[5] [Id. at ¶ 9]. Plaintiff also alleges that he spent several months in the SHU “over his ties to terrorism.” [Id. at ¶ 10]. However, while Plaintiff is not housed in the SMU or placed on Special Administrative Measures (“SAMs”), he meets the criteria for both, and the BOP allegedly uses an inmate's ties to terrorism as a “cause to put them in SAMs.” [Id. at ¶ 11]. Nonetheless, Plaintiff asserts that his placement at the ADX is equivalent to long-term solitary confinement and that the conditions at the ADX make it impossible for Plaintiff to engage in religious activities. [Id. at ¶ 12-14]. Plaintiff continues that, even if he leaves ADX, there is always the risk of returning due to the BOP's Policy. [Id. at ¶ 13].[6]

         Plaintiff alleges that the BOP refers “non-terrorist inmates” to the ADX only when the inmate's conduct is so egregious, i.e., murdering another inmate. [Id. at ¶ 19]. In addition, that only a few Muslim inmates convicted of being terrorists have ever engaged in violence against BOP officials, compared to the large number of instances of violence perpetrated by “non-terrorist inmates.” [Id. at ¶¶ 21-27]. According to Plaintiff, the ADX used to be an open population facility until “a few non-terrorist inmates engaged in brutal prison violence.” [Id. at ¶ 32].[7]

         Plaintiff maintains that the BOP's primary concern relating to terrorist-inmates is their communication and influence within as well as outside the prison. [Id. at ¶ 28]. However, placement of terrorist-inmates at the ADX does not address these concerns because, according to Mr. Chesser, he has a greater ability to communicate and influence others while incarcerated at the ADX versus the CMUs. [Id. at ¶¶ 29-31]. Thus, Mr. Chesser alleges, the BOP's Policy does not further a compelling interest. [Id. at ¶ 33]. Moreover, Plaintiff contends that there are several less-restrictive alternatives that the BOP could employ that would not substantially burden Muslim inmates' sincerely held religious beliefs, especially when compared to other countries' treatment of Muslim inmates. See [id. at ¶¶ 35-40]. In addition, the conditions of the ADX substantially burden his sincerely held religious beliefs. [Id. at ¶¶ 41-44]. Therefore, the BOP's Policy, in addition to the conditions at ADX, violate the RFRA. [Id. at ¶ 40; id. at 23].

         On August 3, 2016, Defendant filed its Motion to Dismiss. [#67]. Defendant argues that the court should dismiss Plaintiff's Claim III because there is no BOP policy to house inmates with ties to terrorism in long-term solitary confinement nor has the BOP applied any such policy to Mr. Chesser, and, in addition, Plaintiff fails to allege a plausible RFRA claim under Claims III and IV. See [id. at 9-10, 14]. Plaintiff filed a response and Defendant a reply. [#70; #73]. Because the Motion to Dismiss is ripe for resolution, the court considers the Parties' arguments below.


         I. Pro se Litigants

         Because Plaintiff proceeds pro se, this court liberally construes his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court cannot act as an advocate, even for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover, the court applies the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir.2008); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).

         II. Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). Under Rule 12(b)(1), a court may dismiss a complaint for lack of subject-matter jurisdiction. Doing so is not a determination on the merits of the case; rather, it is a decision that the court lacks the authority to adjudicate the action. 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 that lacks 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). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Id. Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001); Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). “In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Holt, 46 F.3d at 1002. Mere conclusory allegations of jurisdiction are insufficient. Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). On the other hand, a court reviewing a factual attack may not “presume the truthfulness of the complaint's factual allegations, ” and may consider affidavits and other documents to resolve disputed jurisdictional facts. Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015) (quoting Holt, 46 F.3d at 1002-03). Nevertheless, “a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.” Groundhog, 442 F.2d at 677; see also Holt, 46 F.3d at 1002 (observing, “the jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.”).

         III. Rule 12(b)(6)

         Under Rule 12(b)(6) a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” 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 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Robbins v. ...

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