United States District Court, D. Colorado
ZACHARY A. CHESSER, Plaintiff,
DIRECTOR FEDERAL BUREAU OF PRISONS, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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
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
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].
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
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.].
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. [Id. at ¶ 2].
Plaintiff continues that the BOP implements the Policy at the
ADX, the administrative facility in Thompson, Illinois,
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].
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].
approximately June 2014, the BOP transferred Plaintiff to the
ADX for his alleged involvement with JDS and other activities
deemed related to terrorism. [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].
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].
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].
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'
Pro se Litigants
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).
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.
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.”).
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. ...