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Chesser v. Director Federal Bureau of Prisons

United States District Court, D. Colorado

June 1, 2017




         This action is before the court on Plaintiff Zachary A. Chesser's (“Plaintiff” or “Mr. Chesser”) Motion For Leave To Supplement And File Motion For Temporary Restraining Order and Preliminary Injunction (the “Motion”).[1] [#80, filed Feb. 6, 2017]. The undersigned considers the Motion 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 is DENIED.


         The court has discussed the background of this case in several prior orders, see, e.g., [#53; #86], and will only discuss it here as it relates to the pending motion. Plaintiff is Muslim and currently incarcerated at the United States Penitentiary Administrative Maximum Facility located in Florence, Colorado (“ADX”). 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].[2] Plaintiff originally alleged 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 [#1-1; #58], and sought to challenge broadly both his assignment to the ADX and his treatment within the ADX as violations of his religious freedoms. On September 8, 2015, the United States District Court for the District of Columbia (“D.C. District Court”) transferred Plaintiff's pro se complaint to this court, based on Defendant's motion pursuant to 28 U.S.C. § 1404. [#1].

         Following the filing of an Amended Complaint and a Second Amended Complaint (“SAC”), the Honorable Lewis T. Babcock issued an Order dismissing the SAC's Claims I and II, i.e., that restrictions on religious gatherings set out in BOP Program Statement 5360.09 (“BOP Program Statement 5360.09” or “Program Statement”) violates both the RFRA and the Establishment Clause, as duplicative of Mr. Chesser's claims in Chesser I pending before the United States District Court for the Southern District of Illinois. [#24]. Judge Babcock, however, ordered that Plaintiff's remaining claims (Claims III and IV) be drawn to a presiding judge, and those claims were drawn to the undersigned Magistrate Judge on December 22, 2015. [Id.; #25]. On March 25, 2016, the court issued an Order denying Plaintiff's Motion to Reconsider Dismissal of Counts I and II [#32], wherein Plaintiff argued that Claims I and II were distinct from those claims in Chesser I. [#53]. The court concluded that, despite Mr. Chesser's characterization to the contrary, such claims notably overlapped with his claims in Chesser I, “if not outright duplicat[ed] . . . the claims in the two cases.” [Id. at 9]. However, by that same Order, the court granted Plaintiff leave to file his Third Amended Complaint (“TAC”) to clarify the issues in Claims III and IV, which became the operative complaint in this matter on June 9, 2016, nearly one-year after the case's transfer to this district. [#58].

         On August 3, 2016, Defendant Director of Federal Bureau of Prisons (“Defendant” or “BOP”) filed its second motion to dismiss, aimed at Plaintiff's TAC. [#67]. The court granted Defendant's motion, in part, and denied the motion, in part. See [#86]. Accordingly, the remaining claims in this matter are: (1) Claim III to the extent it challenges the BOP's consideration of Mr. Chesser's ties to terrorism as the primary reason for transferring him to ADX without regard to other applicable factors, and (2) Claim IV that the conditions at ADX substantially burden the exercise of Mr. Chesser's sincerely held religious beliefs in violation of the RFRA. [Id.]. Neither of these claims encompass a facial challenge to BOP Program Statement 5360.09.

         Prior to the court's ruling on the Motion to Dismiss, however, Plaintiff filed the instant Motion on February 6, 2017. [#80]. The Motion is two-fold. First, though titled a supplement, Plaintiff seeks leave to amend his complaint a fourth time, reasserting the twice dismissed Claims I and II. [Id. at 1-2]. Plaintiff argues that he seeks to reassert these claims because the Southern District of Illinois dismissed these claims without prejudice;[3] thus, they are no longer duplicative of Chesser I. [Id.]. Second, Plaintiff seeks injunctive relief under proposed Claims I and II in the form of a temporary restraining order (“TRO”) allowing Mr. Chesser to engage in group prayer at the ADX, and a preliminary injunction enjoining the BOP's imposition of Program Statement 5360.09 at all BOP facilities. [Id. at 2, 29]. From the papers, it is clear that the request for a TRO is predicated on the claims to be asserted. Defendant opposes both the TRO and any amendment, and Plaintiff filed a reply. See [#85; #92]. Then, on March 23, 2017, the court held a Status Conference at which it set the following relevant deadlines: (1) March 23, 2017 for amendment of pleadings and joinder of parties; (2) September 25, 2017 for discovery; and (3) October 27, 2017 for dispositive motions. [#100].


         Mr. Chesser now seeks to re-assert a facial challenge through this instant Motion to the BOP Program Statement 5360.09's restrictions on religious gatherings as violating (1) the RFRA and (2) the Establishment Clause of the First Amendment of the United States Constitution, because religious groups are treated differently than secular groups. [#80 at 13-28]. Mr. Chesser identifies the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. as an additional basis for jurisdiction for these claims.[4] [#80 at 14]. As relief, Mr. Chesser seeks injunctive relief not only as to himself personally, but also seeks to enjoin the BOP from enforcing Program Statement 5360.09 [#85-2] with respect to all BOP facilities. [#80 at 13-28]. He also seeks attorney's fees and costs. [Id. at 27]. He specifically disclaims any request for monetary damages. [Id. at 2 n.1].

         I. Rule 15(a) Amendment

         Because Mr. Chesser filed the Motion prior to the deadline for amendment of pleadings, Rule 15(a) would ordinarily govern the court's analysis. See Fernandez v. Bridgestone/Firestone, Inc., 105 F.Supp.2d 1194, 1195 (D. Colo. 2000) (recognizing that if a party files a motion to amend prior to the expiration of the deadline for joinder of parties and amendment of pleadings there is no requirement to also establish good cause to amend the scheduling order under Rule 16(b)). Rule 15(a)(2) provides that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a)(2). The court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993); accord Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001) (observing that a court may dismiss a motion to amend if amendment is futile, i.e., the amended complaint would be subject to dismissal for any reason).

         II. PLRA Requirements

         This standard, however, must also be read within context of the Prison Litigation Reform Act (“PLRA”) and the restrictions imposed by 28 U.S.C. § 1915. See Green v. Denning, No. 06-cv-3298-SAC, 2009 WL 484457, at *2 (D. Kan. Feb. 26, 2009). While Rule 18(a) of the Federal Rules of Civil Procedure governs joinder of claims, see Fed. R. Civ. P. 18(a); cf. Green, 2009 WL 484457 at * 2 (observing that the controlling principle of the Rule is that unrelated claims against different defendants belong in different suits), the PLRA places several restrictions on pro se prisoner litigants, including the requirement of a full payment of filing fees through partial payments over time and a “three-strike” provision that prevents a prisoner from proceeding in forma pauperis if three or more cases have been dismissed as frivolous, malicious, or as stating no claim for relief. Smith v. Howell, No. 14-cv-1374, 2015 WL 4878354, at *10 (W.D. Okla. June 23, 2015). The PLRA also requires the court to conduct a ...

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