United States District Court, D. Colorado
ZACHARY A. CHESSER, Plaintiff,
DIRECTOR FEDERAL BUREAU OF PRISONS, Defendant.
MEMORANDUM OPINION AND ORDER
Y. WANG MAGISTRATE JUDGE.
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”). [#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.
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]. 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].
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].
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.
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; 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].
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. [#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].
Rule 15(a) Amendment
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).
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