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Nicholson v. Brennan

United States District Court, D. Colorado

September 28, 2017

JOHN O. BRENNAN, Director Central Intelligence Agency CIA, LORETTA LYNCH, U.S. Attorney General, and TWO UNKNOWN CIA EMPLOYEES, Defendants.



         This matter is before the Court on Defendants' Motion to Dismiss the Second Amended Complaint For Failure to State a Claim and For Lack of Subject-Matter Jurisdiction [#57][1] (the “Motion”). Plaintiff, who proceeds pro se, [2] filed a Response [#60] in opposition to the Motion, and Defendants filed a Reply [#62]. The Court also permitted Plaintiff to supplement his briefing after Defendants filed a Notice of Supplemental Authorities. See [#72, #81]. The Court has reviewed all briefing on the Motion, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#57] is GRANTED.[3]

         I. Background[4]

         A. Procedural Posture and Relevant Facts

         Plaintiff, who proceeds as a pro se litigant, is an inmate at the Florence ADMAX United States Penitentiary in Florence, Colorado (“ADX”). See Second Am. Compl. [#56]. Plaintiff initiated this case by filing a Prisoner Complaint [#1]. On October 28, 2015, Plaintiff was ordered to file an amended complaint. Order [#10]. Plaintiff filed the Amended Complaint [#29] on March 16, 2016. Plaintiff then filed a motion for leave to amend his pleadings, which the Court granted on August 29, 2016. Minute Order [#55]. Plaintiff filed the Second Amended Complaint [#56] on August 29, 2016.

         In 1997, Plaintiff was sentenced to twenty-three years and seven months in prison after pleading guilty to one charge of conspiracy to commit espionage. Second Am. Compl. [#56] at 4. He was thereafter incarcerated at FCI Sheridan, Oregon. In 2011, while still incarcerated, he was sentenced to an additional eight years after pleading guilty to one charge of conspiracy to act as an agent of a foreign government and one charge of conspiracy to commit money laundering. Id. He was thereafter transferred to the Communications Management Unit in Terre Haute, Indiana. Id. After Plaintiff's 2011 conviction, Special Administrative Measures (“SAMs”) were implemented regarding Plaintiff's conditions of confinement. Id. The SAMs restrict Plaintiff's access to mail, media, telephone communications, other inmates, and visitors. SAMs Memorandum [#56] at 30.[5] The justification given for imposition of the SAMs is that they are “reasonably necessary to prevent disclosure of classified information by [Plaintiff]” because disclosure of such information would pose a threat to national security. Id. In January 2012, Plaintiff was transferred to ADX. Second Am. Compl. [#56] at 4. Plaintiff's SAMs have been renewed every year since 2011. Id. at 18.

         B. Parties Sued

         Plaintiff brings this suit against: John O. Brennan, Director of the Central Intelligence Agency (“CIA”); Loretta Lynch, U.S. Attorney General; and two unknown CIA employees. Second Am. Compl. [#56] at 2. Plaintiff states that he is suing them all in their official capacities. Id. As an initial matter, “[w]hen an action is one against named individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, the action is in fact one against the United States.” Accordingly, the United States has effectively been named as the defendant in this case. See Davis v. Holder, No. 12-CV-02122-REB-KMT, 2014 WL 1713429, at *6 (D. Colo. Apr. 23, 2014) (citing Atkinson v. O'Neal, 867 F.2d 589, 590 (10th Cir. 1989) (citations omitted)).[6]

         Plaintiff asserts that the Court has jurisdiction pursuant to 28 U.S.C. § 1331, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Administrative Procedures Act (“APA”). However, Bivens creates a cause of action only against federal officials in their individual capacities for money damages . . . .” James v. Hamaker, No. 15-cv-02425-GPG, 2016 WL 409433, at *1 (D. Colo. Feb. 3, 2016) (citing Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005); Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)). Here, Plaintiff asserts claims against Defendants in their official capacities only, and does not seek money damages. Second Am. Compl. [#56] at 27-29; Response [#60] at 2-3. Therefore, Bivens does not provide the basis for jurisdiction in this matter. Nevertheless, 28 U.S.C. § 1331 provides jurisdiction over claims for equitable relief arising under federal law, and such claims are not barred by the doctrine of sovereign immunity. See Simmat, 413 F.3d at 1232, 1233. The Court also has jurisdiction over Plaintiff's claims to the extent that they arise pursuant to the APA. See 5 U.S.C. § 702.

         C. Claims

         Plaintiff brings three main claims against the Defendants pursuant to the First and Fifth Amendments. See generally Second Am. Compl. [#56]. In Claim One, Plaintiff challenges the SAM prohibiting him from speaking on the phone or visiting in person with his parents. Plaintiff alleges the following in support of Claim One: on November 12, 2014, Plaintiff presented scarves that he had crocheted for his parents to the assigned prisoner officials. He also submitted a letter he had written to his parents in which he mentioned the scarves and suggested to whom they might be given for Christmas. Id. at 8. On November 14, 2014, Plaintiff mentioned the scarves during a phone call with his parents. Id. On November 17, 2014, Defendants John and Jane Doe returned the letter with an instruction to remove Plaintiff's comment about the third scarf. Id. On December 12, 2014, Plaintiff was told that his call privileges had been suspended because Plaintiff had mentioned the third scarf during his November 14 call in violation of the November 17 instruction not to mention it. Id. at 9. Plaintiff thereafter was prohibited from calling his parents. Id. He challenges the imposition of these restrictions because they are based on Defendants' misunderstanding of the timeline of events.

         In Claim Two, Plaintiff challenges the SAM prohibiting him from mail and phone contact with his fiancee, Kanokwan Lehliem (“Lehliem”). He alleges that he had been permitted regular mail and phone contact with Ms. Lehliem from 1996 until the imposition of the SAMs in July 2011. Id. at 12. He also raises concerns about the CIA interfering with letters between Ms. Lehliem and his family. Id. at 14.

         In Claim Three, Plaintiff alleges that the SAMs renewal process violates his Fifth Amendment due process rights. Id. at 18-25. He seeks changes to the renewal process in order to make it more fair. Id. at 25.

         In sum, Plaintiff seeks the ability to have monitored phone and visitation contact with his parents, to exchange letters with his fiancee, and requests changes to the SAMs renewal procedures. Second Am. Compl. [#56] at 27-29. Defendants now move to dismiss Plaintiff's claims in part for failure to state a claim, and in part due to lack of subject matter jurisdiction.[7] See generally Motion [#57].

         II. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) attacks a court's subject matter jurisdiction. The determination of a court's jurisdiction over the subject is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). The objection that a federal court lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may be raised by a party, or by a court on its own initiative, at any stage in the litigation. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). If at any time, the Court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3); Arbaugh, 546 U.S. at 506. A 12(b)(1) motion may take two forms: a facial attack or factual attack on the complaint. When reviewing a facial attack on the complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint pursuant to Rule 12(b)(1), and when the challenge is supported by affidavits and other documents, the Court makes its own factual findings. Id. at 1003.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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 assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” a factual allegation has been stated, “but it has not show[n][ ]that the pleader is entitled to relief, ...

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