United States District Court, D. Colorado
HAROLD J. NICHOLSON, Plaintiff,
JOHN O. BRENNAN, Director Central Intelligence Agency CIA, LORETTA LYNCH, U.S. Attorney General, and TWO UNKNOWN CIA EMPLOYEES, Defendants.
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
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] (the “Motion”). Plaintiff, who
proceeds pro se,  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
Procedural Posture and Relevant Facts
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.
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. 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.
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)).
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.
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.
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.
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.
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. See generally Motion
Federal Rule of Civil Procedure 12(b)(1)
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.
Federal Rule of Civil Procedure 12(b)(6)
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).
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, ...