United States District Court, D. Colorado
ORDER ON PENDING MOTIONS
Michael E. Hegarty United States Magistrate Judge.
Bivens action, Defendant has filed two motions in
response to the operative pleading: a motion seeking summary
judgment for Plaintiff's purported failure to exhaust
administrative remedies, and a motion to dismiss the action
for Plaintiff's failure to demonstrate personal
jurisdiction and to allege a plausible claim for destruction
of Plaintiff's mail. The Court finds that Plaintiff's
failure to exhaust his administrative remedies before
bringing this action is fatal to his claims and, thus, the
Court grants Defendant's motion for summary judgment and
denies her motion to dismiss as moot.
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
Plaintiff Noshir Gowadia is incarcerated at the United States
Penitentiary - Administrative Maximum (“ADX”) in
Florence, Colorado, a facility within the United States
Bureau of Prisons (“BOP”). Declaration of Belinda
Shelton, Sept. 11, 2017 (“Shelton Decl.”) ¶
2 & Attach. 1.
remaining claim in this action alleges that Defendant
Florence Nakakuni, the former U.S. Attorney for the District
of Hawaii, has, without reason, delayed or destroyed
Plaintiff's mail to his family and the court in violation
of the First and Fifth Amendments. Order, ECF No. 23 at 7.
support of the operative Amended Complaint, Plaintiff
attached a list of “some examples of important U.S.
mail of the Plaintiff which were
intercepted/delayed/destroyed by the defendants.” Am.
Comp., Attach. B, ECF No. 22. The list includes documents the
Plaintiff “put in ADX mail” in 2016. Id.
the operative Amended Complaint, which the Plaintiff signed
“under penalty of perjury, ” he checked the box
for “yes” in response to the question, “Did
you exhaust available administrative remedies?” Am.
Comp., ECF No. 22 at 13, 15.
Plaintiff has not filed an administrative remedy request with
the BOP since 2012. Shelton Decl. ¶¶ 12-14 &
Plaintiff has not filed any administrative remedy request at
any level regarding his allegations that Defendant Nakakuni
has destroyed or delayed any of his mail. Id.,
¶ 15 & Attach. 2.
Consideration of a Pro Se Plaintiff's
federal court must construe a pro se plaintiff's
“pleadings liberally, applying a less stringent
standard than is applicable to pleadings filed by lawyers.
[The] court, however, will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on plaintiff's behalf.”
Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir.
1997) (quotations and citations omitted). The Tenth Circuit
interpreted this rule to mean, “if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). However, this interpretation is
qualified in that it is not “the proper function of the
district court to assume the role of advocate for the pro se
litigant.” Id.; see also Peterson v.
Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.