United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M Tafoya, United States Magistrate Judge.
matter comes before the court on Defendants'
“Motion to Dismiss Amended Complaint ” (Doc.
No. 79 [Mot.], filed May 11, 2018). Plaintiff filed his
response on June 8, 2018 (Doc. No. 93 [Resp.]), and
Defendants filed their reply on June 28, 2018 (Doc. No. 103
OF THE CASE
is an inmate housed at the United States
Penitentiary-Administrative Maximum (“ADX”) in
Florence, Colorado. (Doc. No. 76 [Am. Compl.], filed April
14, 2018, ¶ 4.) Plaintiff is serving four terms of life
imprisonment plus 50 years for his convictions for the
attempted use of a weapon of mass destruction on a commercial
airliner that landed in Detroit Michigan, and the attempted
murder of the 289 people on board. (Id., ¶1.)
ADX is the highest security prison operated by the Federal
Bureau of Prisons (“BOP”). (Id.) Before
transferring Plaintiff to long-term solitary confinement at
ADX, the United States government placed Plaintiff under
Special Administrative Measures (“SAMs”).
(Id., ¶ 7.)
SAMs allow Plaintiff to communicate through writing, calls,
and personal visits with his immediate family, his list of
authorized contacts (including his step-sisters, uncle, and
stepmother), and his attorneys and related legal providers.
(Mot., Ex. 4, ¶¶ 1.c, 2, 3.) Plaintiff is
allowed to communicate and visit with consular
representatives (id. ¶ 11), as well as to
communicate with the U.S. courts, federal judges, U.S.
Attorney's Offices, members of the U.S. Congress, the
Bureau of Prisons, and federal law enforcement entities
(id., ¶ 3.g). Plaintiff is permitted to
communicate with non-terrorist inmates during predesignated
times. (Id., ¶ 1.c.) Plaintiff is otherwise
prohibited from communicating with other persons, but he may
request additional approved contacts, who are evaluated
“on a case-by-case basis.” (Id. at 9
n.7.) Plaintiff may access mass communications, including
television, newspapers, books, and other publications so long
as they do not facilitate criminal activity, harm national
security, or harm the security, good order, or discipline of
the institution. (Id., ¶ 8-9.) Plaintiff is not
permitted to communicate with the media. (Id.,
¶ 4.) The Department of Justice found that such
restrictions are reasonably necessary to prevent Plaintiff
from committing, soliciting, or conspiring to engage in
additional criminal activity, to prevent him from receiving
and acting upon critically timed messages, and to prevent him
from advocating or inciting terrorist, criminal, and/or
violent offenses. (Id. at 16-17.)
brings this civil action with 14 claims challenging his
conditions of confinement. In Claim 1, Plaintiff alleges that
his transfer to the ADX in 2012 violated due process.
(Compl., ¶¶ 284-88.) In Claims 2 through 5,
Plaintiff alleges his SAMs violate the First and Fifth
Amendments. (Id., ¶¶ 289-316.) In Claims
6, 7, 11, 12, and 13, Plaintiff alleges the BOP's actions
related to his hunger strikes in 2012 and 2015 violated the
First, Fifth, and Eighth Amendments, as well as the Religious
Freedom Restoration Act (“RFRA”). (Id.,
¶¶ 317-33, 359-83.) In Claims 8, 9, and 10,
Plaintiff alleges that the BOP violated RFRA by denying group
prayer with other inmates, regular access to an imam, and a
halal diet. (Id., ¶¶ 334-58.) In Claim 14,
Plaintiff alleges that the overall conditions of his
confinement constitute cruel and unusual punishment.
(Id., ¶¶ 384-95.) Plaintiff seeks purely
prospective declaratory and injunctive relief for the alleged
violations. (Id. at 82-83.)
move to dismiss Claims 1 through 7 and 11 through 14 of
Plaintiff's Amended Complaint. (Mot.)
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” See Basso, 495 F.2d
at 909. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
Failure to State a Claim upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “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.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusion, bare assertions, or
merely conclusory. Id. at 679-81. Second, the Court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. S. Disposal, Inc., v. Texas
Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.'”
Id. (citation omitted).
evaluating a Rule 12(b)(6) motion to dismiss, the court may
consider documents incorporated by reference, documents
referred to in the complaint that are central to the claims,
and matters of which a court may take judicial notice.
Tellabs, Inc, 551 U.S. at 322; Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly
filed court records, including court transcripts, are subject
to judicial notice. St. Louis Baptist Temple, Inc. v.
Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979); United States v. Ahidley, 486 F.3d 1184, 1192
n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx.
691, 693 (10th Cir. 2003).
Claims 2, 3, 4, and 5 Regarding SAMs
Claims 2 through 5, Plaintiffs alleges that his SAMs violate
his First and Fifth Amendment rights by restricting his
communications and association with other persons. (Compl.,
Claims 2, 3, and ...