Hale v. Marques

          RECOMMENDATION TO DISMISS IN PART AND TO DRAW CASE

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on Plaintiff Matthew Hale's Prisoner Complaint (ECF No. 1)^[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 7)^[2]. Under 28 U.S.C. § 1915A and D.C.COLO.LCivR 8.1(b), the Court must review the Prisoner Complaint to determine whether any claims are appropriate for summary dismissal.

         The Court must construe Plaintiff's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520- 21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         The Court has reviewed the filings to date. The Court has considered the case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Prisoner Complaint (ECF No. 1) be dismissed in part and the remaining claims be drawn to Senior Judge Marcia S. Krieger. See D.C.COLO.LCivR 8.1(c), 40.1(d)(1); Hale v. Federal Bureau of Prisons, et al., Case No. 14-cv-00245-MSK-MJW (final judgment entered March 29, 2018).

         I. Factual and Procedural Background

          Plaintiff is in the custody of the federal Bureau of Prisons at the U.S. Penitentiary AdMax in Florence, Colorado. On March 13, 2019, he filed pro se the Prisoner Complaint, which is the operative pleading. (ECF No. 1). He paid the filing fee. (ECF No. 5).

         Plaintiff brings the Prisoner Complaint pursuant to Bivens and the Religious Freedom Restoration Act (“RFRA”). (ECF No. 1 at 4). Plaintiff alleges he is an “ordained minister in the non-Christian Church of the Creator”, also referred to as “Creativity religious faith.” (Id. at 7). Since his incarceration at the maximum-security prison in Florence, Colorado, he contends Defendants have violated his rights because of his religious beliefs. (See generally ECF No. 1).

         Plaintiff sets forth twenty-two claims: 1) violation of the First Amendment Establishment Clause due to “ongoing harassment” because Plaintiff “does not adhere to the tenets of the Christian religion”; 2) violation of the freedom of speech due to “censorship” of his book; 3) violation of the First Amendment Free Exercise Clause due to a “total ban on all of Hale's religious mail”; 4) violation of RFRA due to the ban on Plaintiff's “religious correspondence”; 5) violation of the freedom of speech due to the ban on Plaintiff's “Creativity” correspondence; 6) violation of the First Amendment Free Exercise Clause due to the refusal to mail a “sermon” prepared by Plaintiff and subsequent incident report; 7) violation of RFRA due to the refusal to mail a “sermon” prepared by Plaintiff and subsequent incident report; 8) violation of the freedom of speech due to the refusal to mail a “sermon” prepared by Plaintiff and subsequent incident report; 9) retaliation in violation of the First Amendment due to the incident report and discipline resulting from Plaintiff attempting to send his “sermon”; 10) violation of the freedom of speech due to the “censorship of an article written by Hale advocating for his release from prison by President Trump”; 11) retaliation in violation of the First Amendment by banning Plaintiff's phone calls with his mother due to his attempt “to seek the newspaper publication of documents filed with this Court”; 12) violation of due process arising from no hearing prior to the ban of Plaintiff's phone calls with his mother; 13) violation of the freedom of speech due to the refusal to mail an article Plaintiff wrote about “those who care about the future of their White Race” to his mother; 14) retaliation in violation of the First Amendment due to the charge of gang activity and subsequent discipline related to the article; 15) violation of the freedom of speech due to interference with his outgoing and incoming mail; 16) violation of the First Amendment Free Exercise Clause due to the “refusal to let Hale have a book which espouses his religious faith, ” the “Racial Loyalty Portfolio”; 17) violation of RFRA due to refusing to allow Plaintiff to receive the “Racial Loyalty Portfolio”; 18) violation of the freedom of speech due to refusing to allow Plaintiff to receive the “Racial Loyalty Portfolio”; 19) violation of the freedom of speech based on withholding mail that mentions the title of books authored by Plaintiff; 20) retaliation in violation of the First Amendment arising from an incident report based on Plaintiff asking his mother to sell his personal belongings for money to pay legal costs; 21) violation of the freedom of speech due to the delayed mailing of Plaintiff's letters; and 22) state law defamation arising from the characterization of Creativity advocating for “violence motivated by racial discrimination.” (See ECF No. 1). Plaintiff requests injunctive relief and money damages. (Id. at 29-30).

         II. Issue Preclusion

         Under the doctrine of collateral estoppel, also referred to as issue preclusion, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). “[I]ssue preclusion bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.” Park Lake Res. Ltd. Liab. v. U.S. Dep't of Agr., 378 F.3d 1132, 1136 (10th Cir. 2004). (citation omitted).

In general, issue preclusion applies when: (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

Id. (citation and quotation omitted). “[I]f a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised.” Arizona v. California, 530 U.S. 392, 412, suppl., 531 U.S. 1 (2000) (citation omitted).

         In 2014, Plaintiff commenced a similar action, Case No. 14-cv-00245-MSK-MJW. On March 28, 2018, summary judgment was granted in favor of the federal Bureau of Prisons and against Plaintiff. Hale v. Fed. Bureau of Prisons, No. 14-cv-00245-MSK-MJW, 2018 WL 1535508, at *1 (D. Colo. Mar. 28, 2018), aff'd, No. 18-1141, 2019 WL 117616 (10th Cir. Jan. 7, 2019). The Tenth Circuit affirmed summary judgment on January 7, 2019. Hale v. Fed. Bureau of Prisons, No. 18-1141, -- Fed.Appx. --, 2019 WL 117616, at *1 (10th Cir. Jan. 7, 2019).

         In an Order and Judgment, the Tenth Circuit concluded that Plaintiff's alleged religion of Creativity does not qualify as a religion subject to protection under RFRA. 2019 WL 117616, at *5. The Tenth Circuit also determined that Creativity does not constitute “beliefs that are religious in nature” as required for the protections of ...