United States District Court, D. Colorado
RECOMMENDATION TO DISMISS IN PART AND TO DRAW
P. Gallagher, United States Magistrate Judge
matter comes before the Court on Plaintiff Matthew Hale's
Prisoner Complaint (ECF No. 1). The matter has been referred to
this Magistrate Judge for recommendation (ECF No.
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.
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.
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).
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).
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).
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).
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
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).
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).
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