Noe v. True
| Decision Date | 26 July 2021 |
| Docket Number | Civil Action 19-cv-02148-DDD-STV |
| Parties | PETER GEORGE NOE, Plaintiff, v. W. TRUE[1], D. BILBREY, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Second Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”) [#162] which has been referred to this Court [#163]. The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED and the Complaint be DISMISSED.
Plaintiff who proceeds pro se, is a convicted and sentenced prisoner, housed at USP Florence ADMAX (“ADX”). [#156 at 2; #162 at 1-2] In his Fourth Amended Complaint (the “Complaint”), Plaintiff challenges various ADX policies related to incoming and outgoing mail and asserts claims based upon the alleged denial of access to certain recidivism programming under the First Step Act. [See generally #156] Plaintiff makes claims against Defendants True and Bilbrey in their official capacities. [Id. at 2-3]
In Claim One of the Complaint, Plaintiff alleges that two[3] incoming letters addressed to him were rejected and not delivered to him based upon certain prison mail policies that Plaintiff contends violate his First Amendment rights. [Id. at 4-7] In particular, Plaintiff argues that the letters were rejected pursuant to a “name only content” policy, which provides that inmates may not “send or receive any mail that mentions another inmate's name or the name of anyone that was previously incarcerated.” [Id. at 4-5] In Claim Two, Plaintiff alleges ADX's mail policy barring colored envelopes and paper violates his First Amendment rights by preventing him from receiving certain letters. [Id. at 8-10] It also alleges that Defendants violated Plaintiff's due process rights by not providing him with rejection notices when certain letters were rejected under that policy. [Id. at 10] Finally, in Claim Three, Plaintiff alleges that under the First Step Act, 18 U.S.C. § 3632, he is entitled to 510 minutes of monthly phone calls, extended use of prison email, and placement within a certain distance from his residence as incentives for his participation in recidivism reduction programming. [Id. at 11-15] Plaintiff claims that Defendant Matevousian is discriminating against Plaintiff by withholding these incentives in violation of Plaintiff's right to equal protection. [Id. at 11] Plaintiff further claims that his due process rights have been violated because Defendants have not placed him in a recidivism reduction program. [Id. at 13-15]
Plaintiff initiated the instant action on July 26, 2019 [#1] and filed the Fourth Amended Complaint on January 6, 2021 [#156]. In total, Plaintiff raises three claims under the First and Fifth Amendments to the United States Constitution. [Id.] Plaintiff requests declaratory and injunctive relief. [Id. at 17] Defendants filed the instant Motion on January 21, 2021. [#162] Plaintiff filed a Response and Defendants filed a Reply. [##168; 175] The Court granted Plaintiff leave to file a Surreply [#181] and construed Plaintiff's Motion to Appoint Counsel [#177] as an additional response to the instant Motion. [##179; 180] The Court then ordered Defendants to file additional briefing regarding the ADX mail policy. [#180] Additional briefing was filed by both Defendants and Plaintiff. [##193; 194; 195]
Federal Rule of Civil Procedure 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, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003)). When reviewing a facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Finally, “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).
To survive a motion to dismiss, a prisoner must account for the “core holding” of Turner v. Safley and therefore has the burden to “plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.” Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012); see also Turner v. Safley, 482 U.S. 78, 89 (1987) (). This deferential standard reflects the principle that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948), overruled on other grounds by McCleskey v. Zant, 499 U.S. 467 (1991).
“Government conduct that would be unacceptable, even outrageous, in another setting may be acceptable, even necessary, in a prison.” Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010). Consequently, a complaint may not be plausible unless it contains specific factual allegations demonstrating why the government's justifications do not have a rational connection to the challenged restrictions. Id. This generally requires a prisoner to “‘recite[ ] facts that might well be unnecessary in other contexts' to surmount a motion to dismiss.'” Al-Owhali, 687 F.3d at 1240 (quoting Gee, 627 F.3d at 1185) (alteration in original). that the policy does not serve a penological purpose. Al-Owhali, 687 F.3d at 1241 (citing Gee, 627 F.3d at 1188; Mohammed v. Holder, 07-CV-02697-MSK-BNB, 2011 WL 4501959 (D. Colo. Sept. 29, 2011)).
Defendants argue that all claims should be dismissed for lack of subject matter jurisdiction and failure to plead a constitutional violation. [See generally #162] The Court considers each of Plaintiff's claims in turn.
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