Opinion
Civil Action 19-cv-02148-DDD-STV
07-26-2021
PETER GEORGE NOE, Plaintiff, v. W. TRUE[1], D. BILBREY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak, 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.
The facts are drawn from the allegations in Plaintiff's Fourth Amended Complaint [#156], which must be taken as true when considering the Motion. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
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 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]
The Complaint alleges that three letters were rejected; however, in his Response, Plaintiff indicates that he is abandoning the claim as to the third letter, which was sent to Hector Gonzalez. [#168 at 2] Accordingly, the Court RECOMMENDS that the portion of Claim One related to the Gonzalez letter be DISMISSED.
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]
II. LEGAL STANDARD
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) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). 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)).
The parties submitted a number of exhibits with the briefing. “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). However, the Court may consider evidence outside of the pleadings concerning any jurisdictional issues without converting the motion into a Rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (“[U]nless the jurisdictional issue is intertwined with the merits of Plaintiff's case, the district court [may] properly consider[ ] evidence outside of the pleadings and resolve[ ] factual disputes without converting the motion into a Rule 56 motion.”); Castro v. Kondaur Cap. Corp., 541 Fed.Appx. 833, 836 (10th Cir. 2013) (“The Court's reliance on evidence outside the pleadings to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56.” (quotations omitted)).
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) (“[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). 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). “In order to survive the government's 12(b)(6) motion, [Plaintiff is] not required to substantively rebut the government's justifications [for the policy] . . . . Rather, he simply need[s] to plead some plausible facts supporting his claim” 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.
A. Claim One
Claim One alleges that Defendants violated Plaintiff's First Amendment rights by rejecting two letters which referred to other incarcerated persons. [#156 at 4-7] The Complaint alleges that these letters were improperly denied under a “name only” policy, which Plaintiff alleges requires any letter referring to another incarcerated person to be rejected. [Id.] Defendants assert that the letters were rejected pursuant to a prison policy prohibiting communication to other inmates through third parties, which serves a valid penological interest. [#162 at 5-8]
Under Turner the Complaint must allege facts that plausibly suggest that the mail policy at issue was not reasonably related to a legitimate penological interest. “[E]very prison places legitimate restrictions on prisoner mail so a prisoner's First Amendment claim of interference with mail is ordinarily not plausible without factual allegations showing at least that the alleged interference violated prison rules or that the applicable rule was invalid, either generally or in the specific context of the claim.” Salim v. Session, No. 13-cv-03175-RM-CBS, 2017 WL 11487131, at *3 (D. Colo. May 2, 2017) (citing Gee, 627 F.3d at 1185); see also Davis v. Federal Bureau of Prisons, No. 15-cv-0884-WJM-MJW, 2016 WL 11384334, at *4 (D. Colo. Feb. 4, 2016), report and recommendation adopted, 2016 WL 1156755 (D. Colo. Mar. 24, 2016) (dismissing First Amendment claims for rejection of mail where Plaintiff failed to provide factual allegations suggesting that the mail restrictions “did not serve their purported penological interest”). As the Supreme Court has made clear, “communication with other felons is a potential spur to criminal behavior” and can be prohibited “even after an inmate has been released on parole.” Turner, 482 U.S. at 91-92; see also Overton, 539 U.S. at 131 (“[A]s our cases have established, freedom of association is among the rights least compatible with incarceration.”).
Here, the Complaint admits that Plaintiff was told that his letters were rejected under the policy prohibiting inmate-to-inmate correspondence. [#156 at 5; see also #195 at 1 (“[W]hen they rejected the letters as to claim one they put on the rejection form ‘inmate to inmate correspondence.'”)] It additionally admits that the denial of letters providing information about incarcerated persons serves a penological interest if such information is detrimental to the safety of the facility. [#156 at 5, 6] The Complaint provides no facts to suggest that such a determination was not made as to Plaintiff's letters and, by contrast, pleads facts describing how Plaintiff could, in fact, engage in the prohibited communication by simply complying with other portions of the prison's mail regulations. [#156 at 7] Moreover, where the Complaint alleges that the mail policy serves no penological purpose, it does so in summary fashion and without providing supporting factual allegations. [#156 at 7] Finally, to the degree that the Complaint asserts that the rejection of Plaintiff's two letters was done solely because those letters referenced incarcerated persons-and in violation of written prison mail policies-an isolated failure to adhere to administrative regulations, on its own, does not necessarily result in a constitutional violation. See Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993). The Complaint does not provide other facts sufficient to plausibly allege that these instances form a pattern or amount to a constitutional violation.
In the Response, Plaintiff additionally asserts that the alleged “name only” policy is unconstitutional under Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 88284 (10th Cir. 2019). Prison Legal News, however, is inapplicable. Initially, Prison Legal News involved a mootness inquiry not relevant to Plaintiff's first claim. Id. Moreover, Prison Legal News involved publications and Plaintiff does not allege any of his publications were rejected for naming another inmate.
Accordingly, Plaintiff has failed to plausibly allege a First Amendment violation and the Court RECOMMENDS Claim One be DISMISSED.
Defendants additionally argue that to the degree that the Complaint seeks to challenge potential future rejections of Plaintiff's mail, such claims lack ripeness. [#162 at 8-9] The Court perceives the Complaint to be challenging the mail rejection policy itself. Moreover, this Court obtained briefing on additional letters sent to Plaintiff that had been rejected since this litigation began. Those letters were rejected under a policy different than the one challenged in Claim One. [See generally #194] The Complaint has not challenged that policy and the Court will not address it here. Should Plaintiff seek to challenge the constitutionality of that policy, he must file a new action containing allegations to that end. In any event, Claim One has not met the requirements of Turner and it fails on that ground.
B. Claim Two
Claim Two alleges a First Amendment Free Speech violation and a Fifth Amendment Due Process violation. The Court addresses each claim in turn.
i. Free Speech
Claim Two argues that another ADX mail policy-which prohibits letters sent on colored paper and in colored envelopes-violates Plaintiff's First Amendment Rights because not all letters rejected under that policy are photocopied and provided to Plaintiff. [#156 at 8-10] Defendants assert that this mail policy was instituted to prevent drugs from entering the prison through hard-to-assess packages. [#162 at 10-11]
There are “legitimate penological interests in preventing the use and possession of illegal drugs, in maintaining prison order and safety, in crime deterrence, and in inmate rehabilitation.” Hammons v. Saffle, 348 F.3d 1250, 1254-55 (10th Cir. 2003). And prison officials may impose rules to keep illegal drugs from prisoners. Id. (finding policy prohibiting possession of prayer oils rationally related to legitimate penological interests, where oils can be used “to mask the odor of drugs”); Bell v. Wolfish, 441 U.S. 520, 540 (1979) (recognizing that jails have an interest in taking “steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees”); Overton, 539 U.S. at 129 (“Drug and alcohol abuse by prisoners is unlawful and a direct threat to legitimate objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons.”).
Although the Complaint alleges that the mail policy does not serve a penological purpose, it provides no factual allegations to support that assertion. Al-Owhali, 687 F.3d at 1241 (finding that the Complaint must plead “some plausible facts” supporting a claim that a policy does not serve a penological purpose). Instead, it alleges that photocopying the rejected mail would better serve Plaintiff's interests while still accomplishing the goal of the policy. [#156 at 8-9 (suggesting that all mail that violates the policy be photocopied and provided to Plaintiff)] But “prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint.” Turner, 482 U.S. at 90-91. Moreover, Defendants assert that ADX does not photocopy violating mail in order to protect staff from potentially dangerous substances that may be undetectable upon initial review. [#162 at 11] Plaintiff does not allege facts to suggest that such reasoning serves no penological purpose.
The Complaint, therefore, does not meet the Turner requirements as to the First Amendment Claim in Claim Two and the Court RECOMMENDS it be DISMISSED.
ii. Due Process
The Court next turns to the Due Process claim in Claim Two. In it, Plaintiff alleges that he did not receive rejection forms for mail sent to him that was rejected under the mail policy. [#156 at 10] However, Plaintiff has since been provided such notice, both through this lawsuit and, apparently, through the individuals who sent him the rejected letters. [Id.; #162-7 at 15-18] See Knight v. Lombardi, 952 F.2d 177, 179 (8th Cir. 1991) (“[A]lthough the failure to promptly notify [the plaintiff] of the seizures was arguably a procedural due process violation, there is no allegation or evidence of injury flowing from that alleged violation . . . .”). In particular, Defendants have included with their briefing-which was provided to Plaintiff-all records they have of mail sent to Plaintiff that was then rejected under the policy. [#162-7 at 6-7; 15-18] Thus, because Plaintiff seeks only injunctive and declaratory relief, [#156 at 6], he does not have standing to proceed with this claim.
The Complaint states that Plaintiff has affidavits from four people regarding rejected mail in cases where Plaintiff did not receive rejection forms for those letters. [#156 at 10]
“Plaintiffs must show they have sustained or are immediately in danger of sustaining some direct injury, and the injury or threat of injury must be real and immediate, not conjectural or hypothetical.” Faustin v. City & Cnty. of Denver, 268 F.3d 942, 947 (10th Cir. 2001). As a result, “[t]o establish standing, plaintiffs must show injury in fact, a causal relationship between the injury and the challenged action of the defendant, and a likelihood that the injury will be redressed by a favorable decision.” Id. “The ‘injury in fact' requirement differs ‘depending on whether the plaintiff seeks prospective or retrospective relief.'” Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (quoting Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004)). “When prospective relief-such as an injunction-is sought, ‘the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.'” Id. (quoting Tandy, 380 F.3d at 1283). “In a plea for injunctive relief, a plaintiff cannot maintain standing by asserting an injury based merely on ‘subjective apprehensions' that the defendant might act unlawfully.” Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007) (quoting Lyons, 461 U.S. at 107 n.8).
“Similarly, in the context of an action for declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir.2011). “It is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.” Id. (quotation and citation omitted) (emphasis in original). In other words, “where a plaintiff seeks a declaratory judgment against his opponent, he must assert a claim for relief that, if granted, would affect the behavior of the particular parties listed in his complaint.” Id.
Here, Plaintiff has been provided notice of the rejected letters. Moreover, the Complaint admits that Defendants have a policy of sending rejection forms when letters are rejected under the mail policy, and Plaintiff does not challenge the rejection notification policy itself. [#156 at 10] The Complaint otherwise does not provide sufficient facts to suggest that there are ongoing violations of the rejection notice policy, nor facts to suggest that Plaintiff is subject to a “real and immediate threat” of future injury. Colo. Cross Disability Coal., 765 F.3d at 1211. Plaintiff therefore does not have standing to pursue his due process claims for declaratory and injunctive relief. Accordingly, the Court RECOMMENDS that the Due Process claim in Claim Two be DISMISSED.
C. Claim Three
Finally, the Complaint alleges that Defendant Matevousian violated Plaintiff's Fifth Amendment right to equal protection by refusing to provide Plaintiff with certain phone, email, and housing incentives under the First Step Act. [#156 at 11-13] It further alleges that Plaintiff is being denied due process because: (1) the First Step Act requires the BOP to place inmates in recidivism reduction programming, (2) inmates can earn good time credit by participating in that programming, and (3) Plaintiff is not being permitted to participate. [Id. at 13-15] The Court addresses each claim in turn.
i. Equal Protection
The Equal Protection Clause prohibits government discrimination which burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference. Vacco v. Quill, 521 U.S. 793, 799 (1997). Here, Plaintiff does not allege that he was deprived of a fundamental right, and inmates do not have a fundamental right to particular prison programming, nor to a certain amount of phone and email time. See, e.g., Washington v. Borejon, 324 Fed.Appx. 741, 741 (10th Cir. 2009) (citing cases finding no liberty interest in prison rehabilitative programs); Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994) (“[A] prisoner's right to telephone access is subject to rational limitations in the face of legitimate security interests of the penal institution.” (internal quotations omitted)). The Complaint similarly does not allege that Plaintiff was discriminated against because of his membership in a protected class. [See generally #156]
The Complaint alleges that Plaintiff was denied benefits because he is a validated Aryan Brotherhood member and therefore has “pro[-]white views.” [#156 at 12-13] But being part of an organization with “pro-white views” is not the same as being discriminated against based upon a racial classification. Davis v. City of Aransas Pass, No. 2:13-CV-363, 2014 WL 2112701 (S.D. Tex. May 20, 2014) (“The term ‘white supremacist' is not a racial classification.”); Lindell v. Schneiter, No. 06-C-608-C, 2006 WL 3754805, at *1 (W.D. Wis. Dec. 13, 2006) (“[D]efendants did not place [plaintiff] in administrative confinement because he is white, but because of his membership in the Aryan Circle, an organization with strong beliefs about racial segregation. It is plaintiff's membership in a white separatist gang, not the color of his skin, that allegedly led to his placement in administrative segregation.”). Moreover, the Complaint itself makes clear that all inmates at ADX, regardless of race, are being denied the privileges Plaintiff seeks. [#156 at 13 (indicating that Plaintiff was denied privileges “simply because [he was] in ADX); id. (“The fact that [Plaintiff] happen[s] to be at ADX . . . is not a rational excuse.”)]
Therefore, to state an equal protection claim, Plaintiff “must allege that he was ‘similarly situated' to other inmates who are treated differently, and that the difference in treatment was not ‘reasonably related to legitimate penological interests.'” Matthews v. Wiley, 744 F.Supp.2d 1159, 1174 (D. Colo. 2010) (quoting Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006)); White v. Colorado, 157 F.3d 1226, 1234 (10th Cir.1998) (“Unless a legislative classification either burdens a fundamental right or targets a suspect class, it need only bear a ‘rational relation to some legitimate end' to comport with the Equal Protection Clause.” (quoting Romer v. Evans, 517 U.S. 620, 631 (1996))).
Here, the Complaint fails to plausibly allege the requirements of an equal protection claim. It does not demonstrate that other, similarly situated inmates were receiving the incentives Plaintiff seeks to obtain. Instead, Plaintiff alleges that he is being treated differently than how he was treated prior to arriving at ADX and that he is being treated “differently th[a]n other inmates [throughout] the entire BOP that are similarly situated . . . .” [#156 at 11-12] But Plaintiff's incarceration at ADX itself makes him no longer “similarly situated” to either his past self or “other inmates [throughout] the entire BOP.” Chesser v. Director, No. 15-cv-01939-NYW, 2018 WL 3729511, at *9 (D. Colo. Aug. 6, 2018) (“The ADX is the most secure prison in the federal system” and houses inmates that require “an uncommon level of security.” (citation omitted)). And the Complaint does not plausibly allege that “there are no relevant differences between [Plaintiff] and other inmates that reasonably might account for their different treatment” and therefore fails to plead that the treatment lacks legitimate penological purpose. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994).
As a result, the Complaint fails to plausibly allege facts supporting an equal protection claim and the Court accordingly RECOMMENDS that the equal protection claim in Claim Three be DISMISSED.
ii. Due Process
Defendants argue that the Claim Three due process claim is not ripe. [#162 at 16] The Court agrees. Section 101 of the First Step Act directs the Attorney General to develop a system that provides “incentives and rewards for prisoners to participate in and complete an evidence-based recidivism reduction program.” 18 U.S.C. § 3632(d). Those incentives and rewards include time credits earned after successful completion of evidence-based recidivism reduction (“EBRR”) programming or productive activities. 18 U.S.C. § 3632(d)(4)(A).
However, the First Step Act did not require EBRR programming for eligible prisoners to take immediate effect. 18 U.S.C. § 3632(d)(4). First, the Attorney General was allowed 210 days after the Act was enacted-on December 21, 2018-to develop and publish the Risk and Needs Assessment System. 18 U.S.C. § 3632(a). That document was published on July 19, 2019. See U.S. Dept. of Justice, The First Step Act of 2018: Risk and Needs Assessment System (July 19, 2019) (https://nij.gov/documents/the-first-step-act-of-2018-risk-and-needs-assessment-system.pdf) (last accessed July 26, 2021). The Bureau of Prisons (“BOP”) then had 180 days, or until January 15, 2020, to “implement and complete [an] initial intake risk and needs assessment for each prisoner” and “begin to expand the effective evidence-based recidivism reduction programs and productive activities.” 18 U.S.C. § 3621(h)(4). See Bowling v. Hudgins, Civil No. 5:19CV285, 2020 WL 1918248, at *4 (N.D. W.Va. Mar. 16, 2020), report and recommendation adopted, 2020 WL 1917490 (N.D. Va. Apr. 20, 2020) (finding petition premature because the BOP had “180 days, or until January 15, 2020, to implement the system, complete inmate assessments, and then begin to assign prisoners to appropriate evidence-based recidivism reduction programs”). Finally, the Act provides a two year phase-in period-beginning on the date that the BOP completed the initial risk and needs assessment for each prisoner- for the BOP to provide EBRR programs and productive activities for all prisoners. 18 U.S.C. § 3621(h)(2)(A). During this two-year phase-in period, the priority for EBRR programs and activities “shall be accorded based on a prisoner's proximity to release date.” 18 U.S.C. § 3621(h)(3).
Plaintiff's initial risk and needs assessment was completed on January 14, 2020, within the period allotted by the statute. [#162-9 at ¶ 6] The BOP thus has until January 2022 to provide programming, a timeline consistent with Plaintiff's allegation that he is on a waitlist for EBRR programs. [#156 at 15] Accordingly, the due process claim in Claim Three is not ripe and this Court RECOMMENDS it be dismissed. James v. Johns, No. No. 5:19-cv-117, 2020 WL 5047158, at *2 (S.D. Ga. Aug. 4, 2020) (“Because the First Step Act does not require actual implementation for each inmate until January 2022, [the plaintiff] is not entitled to an order from this Court compelling the BOP to recalculate his time credits. His petition is premature, and his claim is not yet ripe.”), report and recommendation adopted, 2020 WL 5046303 (S.D. Ga. Aug. 26, 2020); Llufrio v. Johns, No. 5:19-cv-122, 2020 WL 5248556, at *2 (S.D. Ga. Aug. 13, 2020) (citing 18 U.S.C. § 3261(h)), adopted, 2020 WL 5245133 (S.D. Ga. Sept. 2, 2020) (“This two-year phase-in date has not expired and will not expire until January 15, 2022.”).
Plaintiff's challenge to his place of confinement-and the fact that that place of confinement is not within 500 miles of his residence-is not reviewable by this or any other Court. 18 U.S.C. § 3621(b); United States v. Edwards, No. 3:14-CR-30173-NJR-3, 2019 WL 5555559, at *3-4 (S.D. Ill. Oct. 28, 2019) (collecting cases).
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion [#162] be GRANTED. Because this is Plaintiff's Fourth Amended Complaint, the Court further RECOMMENDS that Plaintiff's claims be DISMISSED WITHOUT LEAVE TO AMEND. See Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001) (finding that dismissal with prejudice was appropriate where plaintiff “had previously filed amended pleadings . . . [and had] made no showing, beyond his conclusory allegations, that he could have stated viable causes of action . . . if he had been granted yet another opportunity to amend his claims”).
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).