McMillan v. Wiley et al

Filing 92

ORDER. ORDERED that Defendants' Motion for Judgment on the Pleadings 65 , is GRANTED. In accordance therewith, Claim 1(a), Claim 1(b), and Claim 2, contained in the Second Amended Complaint, are DISMISSED WITH PREJUDICE for failure to state a c laim. Plaintiff's APA Claim, contained in the Request for Relief section of the Second Amended Complaint, is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Second Amended Complaint is DISMISSED in its entirety. ORDERED that the Recommendation of United States Magistrate Judge Mix 89 is AFFIRMED AND ADOPTED. ORDERED that Plaintiff's Motion for Leave to File Amended Complaint 86 is DENIED by Chief Judge Wiley Y. Daniel on 09/14/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-01709-WYD-KLM
SHANE McMILLAN,
Plaintiff ,
v.
WILEY,
FOX,
JONES,
JAVERNICK,
COLLINS,
FENLON,
MADISON,
NALLEY,
WATTS,
LAPPIN, and
DAVIS,
Defendants.

ORDER

I.

INTRODUCTION
THIS MATTER is before the Court on both Defendants’ Motion for Judgment on

the Pleadings (ECF No. 65), filed February 23, 2011, and Plaintiff’s Motion for Leave to
File Amended Complaint (ECF No. 86), filed May 11, 2011. I note that a response,
reply and surreply were filed in connection with the Motion for Judgment on the
Pleadings. Plaintiff’s Motion for Leave to File Amended Complaint was referred to
Magistrate Judge Mix for a Recommendation by order of reference dated February 16,
2010. On May 27, 2011, Magistrate Judge Mix issued a Recommendation that the

Motion for Leave to File Amended Complaint be denied. Plaintiff filed a timely objection
to the Recommendation and Defendants filed a response. The motions are fully briefed
and ripe for my review. Since the issues addressed in the two motions are related, I
address them both in this Order.
II.

BACKGROUND
This action involves the circumstances associated with Plaintiff’s incarceration at

the United States Penitentiary, Administrative Maximum Prison in Florence, Colorado
(“ADX”). Until October 2010, Plaintiff was proceeding pro se until he secured the
services of defense counsel through his placement on the Court’s list of individuals in
need of pro bono counsel. On October 28, 2010, pro bono counsel for the Plaintiff filed
their entries of appearance in this matter.
On February 23, 2011, Defendants filed the pending Motion for Judgment on the
Pleadings seeking to dismiss Plaintiff’s claims in their entirety. Since the parties
disagree as to the scope of Plaintiff’s current Complaint (the Second Amended
Complaint, filed February 8, 2010), contemporaneous to Plaintiff responding to the
Motion for Judgment on the Pleadings, Plaintiff sought leave to amend his Second
Amended Complaint to further clarify the claims at issue.1
III.

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
In the Second Amended Complaint, Plaintiff brings three claims against the

1

After reviewing Plaintiff’s response to the Motion for Judgment on the
Pleadings, I issued a Minute Order, dated April 5, 2011, notifying the Plaintiff that any
requests to amend his Second Amended Complaint could not properly be contained in a
responsive pleading and must be filed in a separate motion under D.C.COLO.L.CivR
7.1.C and controlling case law.
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Defendants under Bivens v. Six Unknown Named Agent of Fed. Bureau of Narcotics
403 U.S. 388 (1971).2 Plaintiff has sued the following individual Defendants: former
ADX Warden Wiley; ADX Associate Warden Fox; ADX Associate Warden Jones; ADX
Unit Manager Javernick; ADX Unit Manager Collins; Fenlon, Plaintiff’s case manager;
Madison, Plaintiff’s counselor; Bureau of Prisons (“BOP”) North Central Regional
Director Nalley, who works in Kansas City, Kansas; Watts, who is the BOP’s national
inmate appeals coordinator in Washington, D.C.; BOP Director Lappin, who works in the
District of Columbia; and ADX Warden Davis. (Second Am. Compl. at 2-3.)
In Claim 1(a), Plaintiff alleges that his confinement at the ADX violates
procedural due process. (Second Am. Compl. at 4.) In Claim 1(b), Plaintiff alleges that
his confinement violates the Cruel and Unusual Clause of the Eighth Amendment.
(Second Am. Compl. at 4.) In Claim 2, Plaintiff alleges that Defendants have conspired
to violate his Fifth and Eighth Amendment rights by allegedly committing the
Constitutional violations contained in Claim 1. (Second Am. Compl. at 13.) Plaintiff has
sued the Defendants in both their official and individual capacities and is seeking
monetary, declaratory, and injunctive relief. (Second Am. Compl. at 17-18.)3
Defendants seek dismissal of all claims arguing the following: (1) the Court lacks
subject matter jurisdiction over Plaintiff’s claim for money damages against Defendants
in their “official capacities” as sovereign immunity bars such claims; (2) the Court lacks

2

There is some disagreement as to whether Plaintiff asserts a fourth claim under
the APA. I address this issue later in the Order.
3

I note that on February 9, 2010, District Judge Brimmer issued an Order
dismissing the Bureau of Prisons (“BOP”) as a party, holding that sovereign immunity
barred Plaintiff’s claims against the BOP. (ECF No. 22.)
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personal jurisdiction over Defendants Lappin, Nalley and Watts as they do not have
minimum contacts with Colorado; (3) even if the Court has jurisdiction, Plaintiff lacks a
Bivens remedy for his procedural due process claim; (4) even if Plaintiff had such a
remedy, he has failed to allege sufficient facts showing that his confinement at the ADX
deprived him of a constitutionally protected liberty interest or an adequate process to
challenge his confinement; (5) Plaintiff has failed to allege that the conditions of his
confinement at the ADX violates the Eighth Amendment; (6) Plaintiff has failed to allege
a viable claim for civil conspiracy against the Defendants; and (7) Defendants are
entitled to qualified immunity as to all of Plaintiff’s claims.
By way of background, in the Second Amended Complaint, Plaintiff alleges that
he was designated to the ADX in 2007 and that he is being held in “solitary
confinement.” (Second Am. Compl. at 4.) He contends that he is confined to a cell
measuring 8’x12’ behind double doors. (Second Am. Compl. at 6.) Plaintiff further
alleges that he leaves his cell up to five times per week for two hours of recreation in a
single man cage, that he consumes his meals alone in his cell and that he has “no
human contact unless he is shackled and chained to be escorted by guards from his
cell.” (Second Am. Compl. at 6.) He also alleges that these conditions of confinement
do not meet the “criteria for general population.” (Second Am. Compl. at 6.) Plaintiff
goes on to claim that he does not have the opportunity to go to a gym, library, cafeteria,
religious services, “or any other activity with other inmates.” (Second Am. Compl. at
12.)
Plaintiff claims that Defendant Wiley, with the approval of BOP Director Lappin
and Regional Director Nalley, “transformed” certain ADX general population units into
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“control units,” but continued to refer to them as “general population.” (Second Am.
Compl. at 7.) Plaintiff further alleges that Defendants Fox and Jones have ignored his
“pleas for fair treatment” and that both have stated in government documents that
Plaintiff is housed in the general population despite “the overwhelming evidence that
proves otherwise.” (Second Am. Compl. at 9.) Moreover, Plaintiff contends that
Defendants Fenlon, Collins and Madison have allegedly “signed off” on administrative
remedies stating that Plaintiff is not housed in solitary confinement. (Second Am.
Compl. at 9-10.) Plaintiff alleges that Defendant Javernick also signed administrative
remedies, stating that Plaintiff is not due any process. (Second Am. Compl. at 10.)
Plaintiff goes on to claim that Warden Davis has “adopted the same views as [former
Warden] Wiley.” (Second Am. Compl. at 10.)
Plaintiff alleges that Defendants are aware of his conditions of confinement but
they have shown “a total and complete lack of concern for [his] rights.” (Second Am.
Compl. at 11). Plaintiff contends that while Defendants “know that Plaintiff is housed in
solitary confinement they have repeatedly signed off on falsified gov’t documents stating
that” certain ADX units are “general population” units. (Second Am. Compl. at 13). He
alleges that Defendants “continue to conspire to keep” him in solitary confinement, and
that Defendants have “engaged in conspiratorial acts to violate [his] constitutional
rights.” (Second Am. Compl. at 13).
A.

Standard of Review

Defendants’ Motion for Judgment on the Pleadings seeks to dismiss Plaintiff’s
claims in the Second Amended Complaint pursuant to Fed. R. Civ. P. 12(c). Rule 12(c)
states that “[a]fter the pleadings are closed—but early enough not to delay trial—a
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party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The Rule 12(c)
motion may be employed by the defendant as a vehicle for raising several of the
defenses enumerated in Rule 12(b) after the close of the pleadings . . . . In this context,
Rule 12(c) is merely serving as an auxiliary or supplementary procedural device to
determine the sufficiency of the case before proceeding any further and investing
additional resources in it.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1367 (3d ed. 2002).
The Tenth Circuit has instructed that courts analyze Rule 12(c) motions under
the same standards applicable to motions under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim. Park University Enterprises, Inc. v. American Casualty Co. of Reading,
PA, 442 F.3d 1239, 1244 (10th Cir. 2006). Under Rule 12(b)(6), the court must “accept
all well-pleaded facts as true and view them in the light most favorable to the plaintiff.”
Jordan-Arapahoe, LLP v. Board of County Com’rs of County of Arapahoe, 633 F.3d
1022, 1025 (10th Cir. 2011). “To survive a 12(b)(6) motion to dismiss, a plaintiff must
allege that ‘enough factual matter, taken as true, [makes] his claim for relief . . .
plausible on its face.’” Id. (quotation and internal quotation marks omitted). “A claim
has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Id.
(quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1940 (2009). Plaintiff “must
include enough facts to ‘nudge[] [his] claims across the line from conceivable to
plausible.’” Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
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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) (citations and quotation marks
omitted). “Under Rule 8, a plaintiff must provide a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Tuttamore v. Lappin, 2011 WL
1468369 at *2 (10th Cir. 2011) (quoting Fed. R. Civ. P. 8(a)(2)). As with Rule 12(b)(6),
“to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable
to plausible.” Id. Indeed, “Rule 8(a)’s mandate. . . has been incorporated” into the
12(b)(6) inquiry.” U.S. ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171
(10th Cir. 2010). Rule 8 enables “the court and the defendants to know what claims are
being asserted and to determine how to respond to those claims.” Tuttamore, 2011 WL
1468369 at *2.
B.

Subject Matter Jurisdiction Over Plaintiff’s Official Capacity Claims for
Damages

Defendants seek to dismiss Plaintiff’s claims for monetary damages against the
Defendants in their official capacities because there is no waiver of sovereign immunity.
The United States, as a sovereign, is immune from suit unless it has waived its
immunity. Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999); United States v.
Mitchell, 445 U.S. 535, 538 (1980). “Because the jurisdiction of federal courts is limited,
there is a presumption against . . . jurisdiction, and the party invoking federal jurisdiction
bears the burden of proof.” Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir.
2005) (quoting Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999)).
In response, Plaintiff concedes that the United States has not waived its
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sovereign immunity as to the availability of money damages for his claims. Based on
my careful review of the record, I find that Plaintiff’s claims for monetary damages
against the Defendants in their official capacities are barred by sovereign immunity and
are properly dismissed for lack of subject matter jurisdiction.
C.

Personal Jurisdiction Over Defendants Lappin, Nalley and Watts

Defendants Lappin, Nalley and Watts move to dismiss the Complaint for lack of
personal jurisdiction. As an initial matter, I note that in his response, Plaintiff concedes
that the Court lacks personal jurisdiction over Watts. Thus, I dismiss Plaintiff’s claims
against Defendant Watts.
Neither Lappin nor Nalley resides or works in the State of Colorado. According
to the Complaint, Lappin is the National Director of the BOP and resides in Washington,
D.C. (Second Am. Compl. at 3.) Nalley is the Regional Director of the BOP and resides
in Kansas City, Kansas. (Second Am. Compl. at 3.) Plaintiff bears the burden of
establishing that the Court has personal jurisdiction over both Lappin and Nalley.
Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000).
As a court of limited jurisdiction, this Court may only exercise jurisdiction over
nonresident defendants if: (1) the long-arm statute of Colorado permits personal
jurisdiction in this case; and (2) the exercise of personal jurisdiction in Colorado
comports with the Due Process Clause of the United States Constitution. Pro Axess,
Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1276 (10th Cir. 2005). The Supreme Court of
Colorado interprets Colorado's long-arm statute “to confer the maximum jurisdiction
permitted by the due process clauses of the United States and Colorado constitutions.”
Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo.2005). Therefore, a
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due process analysis of jurisdiction in this case will also satisfy Colorado's long-arm
statute.
Due process first requires that Plaintiff demonstrate that both Lappin and Nalley
have “minimum contacts” with the forum state, which is Colorado. Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). Although Plaintiff contends that Lappin and
Nalley “had direct knowledge of and approved the transformation of [Plaintiff’s] ADX
housing unit” from a general population unit into a solitary confinement “control” unit
(ECF No. 74 at 6), such “attempts to make out a case for personal jurisdiction over
these defendants by arguing that each of them authorized or implemented [actions]
knowing that the effects of these [actions] would be felt by him in Colorado” are
insufficient to establish minimum contacts. Hale v. Ashcroft, 2007 WL 2350150 at *3 (D.
Colo. 2007); Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1534 (10th
Cir. 1996) (noting that “the mere foreseeability of causing injury in another state is not a
sufficient benchmark for exercising personal jurisdiction”).
Moreover, “[i]t is not reasonable to suggest that federal prison officials may be
hauled into court simply because they have regional and national supervisory
responsibilities over facilities within a forum state.” Hill v. Pugh, 75 F. App'x 715, 719
(10th Cir. 2003). Thus, I find that allegations against Lappin and Nalley for actions
taken in their supervisory roles, and their awareness and alleged approval of the
“transformation” of Plaintiff’s unit to solitary confinement are not sufficient to establish
personal jurisdiction. Accordingly, Plaintiff’s claims against Lappin and Nalley are
dismissed for lack of personal jurisdiction.

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D.

Qualified Immunity

Defendants assert that they are entitled to qualified immunity to suit on Plaintiff’s
claims. Government officials are entitled to qualified immunity from liability for civil
damages when their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person in their position would have known.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity also offers
protection from trial and other burdens of litigation. See Mitchell v. Forsyth, 472 U.S.
511, 526 (1985).
When Defendants raise qualified immunity in a Rule 12(b)(6) motion to dismiss,
the Court employs a two-step process. The threshold inquiry is whether the facts taken
in the light most favorable to the plaintiff sufficiently allege a constitutional violation.
Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no constitutional right would have been
violated were the allegations established, there is no necessity for further inquiries
concerning qualified immunity.” Id. However, “if a violation could be made out on a
favorable view of the parties' submissions, the next, sequential step is to ask whether
the right was clearly established.” Id.4
Courts must determine whether the constitutional right was clearly established in
“the context of the particular case before the court, not as a general, abstract matter.”
Simkins v. Bruce, 406 F.3d 1239, 1241 (10th Cir. 2005). That is, “[t]he relevant,
dispositive inquiry in determining whether a right is clearly established is whether it

4

In a recent decision, the Supreme Court held that courts are no longer required
to follow the Saucier format in evaluating a qualified immunity claim. Pearson v.
Callahan, 555 U.S. 223 (2009).
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would be clear to a reasonable officer [in each defendant’s position] that his conduct
was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202; see also
Brosseau v. Haugen, 543 U.S. 194, 198 (2004). Further, in order for a constitutional
right to be clearly established, there must be a Supreme Court or Tenth Circuit decision
on point, or the clear weight of authority from other circuits must establish the
constitutional right. Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th
Cir. 1992). In other words, there must be case authority in which a constitutional
violation was found based upon similar conduct. See Callahan v. Millard County, 494
F.3d 891, 903 (10th Cir. 2007).
E.

Fifth Amendment Claim

In Claim 1(a), Plaintiff alleges that the conditions in the general population unit at
ADX implicate a liberty interest. Additionally, Plaintiff contends that his placement and
continued confinement at ADX is in violation of his Fifth Amendment right to due
process.
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law. . . .” U.S. CONST. Amend. V. The
Supreme Court has recognized Bivens liability for violations of the Fifth Amendment
Due Process Clause. See Davis v. Passman, 442 U.S. 228 (1979) (finding implied
damages remedy under the Due Process Clause of the Fifth Amendment). To state a
due process claim, Plaintiff must allege two elements: (1) that a recognized liberty or
property interest has been interfered with by the Defendants, and (2) that the
procedures attendant to that deprivation were not constitutionally sufficient. Kentucky
Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904 (1989). Here,
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Defendants contend that Plaintiff has not sufficiently pled a due process violation
because he has failed to demonstrate the loss of a liberty interest.
Prisoners retain “‘only a narrow range of protected liberty interests.’” Abbott v.
McCotter, 13 F.3d 1439, 1442 (10th Cir.1994) (quoting Hewitt v. Helms, 459 U.S. 460,
467 (1982), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472
(1995)). The Constitution itself does not give rise to a liberty interest in avoiding transfer
to more adverse conditions of confinement. Wilkinson v. Austin, 545 U.S. 209, 221
(2005). An inmate contending that the conditions of confinement give rise to a
constitutionally-protected liberty interest must show that the conditions constitute an
“atypical and significant hardship” when compared to the ordinary incidents of prison
life. Id. at 223.
The Tenth Circuit has applied several factors in analyzing whether conditions
impose such an atypical and significant hardship that a liberty interest exists. These
factors include whether: “(1) the segregation relates to and furthers a legitimate
penological interest, such as safety or rehabilitation; (2) the conditions of placement are
extreme; (3) the placement increases the duration of confinement . . .; and (4) the
placement is indeterminate. . . .” Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d
1334, 1342 (10th Cir. 2007). “[A]ny assessment must be mindful of the primary
management role of prison officials who should be free from second-guessing or
micro-management from the federal courts.” Id.
Here, I find that Plaintiff’s allegations fail to establish that he is deprived of a
liberty interest by being confined at the ADX because the conditions are not atypical and
significant. First, Plaintiff’s criminal history supports his placement at the ADX based on
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a legitimate penological interest. Plaintiff has convictions for conspiracy to possess and
to distribute methamphetamine, contempt of court, and for assault of a government
employee. (ECF No. 65.) The Court may take judicial notice of Plaintiff’s criminal
history, as it is in the public record. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5
(10th Cir. 2007).
Second, while Plaintiff’s allegations of restricted liberty, amenities, recreation,
and social opportunities demonstrate harsh conditions, I find that they are both
conclusory and fail to rise to a condition that is sufficiently atypical or significant in
relation to the ordinary course of prison life to implicate a liberty interest. In recent
matters, the conditions at ADX have been found to not give rise to a protected liberty
interest. See Georgacarakos v. Wiley, 2010 WL 1291833 *12 (D. Colo. 2010); Saleh v.
Federal Bureau of Prisons, 2010 WL 5464294 (D. Colo. 2010); Rezaq v. Nalley, 2010
WL 5157317 (D. Colo. 2010). I further find that Plaintiff’s contention that the labeling of
ADX units as general population instead of solitary confinement does not render the
conditions of confinement extreme or atypical.
Third, Plaintiff alleges that his placement is “indefinite” because Defendants
Collins and Fenlon have told him that he “does not need a due process hearing” and
that he “could be held in such conditions indefinitely.” (Second Am. Compl. at 10.)
However, BOP procedures provide “that an inmate’s security classification is reviewed
on at least an annual basis, if not more frequently due to intervening events.”
Georgacarakos, 2010 WL 1291833 at *6. Also, under federal law, confinement at ADX
does not disqualify Plaintiff from earning good time credits. See 18 U.S.C. § 3624(b)(1)
(providing that all BOP inmates, who are serving a term of imprisonment of more than
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one year other than a life sentence, may receive good-time credit). I find that Plaintiff’s
allegation that his confinement in ADX is “indefinite” is not plausible in light of both the
BOP regulations and 18 U.S.C. § 3624(b)(1).
Fourth, Plaintiff has failed to allege that his confinement at ADX increases the
length of his sentence. See Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (finding a
protected liberty interest when the confinement is both indefinite and where placement
in the OSP automatically rendered an inmate ineligible for parole). Therefore, I find that
Plaintiff’s allegations do not give rise to a protected liberty interest to support a claim for
violation of due process based on Plaintiff’s placement and continued confinement at
ADX.
However, even if a protected liberty interest exists, Defendants assert that
Plaintiff received adequate due process. The Court considers three factors in
determining what level of process is due: (1) the private interest that will be affected by
the official action; (2) the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and (3) the Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). “Prisoners
held in lawful confinement have their liberty interests curtailed by definition, so the
procedural protections to which they are entitled are more limited than in cases where
the right at stake is the right to be free from confinement at all.” Wilkinson, 545 U.S. at
225. Due process is satisfied if Plaintiff received the following: (1) a sufficient initial
level of process, i.e., a reasoned examination of the assignment; (2) the opportunity to
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receive notice of and respond to the decision; and (3) safety and security concerns are
weighed as part of the placement decision. DiMarco, 473 F.3d at 1344 (citation
omitted).
I find that the BOP’s regulation on security classification, which provides for
review on at least an annual basis, along with its process governing admissions to the
Step-Down Program, where inmates receive “a review of their placement at least every
six months via program reviews” provide a sufficient level of due process. Saleh v.
Federal Bureau of Prisons, 2010 WL 5464294 at *5; see Georgacarakos, 2010 WL
1291833 at *6. Further, Plaintiff states in his Second Amended Complaint that he has
utilized these administrative procedures and submitted numerous “administrative
remedy forms” or “BP-9's” to BOP officials that have been reviewed and signed by the
warden. (See Second Am. Compl. at 7-9); see 28 C.F.R. § 542.14 (outlining the
procedure an inmate must follow in filing a formal written Administrative Remedy
Request or BP-9).
Thus, I agree with Defendants that this claim should be dismissed because
Plaintiff fails to state a plausible claim that his confinement at ADX interferes with a
liberty interest or that he was deprived of a sufficient level of procedural due process.5
Moreover, to the extent that Plaintiff asserts this claim against the Defendants in their
individual capacities, they are entitled to qualified immunity. I find that there is no
clearly established law that the conditions in the ADX general population implicate a

5

In light of my finding that Plaintiff’s Fifth Amendment claim is dismissed for
failure to state a claim, I need not address Defendants’ alternative argument that
Plaintiff lacks a Bivens remedy for this type of injury.
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liberty interest for which certain procedural protections are due. Thus, the Defendants
are entitled to qualified immunity on this claim.
F.

Eighth Amendment Claim

In Claim 1(b), Plaintiff alleges that his confinement violates the Eighth
Amendment to the United States Constitution. The Eighth Amendment provides
protection against cruel and unusual punishment. This protection imposes a duty on
prison officials to maintain humane conditions of confinement, including adequate food,
clothing, shelter, sanitation, medical care, and a duty to provide inmates with
reasonable protection from serious bodily harm. Tafoya v. Salazar, 516 F.3d 912, 916
(10th Cir. 2008).
“To prevail on a ‘conditions of confinement’ claim under the Eighth Amendment,
an inmate must establish that (1) the condition complained of is ‘sufficiently serious’ to
implicate constitutional protection, and (2) prison officials acted with ‘deliberate
indifference’ to inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th
Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (internal quotation
marks omitted). As to the first requirement, an inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm. Id.
The deliberate indifference requirement provides that a prison official must act
wanton or willfully and have a “sufficiently culpable state of mind.” Farmer, 511 U.S. at
834-35 (quotation omitted). “[T]he Supreme Court has explained that ‘deliberate
indifference entails something more than mere negligence . . . [but] something less than
acts or omissions for the very purpose of causing harm or with the knowledge that harm
will result.’” DeSpain, 264 F.3d at 972 (quoting Farmer, 511 U.S. at 835). “The Court
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defined this ‘deliberate indifference’ standard as equal to ‘recklessness,’ in which ‘a
person disregards a risk of harm of which he is aware.” Id. (quoting Farmer, 511 U.S. at
836-37).
The test for deliberate indifference is both objective and subjective. Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “The objective component of the test is
met if the ‘harm suffered rises to a level sufficiently serious to be cognizable under the
Cruel and Unusual Punishment Clause’ of the Eighth Amendment.” Id. (quoting Mata v.
Saiz, 427 F.3d 745, 752-53 (10th Cir. 2006)). To prevail on the first prong, even severe
restrictions do not satisfy the objective component if the inmate is not deprived of “the
minimal civilized measure of life’s necessities.” Craig v. Eberly, 164 F.3d 490, 495 (10th
Cir. 1998). This Court recently found that the conditions of confinement at ADX do not
rise to the level of an Eighth Amendment violation, “nor do they constitute an atypical
and significant hardship sufficient to give rise to a liberty interest.” Georgacarakos,
2010 WL 1291833 at *12. “The conditions at ADX are undoubtedly extremely
restrictive. However, they are not so extreme or inhumane that they could be deemed a
significant departure from contemporary standards of decency, applied to the prison
context.” Id. Additionally, the Tenth Circuit has also concluded that the conditions of
ADX do not violate the Eighth Amendment. See Ajaj v. United States, 293 Fed.Appx.
575, 582-84 (10th Cir. 2008) (finding conditions such as “lockdown 23 hours per day in
extreme isolation,” “indefinite confinement,” and “limited ability to exercise outdoors” did
not, individually or in concert, amount to an 8th Amendment violation).
Based on my review of the Second Amended Complaint, I find that Plaintiff has
failed to make sufficient allegations to establish that he has been deprived life’s most
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basic needs. In fact, Plaintiff states that he receives meals, is housed in a cell, and has
limited, but regular, recreation periods. (See Second Am. Compl. at 6) (stating that
Plaintiff eats his meals alone, leaves his cell up to five times per week for recreation in a
man cage, and has no human contact unless he is shackled and escorted by guards.)
Rather, Plaintiff’s primary complaint seems to be his lack of social opportunities. “These
conditions are common to many high-security prisons around the country, and can
hardly be said to violate contemporary standards of decency.” Georgacarakos, 2010
WL 1291833 *12. Thus, I find that Plaintiff’s allegations fail to satisfy the objective
component of the deliberate indifference test.
To prevail on the subjective component of the deliberate indifference test, an
inmate must show that the prison official: (1) knows of a substantial risk of serious harm
posed to the inmate and (2) disregards that risk by failing to take reasonable steps to
abate the risk. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). To
recklessly disregard a risk, “[a] prison official must both be aware of facts from which the
inference could be drawn that a substantial risk of harm exists, and he must also draw
that inference.” Farmer, 537 U.S. at 837. “[E]ven if a prison official has knowledge of a
substantial risk of serious harm to inmates, he is not deliberately indifferent to that risk
unless he is aware of and fails to take reasonable steps to alleviate that risk.” Id.
Finally, the Tenth Circuit has indicated that the subjective component requires the
prison official to disregard the specific risk of harm claimed by the prisoner, not a more
general risk. Id.
Here, Plaintiff has failed to show harm from his conditions of confinement, let
alone that Defendants knew such harm and acted with deliberate indifference to cause
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it. Plaintiff’s allegations regarding the classification of his housing unit and that he is not
actually confined in a “general population” unit fail to show that prison officials acted
with a culpable state of mind. Thus, Plaintiff’s Eight Amendment claim fails and should
be dismissed. Furthermore, since Plaintiff has not established a necessary element of
an Eighth Amendment constitutional violation, he cannot satisfy the first prong of the
qualified immunity analysis. Saucier, 533 U.S. at 201 (holding that “[i]f no constitutional
right would have been violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.”). Therefore, Defendants are entitled
to qualified immunity on Plaintiff’s Eighth Amendment claim.
G.

Conspiracy Claim

In Claim 2, Plaintiff alleges that Defendants have conspired to violate his Fifth
and Eighth Amendment rights. (Second Am. Compl. at 13.) The Tenth Circuit has
stated that “a conspiracy to deprive a plaintiff of a constitutional or federally protected
right under the color of state law” is actionable. Snell v. Tunnell, 920 F.2d 673, 701
(10th Cir. 1990). However, in order to succeed on a conspiracy claim under 42 U.S.C. §
1983, “a plaintiff must plead and prove not only a conspiracy, but also an actual
deprivation of rights; pleading and proof of one without the other will be insufficient.” Id.
Further, “[w]hile a deprivation of a constitutional right is essential to proceed under a
§ 1983 claim, proof of an agreement to deprive will often require examination of conduct
occurring prior to the deprivation.” Id. at 701-02. To establish the existence of a
conspiracy, a plaintiff seeking redress must show that there was a “single plan, the
essential nature and general scope of which [was] known to each person who is to be
held responsible for its consequences.” Id. (internal citations omitted).
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Here, because I find that Plaintiff is not entitled to relief on his Fifth or Eighth
Amendment claims, Defendants cannot be guilty of participating in a conspiracy to
violate these constitutional rights. See Snell, 920 F.2d at 701. Moreover, since I have
determined that Defendants are entitled to qualified immunity on Plaintiff’s underlying
Fifth and Eighth Amendment claims, “by definition, Plaintiff[] fail[s] to state a claim for
conspiracy.” Gehl Group v. Koby, 838 F. Supp. 1409, 1419 (D. Colo. 1993).
Accordingly, this claim is dismissed.
H.

Administrative Procedure Act (“APA”) Claim

Plaintiff contends that he asserted a fourth claim for relief under the APA. The
claim is located in the “Request for Relief” section of the Second Amended Complaint.
(Second Am. Compl. at 17.) While Defendants argue that Plaintiff has not properly
pleaded this claim, because Plaintiff was pro se when he filed his Second Amended
Complaint, I will liberally construe his filing and address this claim.6 See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, I will not be a pro se litigant’s advocate, nor will I “supply additional
factual allegations to round out [Plaintiff’s Second Amended] [C]omplaint or construct a
legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1174-74 (10th Cir.
1997).
In his Surreply, Plaintiff clarifies that in this claim, he is challenging “the BOP’s
failure to abide by its own policies and the Code of Federal Regulations in its treatment

6

As I previously stated, Plaintiff is currently represented by pro bono defense
counsel, who entered appearances in the case subsequent to the filing of the Second
Amended Complaint.
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and [sic] of ADX prisoners.” (ECF No. 82 at 3.) Thus, based on my review of the
operative filings, I construe this claim to be alleging that the Defendants violated the
APA by classifying D Unit at ADX as a general population unit instead of a control unit.
(See Second Am. Compl. at 8) (generally alleging that the conduct of Defendants
should be declared an abuse of agency discretion pursuant to the APA). Throughout
his Second Amended Complaint, Plaintiff alleges that while D Unit is classified as a
general population unit, it is, in effect, a control unit equivalent to solitary confinement.
By federal regulation, before inmates may be placed in a control unit, certain
requirements must be met and certain processes must be provided to the inmate. 28
C.F.R. §§ 541.40-.50. Plaintiff argues that Defendants’ arbitrary classification of D Unit
is an abuse of agency discretion under the APA. As a result of Defendants’ improper
designation of D Unit as general population, Plaintiff alleges that he was deprived due
process because inmates designated to a general population unit are not afforded the
same protections or due process as inmates designated to a control unit.
While most agency actions are reviewable under the APA, there are two notable
exceptions. “The notable two exceptions, found in 5 U.S.C. § 701(a)(1) and (2), are for
situations in which judicial review is expressly precluded by statute or the agency action
is committed to agency discretion by law.” Payton v. United States Dep't of Agric., 337
F.3d 1163, 1167-68 (10th Cir. 2003). Here, the second exception is applicable, namely
whether the agency action is committed to agency discretion by law. This exception
applies when the “statute is drawn so that a court would have no meaningful standard
against which to judge the agency's exercise of discretion.” Heckler v. Chaney, 470
U.S. 821, 830 (1985).
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By statute, the BOP has the authority to house and classify prisoners. The
statute allows the BOP to develop
an integrated system which will assure the proper
classification and segregation of Federal prisoners according
to the nature of the offenses committed, the character and
mental conditions of the prisoners, and such other factors as
should be considered in providing an individualized system
of discipline, care, and treatment of the persons committed
to such institutions.
18 U.S.C. § 4081. Considering this language, facility classifications are clearly
committed to the discretion of the BOP, and thus, I have no meaningful standard upon
which to judge the appropriateness of those decisions. See Heckler, 470 U.S. at 830.
I further note that the Second Circuit has considered the authority conferred by
§ 4081 and noted that this, and a related statute “vest . . . broad unreviewable discretion
in the Attorney General.” Wolfish v. Levi, 573 F.2d 118, 125 & n. 13 (2d Cir.1978).
While Wolfish was later overruled on other grounds, this portion of the Second Circuit's
holding has not been overturned. See Bell v. Wolfish, 441 U.S. 520 (1979). Moreover,
the Supreme Court has recognized that “Congress has given federal prison officials full
discretion” pursuant to § 4081 and there is “no legitimate statutory” basis for a prisoner
to challenge classifications derived from such discretion. Moody v. Daggett, 429 U.S.
78, 88 n. (1976); see also Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir. 1967)
(noting that “the classification of prisoners rests within the sound discretion of the
Attorney General”). Accordingly, I find that this claim should be dismissed for lack of
subject matter jurisdiction.

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IV.

RECOMMENDATION ON PLAINTIFF’S MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT (ECF No. 89)
While the Motion for Judgment on the Pleadings was pending before me, on May

11, 2011, Plaintiff filed a Motion for Leave to File Amended Complaint (ECF No. 86).
The motion was referred to Magistrate Judge Mix by order of reference dated February
16, 2010. On May 27, 2011, Magistrate Judge Mix issued a Recommendation on
Plaintiff’s Motion for Leave to File Amended Complaint, which is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), D.C.COLO.LCivR. 72.1.
Magistrate Judge Mix recommends therein that Plaintiff’s Motion for Leave to File
Amended Complaint be denied.
Magistrate Judge Mix advised the parties that they had fourteen (14) days to
serve and file written, specific objections to the Recommendations. On June 13, 2011,
Plaintiff filed timely objections to the Recommendation which necessitates a de novo
determination as to those specified proposed findings or recommendations to which
objection is made since the nature of the matter is dispositive. Fed. R. Civ. P. 72(b); 28
U.S.C. § 636(b)(1).
A.

Standard of Review

The Court should grant leave to amend a complaint “freely . . . when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend need not be given, however, “upon
a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). In response to the Motion for Leave to File
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Amended Complaint, Defendants argue that the requested relief should be denied
because each proposed claim or amendment is futile. (ECF No. 88 at 4-14.) In her
Recommendation, Magistrate Judge Mix also applied Fed. R. Civ. P. 16(b) to the relief
requested.
B.

Analysis

Magistrate Judge Mix recommends that Plaintiff’s Motion for Leave to File
Amended Complaint be denied. (ECF No. 89 at 2.)
1.

Fed. R. Civ. P. 16(c) - Good Cause

Initially, Magistrate Judge Mix noted that the Scheduling Order provided that the
deadline for seeking leave to amend pleadings expired on September 17, 2010. (ECF
No. 55.) Plaintiff filed his motion to amend long after the expiration of this deadline,
thus, it is untimely. Under these circumstances, and prior to review of the motion
pursuant to Fed. R. Civ. P. 15(a), the Court considers whether Plaintiff has shown “good
cause” under the standard set out in Fed. R. Civ. P. 16(b) for seeking to amend the
current Second Amended Complaint (ECF No. 21). See Colo. Visionary Acad. v.
Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (quoting Dilmar Oil Co., Inc. v.
Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997), aff’d, 129 F.3d 116 (4th
Cir. 1997) (“Rule 16(b)’s ‘good cause’ standard is much different than the more lenient
standard contained in Rule 15(a). . . . Properly construed, ‘good cause’ means that
scheduling deadlines cannot be met despite a party’s diligent efforts. . . . Carelessness
is not compatible with a finding of diligence and offers no reason for a grant of relief.”)).
“To establish ‘good cause,’ the party seeking to extend the deadline must establish that
the scheduling order’s deadline could not have been met with diligence.” Denmon v.
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Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993); see also Fed. R. Civ. P. 16(b) (a
scheduling order deadline “may be modified only for good cause and with the judge’s
consent”).
Relevant to this case, the addition of counsel generally does not amount to good
cause under the standard set out in Fed. R. Civ. P. 16(b). See, e.g., Marcin Eng’g, LLC
v. Founders at Grizzly Ranch, LLC, 219 F.R.D. 516, 521 (D. Colo. 2003) (“That new
counsel is dissatisfied with the state of the case it inherited is not” good cause for action
requested “long after the court-ordered deadlines have passed.”). Although the
pleading amendment deadline expired before the appearance of any counsel (as
opposed to Plaintiff securing new counsel), Magistrate Judge Mix notes that once pro
bono counsel entered their appearance, they delayed approximately six months before
seeking leave to amend the Second Amended Complaint. Moreover, counsel did not
move for an extension of time to seek amendment nor acknowledge in the Motion to
Amend that they had an obligation to do so. Magistrate Judge Mix found that “[s]uch
history does not necessarily evidence diligence.” (ECF No. 89 at 4.) Magistrate Judge
Mix concluded that while the motion is subject to denial on this basis, she “resolves the
[m]otion on Defendants’ argument that amendment would be futile.” (ECF No. 89 at 5.)
While I find no error with this portion of the Recommendation, I, too, will review the
Recommendation and analyze the motion for leave pursuant to Fed. R. Civ. P. 15(a).
2.

Fed. R. Civ. P. 15(a) - Futility of Amendment

“Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be given
freely, the district court may deny leave to amend where amendment would be futile. A
proposed amendment is futile if the complaint, as amended, would be subject to
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dismissal.” Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor Servs, Inc., 175
F.3d 848, 859 (10th Cir. 1999); see also Bellmon, 935 F.2d at 1109-10 (“Although
dismissals under Rule 12(b)(6) typically follow a motion to dismiss . . ., a court may
dismiss sua sponte when it is patently obvious that the plaintiff could not prevail on the
facts alleged, and allowing him an opportunity to amend his complaint would be futile.”)
(citations omitted).
Here, Magistrate Judge Mix correctly noted that there are two grounds upon
which Plaintiff’s proposed Third Amended Complaint could be subject to dismissal: (1)
lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) (Claims Three and
Four); and (2) failure to state a claim upon which relief can be granted pursuant to Fed.
R. Civ. P. 12(b)(6) (Claims One, Two and Five). (ECF No. 89 at 5-7.)
I note that the proposed Third Amended Complaint adds two APA claims (Claims
Three and Four) along with adding Defendants and factual allegations to the claims
currently pending in the Second Amended Complaint.
a.

Proposed Amendments to Claim One

Magistrate Judge Mix recommends that the proposed amendment to Claim One,
which alleges a procedural due process violation, are futile. (ECF No. 89 at 7-9.)
Plaintiff proposes additional factual information regarding his designation and
confinement at ADX. Magistrate Judge Mix found that the proposed Third Amended
Complaint “lacks sufficient or unique factual information to justify a different result. This
is particularly true here given that Plaintiff does not allege that his confinement at ADX
prolongs his prison term or that it is indefinite (beyond arguments raised and rejected in
prior cases), two crucial facts in the establishment of a liberty interest. Saleh I, 2010
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WL 5464295, at *16 (citing Townsend v. Fuchs, 522 F.3d 765, 772 (7th Cir. 2008)).
In the objection, Plaintiff argues that he has put forth additional allegations that
his confinement at ADX is indefinite. Thus, he contends that he has properly stated a
claim that Plaintiff’s conditions of confinement implicate a liberty interest.
I incorporate by reference the cited authority and discussion on this very issue
contained in section III(E) of this Order. Based on the enumerated DiMarco factors and
recent case law, I find that Magistrate Judge Mix properly found that Plaintiff’s proposed
amendment does not implicate a liberty interest in his confinement at ADX. See Saleh,
2010 WL 5464294 at *3-*5; Rezaq, 2010 WL 5157317 at *6-*13; Georgacarakos, 2010
WL 1291833 at *12-*13; Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639, 652 (10th
Cir. 2006); Saleh I, 2010 WL 5464295, at *13; and Matthews v. Wiley,744 F. Supp. 2d
1159 (D. Colo. 2010).
After carefully reviewing the additional allegations put forth by Plaintiff, I find they
are conclusory and devoid of sufficient detail. See Iqbal, 129 S. Ct. at 1950. For
example, Plaintiff alleges that he “has been held in extreme and indefinite solitary
confinement . . . .” (Proposed Third Am. Compl. ¶ 1.) Plaintiff further alleges that “[b]y
keeping Plaintiff in solitary confinement in the conditions described above for an
indefinite duration, Defendants have deprived Plaintiff of basic human needs . . . .”
(Proposed Third Am. Compl. ¶ 48.) These generalized and conclusory allegations of
the conditions of confinement do not state that Plaintiff is subject to different conditions
than any other inmate at ADX or different conditions than those that have been
determined not to impose atypical or significant hardship.
Notably, Plaintiff’s own allegations concede that he received at least two reviews
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for entry into the Step-Down Program, but the Committee has “arbitrarily denied [him]
entry into the Program.” (Proposed Third Am. Compl. ¶ 70.) While Plaintiff contests the
meaningfulness of his program reviews, DiMarco does not require the level of process
alleged by Plaintiff in order for a term of confinement to be considered definite. See
DiMarco, 473 F.3d at 1343-44. It is clear that Plaintiff has received at least two reviews
of his confinement and the opportunity to administratively appeal an unsuccessful
review. Therefore, based on my findings set forth in Section III(E) of this Order and my
review of the proposed Third Amended Complaint , I find that Plaintiff has failed to
sufficiently allege a protected liberty interest and overrule his objection. I agree with
Magistrate Judge Mix’s conclusion that amendment of this claim to assert additional
factual information or Defendants would be futile.
b.

Proposed Amendments to Claim Two

Claim Two addresses an alleged conspiracy by Defendants to violate Plaintiff’s
constitutional rights. Because I agree with Magistrate Judge Mix that Plaintiff is not
entitled to relief on his Fifth Amendment claim or his Eighth Amendment claim
(discussion to follow), Defendants cannot be guilty of participating in a conspiracy to
violate these constitutional rights. (See Section III(G) of this Order.) I overrule Plaintiff’s
objection and find that amendment of this claim to assert additional factual information
or Defendants would be futile.
c.

Proposed Claim Three

Claim Three addresses whether proposed Defendant BOP’s decision to deny
Plaintiff placement in the Step-Down Unit Program at ADX violates the APA. In her
Recommendation, Magistrate Judge Mix accurately noted that while most agency
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actions are reviewable pursuant to the APA, there are two exceptions. The exception at
issue here is statutory preclusion. See Payton v. United States Dep’t of Agric., 337 F.3d
at 1167-68 (10th Cir. 2003). Specifically, 18 U.S.C. § 3621 confers “discretion on the
BOP to designate a prisoner’s place of imprisonment.” Wedelstedt v. Wiley, 477 F.3d
1160, 1162 (10th Cir. 2007); see also Matthews, 744 F. Supp. at 1175 (noting that
pursuant to § 3621, and in the context of placement at ADX, BOP can consider any
seemingly relevant information in determining where to house an inmate). Thus,
Magistrate Judge Mix found that “[p]ursuant to the clear language of the statute,
decisions about where to incarcerate an inmate (which, when ADX is involved,
necessarily include consideration of whether an inmate is entitled to be placed in
particular units pursuant to the Step-Down Unit Program), fall within § 3621.” (ECF No.
89 at 10-11.) However, Magistrate Judge Mix stated that under 18 U.S.C. § 3625,
placement decisions governed by § 3621 are “exempt[] . . . from the APA’s judicial
review provisions.” See Jordan v. Wiley, 2011 WL 441776 at *9 (10th Cir. 2011)
(holding that the APA does not apply to substantive BOP disciplinary determinations
involving the reduction of good-time credits); see also Redmon v. Wiley, 349 Fed.Appx.
251, 256 (10th Cir. 2009) (stating that the APA barred review of a BOP decision
determining a particular prisoner’s eligibility in a prison early release program governed
by § 3621). Noting that this particular issue (whether the Court has jurisdiction to review
the BOP’s eligibility decisions for the Step-Down Unit Program) has not yet been
decided, based on the cited authority and the similarities of those cases to the instant
matter, Magistrate Judge Mix reasoned that Plaintiff’s proposed Claim Three would be
barred by statute.
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In his objection, citing Ajaj v. Federal Bureau of Prisons, 2011 WL 902440 (D.
Colo. 2011), Plaintiff argues that § 3621 does not exempt a review of the BOP’s denial
of his entry into the Step-Down Unit Program. However, I do not find Ajaj to be
sufficiently analogous to the allegations put forth in the instant matter. In Ajaj, the
plaintiff made an APA claim directed at a disciplinary notice issued by the defendants.
Essentially, plaintiff asserted that the decision to find him guilty of certain charges was
arbitrary and capricious because the defendants failed to consider plaintiff’s written
statement and medical records. Id. at *12. The issue of whether the Court had
jurisdiction to consider the APA claim was not addressed. In fact, the defendants’ sole
basis for seeking dismissal of the claim was that is was rendered moot by plaintiff’s
transfer to another facility. Id. Thus, I find Plaintiff’s objection to be without merit, and it
is overruled. I agree with Magistrate Judge Mix’s well-reasoned recommendation that
amendment to assert this new claim against proposed Defendant BOP would be futile.
d.

Proposed Claim Four

Claim Four challenges whether proposed Defendant BOP’s designation of the D
Unit at ADX as a general population unit violates the APA. Magistrate Judge Mix
recommends that amendment of this claim would be futile. (ECF No. 89 at 12-13.) I
incorporate by reference the cited authority and discussion contained in section III(H) of
this Order. Based on my earlier finding that I have no meaningful standard upon which
to judge the appropriateness of the BOP’s decision to classify D Unit as a general
population unit because facility classifications are clearly committed to the discretion of
the BOP, I overrule Plaintiff’s objection. I agree and find no error with Magistrate Judge
Mix’s recommendation that amendment to assert this claim against proposed Defendant
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BOP would be futile.
e.

Proposed Claim Five

Claim Five addresses whether the conditions in the general population unit at
ADX violate the Eighth Amendment. Magistrate Judge Mix recommends that
amendment of this claim to assert additional factual information or Defendants would be
futile. (ECF No. 89 at 14.) I incorporate by reference the cited authority and discussion
contained in section III(F) of this Order.
In his objection, Plaintiff asserts that by alleging additional facts, he has stated a
plausible Eighth Amendment claim. Specifically, Plaintiff adds allegations that “he is
held in solitary confinement in his cell for twenty-two to twenty-four hours a day.”
(Proposed Third Am. Compl. ¶ 39). He goes on to allege that when he “is permitted to
leave his cell, it is only to go to a single man, dog-kennel-type cage for up to two hours
of ‘recreation.’” (Proposed Third Am. Compl. ¶¶ 40-41). Frequently, Plaintiff is denied
outdoor recreation. (Proposed Third Am. Compl. ¶¶ 40-41.) Plaintiff claims that he “has
little to no human contact” and has very limited opportunity to speak to other inmates.
(Proposed Third Am. Compl. ¶¶ 43-45). Plaintiff is deprived “of basic human needs
such as contact with other people, environmental stimulation, and sufficient exercise.”
(Proposed Third Am. Compl. ¶¶ 48.)
After reviewing the additional factual allegations, I see no reason to deviate from
my earlier finding that Plaintiff has failed to put forth sufficient allegations of an Eighth
Amendment claim. He has failed to add any information to refute my finding that he
receives basic needs—meals, shelter, and regular recreation opportunities. As I
previously stated, Plaintiff’s allegations about the lack of interaction with other inmates
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fail to satisfy the objective component of the deliberate indifference test. See
Georgacarakos, 2010 WL 1291833 at *12.
With respect to the subjective component of the deliberate indifference test,
Plaintiff’s conclusory allegations that the conditions of confinement have caused him
“significant psychological and physical harm” are insufficient to show that Defendants
knew about such harm and acted with deliberate indifference to cause it. See Callahan,
471 F.3d at 1159 (10th Cir. 2006); Farmer, 537 U.S. at 837. Thus, I overrule Plaintiff’s
objection and agree with Magistrate Judge Mix’s recommendation that amendment of
this claim to assert additional factual information or Defendants would be futile.
V.

CONCLUSION
Based on the foregoing, it is
ORDERED that Defendants’ Motion for Judgment on the Pleadings (ECF No.

65), filed February 23, 2011, is GRANTED. In accordance therewith, Claim 1(a), Claim
1(b), and Claim 2, contained in the Second Amended Complaint, are DISMISSED WITH
PREJUDICE for failure to state a claim. Plaintiff’s APA Claim, contained in the
“Request for Relief” section of the Second Amended Complaint, is DISMISSED
WITHOUT PREJUDICE for lack of subject matter jurisdiction. Thus, the Second
Amended Complaint is DISMISSED in its entirety. It is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Mix (ECF No. 89) is AFFIRMED AND ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Plaintiff’s Motion for Leave to File Amended
Complaint (ECF No. 86), filed May 11, 2011, is DENIED.

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Dated: September 14, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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