Chesser v. Director Federal Bureau of Prisons
ORDER by Magistrate Judge Nina Y. Wang on 6/1/2017. Plaintiff's Motion For Leave To Supplement And File Motion For Temporary Restraining Order and Preliminary Injunction 80 is DENIED; and A copy of this Order shall be sent to the following: Zachary A. Chesser #76715-083, FLORENCE ADMAX U.S PENITENTIARY, Inmate Mail/Parcels PO BOX 8500 FLORENCE, CO 81226(nywlc2, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01939-NYW
ZACHARY A. CHESSER,
DIRECTOR FEDERAL BUREAU OF PRISONS,
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This action is before the court on Plaintiff Zachary A. Chesser’s (“Plaintiff” or “Mr.
Chesser”) Motion For Leave To Supplement And File Motion For Temporary Restraining Order
and Preliminary Injunction (the “Motion”). 1
[#80, filed Feb. 6, 2017].
considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated January 7,
2016. [#37]. The court concludes that oral argument will not materially assist in the resolution
of this matter. Accordingly, following a careful review of the Motion, the associated briefing,
the entire case file, and the applicable case law, the Motion is DENIED.
The court has discussed the background of this case in several prior orders, see, e.g.,
[#53; #86], and will only discuss it here as it relates to the pending motion. Plaintiff is Muslim
Because Plaintiff proceeds pro se, this court liberally construes his pleadings; however, the
court cannot act as an advocate, even for a pro se litigant. Haines v. Kerner, 404 U.S. 519, 520–
21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover, the court applies
the same procedural rules and substantive law to Plaintiff as to a represented party. See Murray
v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir.2008).
and currently incarcerated at the United States Penitentiary Administrative Maximum Facility
located in Florence, Colorado (“ADX”). See [#1-1; #58 at ¶ 5; Chesser v. Walton, 3:12-cv01198-JPG-PMF (S.D. Ill.) (“Chesser I”), ECF No. 236 at 3]. 2 Plaintiff originally alleged that
the BOP has substantially burdened his exercise of religion in violation of the Religious Freedom
Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1 et seq. see generally [#1-1; #58], and
sought to challenge broadly both his assignment to the ADX and his treatment within the ADX
as violations of his religious freedoms. On September 8, 2015, the United States District Court
for the District of Columbia (“D.C. District Court”) transferred Plaintiff’s pro se complaint to
this court, based on Defendant’s motion pursuant to 28 U.S.C. § 1404. [#1].
Following the filing of an Amended Complaint and a Second Amended Complaint
(“SAC”), the Honorable Lewis T. Babcock issued an Order dismissing the SAC’s Claims I and
II, i.e., that restrictions on religious gatherings set out in BOP Program Statement 5360.09
(“BOP Program Statement 5360.09” or “Program Statement”) violates both the RFRA and the
Establishment Clause, as duplicative of Mr. Chesser’s claims in Chesser I pending before the
United States District Court for the Southern District of Illinois.
however, ordered that Plaintiff’s remaining claims (Claims III and IV) be drawn to a presiding
judge, and those claims were drawn to the undersigned Magistrate Judge on December 22, 2015.
On March 25, 2016, the court issued an Order denying Plaintiff’s Motion to
Reconsider Dismissal of Counts I and II [#32], wherein Plaintiff argued that Claims I and II were
distinct from those claims in Chesser I. [#53]. The court concluded that, despite Mr. Chesser’s
characterization to the contrary, such claims notably overlapped with his claims in Chesser I, “if
[#_] is an example of a convention the court uses when referring to documents in the instant
matter, whereas [ECF. No. _] is a convention the court uses to refer to documents in other
not outright duplicat[ed] . . . the claims in the two cases.” [Id. at 9]. However, by that same
Order, the court granted Plaintiff leave to file his Third Amended Complaint (“TAC”) to clarify
the issues in Claims III and IV, which became the operative complaint in this matter on June 9,
2016, nearly one-year after the case’s transfer to this district. [#58].
On August 3, 2016, Defendant Director of Federal Bureau of Prisons (“Defendant” or
“BOP”) filed its second motion to dismiss, aimed at Plaintiff’s TAC. [#67]. The court granted
Defendant’s motion, in part, and denied the motion, in part. See [#86]. Accordingly, the
remaining claims in this matter are:
(1) Claim III to the extent it challenges the BOP’s
consideration of Mr. Chesser’s ties to terrorism as the primary reason for transferring him to
ADX without regard to other applicable factors, and (2) Claim IV that the conditions at ADX
substantially burden the exercise of Mr. Chesser’s sincerely held religious beliefs in violation of
the RFRA. [Id.]. Neither of these claims encompass a facial challenge to BOP Program
Prior to the court’s ruling on the Motion to Dismiss, however, Plaintiff filed the instant
Motion on February 6, 2017. [#80]. The Motion is two-fold. First, though titled a supplement,
Plaintiff seeks leave to amend his complaint a fourth time, reasserting the twice dismissed
Claims I and II. [Id. at 1-2]. Plaintiff argues that he seeks to reassert these claims because the
Southern District of Illinois dismissed these claims without prejudice; 3 thus, they are no longer
duplicative of Chesser I. [Id.]. Second, Plaintiff seeks injunctive relief under proposed Claims I
and II in the form of a temporary restraining order (“TRO”) allowing Mr. Chesser to engage in
group prayer at the ADX, and a preliminary injunction enjoining the BOP’s imposition of
The Chesser I court specifically found that “Chesser asserts in various filing that [that] case
includes a challenge to the nationwide application of the congregate worship policy; he is
wrong.” Chesser I, 2016 WL 6471435, *1 (S.D. Ill. 2016).
Program Statement 5360.09 at all BOP facilities. [Id. at 2, 29]. From the papers, it is clear that
the request for a TRO is predicated on the claims to be asserted. Defendant opposes both the
TRO and any amendment, and Plaintiff filed a reply. See [#85; #92]. Then, on March 23, 2017,
the court held a Status Conference at which it set the following relevant deadlines: (1) March 23,
2017 for amendment of pleadings and joinder of parties; (2) September 25, 2017 for discovery;
and (3) October 27, 2017 for dispositive motions. [#100].
Mr. Chesser now seeks to re-assert a facial challenge through this instant Motion to the
BOP Program Statement 5360.09’s restrictions on religious gatherings as violating (1) the RFRA
and (2) the Establishment Clause of the First Amendment of the United States Constitution,
because religious groups are treated differently than secular groups. [#80 at 13-28]. Mr. Chesser
identifies the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. as an additional basis for
jurisdiction for these claims. 4 [#80 at 14]. As relief, Mr. Chesser seeks injunctive relief not only
as to himself personally, but also seeks to enjoin the BOP from enforcing Program Statement
5360.09 [#85-2] with respect to all BOP facilities. [#80 at 13-28]. He also seeks attorney’s fees
and costs. [Id. at 27]. He specifically disclaims any request for monetary damages. [Id. at 2
There is some question as to whether an inmate may challenge a BOP Program Statement under
the Administrative Procedures Act. BOP Program Statements are considered policies or
guidelines, and are not subject to administrative rulemaking. See Robles v. English, No. 5:13cv6,
2013 WL 3797594, at *5 (N.D. Fla. July 19, 2013) (citing cases). At least one court has found
that such Program Statements are not subject to the APA’s notice and comment requirements.
See Watkins v. Hallock, No. 13-cv-13-DLB, 2013 WL 2102888, *2 (E.D. Ky. May 5, 2013). But
because this argument was not raised or briefed by the Parties, and it is not dispositive, this court
does not address jurisdiction under the APA substantively at this time.
Rule 15(a) Amendment
Because Mr. Chesser filed the Motion prior to the deadline for amendment of pleadings,
Bridgestone/Firestone, Inc., 105 F. Supp. 2d 1194, 1195 (D. Colo. 2000) (recognizing that if a
party files a motion to amend prior to the expiration of the deadline for joinder of parties and
amendment of pleadings there is no requirement to also establish good cause to amend the
scheduling order under Rule 16(b)). Rule 15(a)(2) provides that leave to amend “shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a)(2). The court may refuse leave to amend
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); accord Watson v. Beckel, 242 F.3d
1237, 1239–40 (10th Cir. 2001) (observing that a court may dismiss a motion to amend if
amendment is futile, i.e., the amended complaint would be subject to dismissal for any reason).
This standard, however, must also be read within context of the Prison Litigation Reform
Act (“PLRA”) and the restrictions imposed by 28 U.S.C. § 1915. See Green v. Denning, No. 06cv-3298-SAC, 2009 WL 484457, at *2 (D. Kan. Feb. 26, 2009). While Rule 18(a) of the Federal
Rules of Civil Procedure governs joinder of claims, see Fed. R. Civ. P. 18(a); cf. Green, 2009
WL 484457 at * 2 (observing that the controlling principle of the Rule is that unrelated claims
against different defendants belong in different suits), the PLRA places several restrictions on
pro se prisoner litigants, including the requirement of a full payment of filing fees through partial
payments over time and a “three-strike” provision that prevents a prisoner from proceeding in
forma pauperis if three or more cases have been dismissed as frivolous, malicious, or as stating
no claim for relief. Smith v. Howell, No. 14-cv-1374, 2015 WL 4878354, at *10 (W.D. Okla.
June 23, 2015). The PLRA also requires the court to conduct a preliminary review of the
proposed claims, and must dismiss any claim that is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2); D.C.COLO.LCivR 8.1(b).
Before this court can even reach Mr. Chesser’s request for a temporary restraining order,
it must first determine whether the proposed claims are viable. The court first considers its own
subject matter jurisdiction. Only after it has satisfied itself that subject matter jurisdiction exists
may this court consider whether amendment, or a temporary restraining order, is appropriate.
Defendant argues amendment should not be permitted because this court lacks subject
matter jurisdiction over Plaintiff’s proposed claims, and levies a factual challenge to Plaintiff’s
Under Article III of the United States Constitution, federal courts only have
jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 134
S. Ct. 2334, 2341 (2014). As such, courts “are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc.
v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed,
courts have an independent obligation to determine whether subject matter jurisdiction exists,
even in the absence of a challenge from any party.
1mage Software, Inc. v. Reynolds &
Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S.
Standing is an essential component of subject matter jurisdiction. See Chrisman v. C.I.R.,
82 F.3d 371, 373 (10th Cir. 1996). To establish standing to invoke this court’s subject matter
jurisdiction, a plaintiff is required to demonstrate “(1) an ‘injury in fact,’ (2) sufficient ‘causal
connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the
injury ‘will be redressed by a favorable decision.’” Id. (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)). The elements of standing “are not mere pleading requirements
but rather an indispensable part of the plaintiff’s case.” Lujan, 504 U.S. at 561. “[A] federal
court can’t ‘assume’ a plaintiff has demonstrated Article III standing in order to proceed to the
merits of the underlying claim, regardless of the claim’s significance.” See Colo. Outfitters
Ass’n v. Hickenlooper (“Colorado Outfitters II”), 823 F.3d 537, 543 (10th Cir. 2016). Plaintiff
must establish standing to bring each of the two proposed claims separately. See Bronson v.
Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007).
To establish the existence of an “injury in fact,” “a plaintiff must offer something more
than the hypothetical possibility of injury.” Colorado Outfitters II, 823 F.3d at 544. Instead, the
alleged injury must be “concrete, particularized, and actual or imminent.” Id. (citing Lujan, 504
U.S. at 560). When seeking prospective or declaratory relief, a plaintiff must demonstrate a “real
and immediate threat” of future injury to satisfy the injury in fact requirement; past exposure to
illegal conduct does not in itself show a present case or controversy regarding injunctive relief.
Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1274 (11th Cir. 2003).
The alleged injury must also be “fairly traceable” to the action by Defendant that is challenged.
Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 180 (2000). The
Tenth Circuit has explained that Article III’s causation requirement requires proof of a
“substantial likelihood that Defendant’s conduct caused Plaintiff’s injury-in-fact.” Nova Health
Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005). The redressability requirement centers on
whether it is “likely, as opposed to merely speculative, that the injury will be redressed by a
Lujan, 504 U.S. at 561.
The questions of justiciability (other than
mootness) are ascertained as of the time the action is brought. See Friends of the Earth, 528 U.S.
In a factual challenge to subject matter jurisdiction, a court may consider evidence
outside the pleadings and resolve factual disputes without converting the motion to dismiss to
one for summary judgment, so long as the jurisdictional issue is not intertwined with the merits
of the case. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In this case, the
jurisdictional issue, i.e., whether Mr. Chesser has suffered an injury to satisfy the standing and
whether such a claim is ripe for review is not intertwined with whether BOP Program Statement
5360.09 substantively violates RFRA and/or the Establishment Clause of the First Amendment
of the United States Constitution.
Accordingly, this court finds that the consideration of
evidence outside of the record is appropriate.
Injury in Fact
As an initial matter, this court evaluates Mr. Chesser’s facial challenge of BOP Program
Statement 5360.09 as limited to his challenge of § 7(a), which is entitled Religious
Accommodation and addresses congregate services, and § 7(d), which addresses the supervision
of inmate religious groups. [#80]. Though his language of challenging the BOP Program
Statement 5360.09 is sweeping, the only purported injuries suffered by Plaintiff arise from
§§ 7(a) and 7(d). [#80 at 23, ¶ 15, 14-15]. See Jordan v. Sosa, 684 F.3d 1012, 1019 (10th Cir.
2011). Indeed, in Reply, Mr. Chesser implicitly concedes that his facial challenge is limited to
§§ 7(a) and 7(d). [#92]. Therefore, this court tailors its consideration to only those two sections
of the BOP Program Statement 5360.09. See Ayotte v. Planned Parenthood of Northern New
England, 546 U.S. 320, 328-29 (2006).
The BOP argues that Mr. Chesser has not suffered an injury-in-fact because these
provisions have no effect upon him because the ADX restricts all group activities, religious or
secular, and does not allow any congregate services. [#85 citing #85-1, ¶ 6]. That restriction is
derived not from the BOP Program Statement 5360.09, but from the Complex Supplement FCC
5360.09E, that bans all congregate services at the ADX [#85-3 at 4], and because “inmates
within the ADX are severely restricted in all of their group activities, whether religious or
secular.” [#85-1 at 3]. In response, Mr. Chesser argues that the BOP overlooks that he received
four incident reports; was sent to ADX; and lived under the constant threat of punishment. [#92
at 2]. Plaintiff also argues that the ADX allows up to eight inmates to have recreation together
and that he can and does engage in secular gatherings every single day. [Id. at 4]. He further
argues that other FCC Florence inmates are allowed only one religious gathering per week [id. at
3], and another inmate, Mohamed Ooleh, was sent back to ADX-GP for a year over a group
prayer because it violates the BOP Program Statement §§ 7(a) and 7(d). [Id. at 4]. He contends
that he anticipates that he will be transferred from ADX no later than June 17, 2017 because he is
in the ADX Step-Down Program and, therefore, his departure from ADX is “imminent.” [Id. at
7]. Finally, Mr. Chesser clarifies that his challenge to § 7(d) is not directly to the supervision of
religious gatherings, per se, but to the fact that § 7(d) requires prior BOP approval and, therefore,
functions as a cap. [Id. at 3].
With respect to his allegations that actions taken against him in the past, such past actions
cannot confer standing to bring Plaintiff’s claims for prospective injunctive and declaratory
relief. See Jordan, 654 F.3d at 1019 (“Although a plaintiff may present evidence of a past injury
to establish standing for retrospective relief, he must demonstrate a continuing injury to establish
standing for prospective relief.”). And to the extent that Mr. Ooleh, a separate inmate who is not
a party to this action, has been harmed due to violations of the BOP Program Statement, Mr.
Chesser lacks standing to bring claims on another inmate’s behalf. See Swoboda v. Dubach, 992
F.3d 286, 290 (10th Cir. 1993). Therefore, this court focuses on whether Mr. Chesser stated an
injury-in-fact as to the limitations applied to, or prohibition of, congregate prayer.
This court concludes that Mr. Chesser has stated an ongoing injury-in-fact for the
purposes of standing; i.e., Plaintiff alleges that he is being limited or deprived of the ability to
gather for religious purposes outside BOP-authorized services. [#80]. The court now turns to
whether Mr. Chesser has established a sufficient causal link §§ 7(a) and 7(d) of the BOP
Program Statement 5630.09 to his claimed injury
To show that his alleged injury is fairly traceable to §§ 7(a) and 7(d) of the BOP Program
Statement 5630.09, Mr. Chesser has to identify facts that demonstrate that there is a “substantial
likelihood” that the BOP’s implementation of the Program Statement caused his injury. Turner
v. Nat'l Council of State Boards of Nursing, Inc., 561 F. App’x 661, 670 (10th Cir. 2014). Mr.
Chesser asserts that the combination of §§ 7(a) and 7(d) results in his deprivation of the ability to
gather for religious purposes outside of BOP-authorized services.
Mr. Chesser first alleges that § 7(a) of BOP Program Statement 5630.09 authorizes only
one religious gathering per week. [#80 at 15-16]. But § 7(a) plainly states that “[t]he level of
scheduled activities is expected to be commensurate with the institution’s mission/need” and
requires authorized congregate services to be made available on an at least weekly basis. [#85-2
at 4]. Thus, § 7(a) acts as a floor to the number of congregate services, rather than as a cap, as
Mr. Chesser suggests. Therefore, any perceived injury to Mr. Chesser is not fairly traceable to
§ 7(a) of the BOP Program Statement 5630.09.
As for § 7(d), Mr. Chesser avers that this section requires inmates to seek special
authorization for religious gatherings to be permitted, presumably because constant staff
supervision is required for all inmate-led religious programs. [#80 at 16-17]. The BOP argues
that Plaintiff has failed to state an injury-in-fact as to this section of the Program Statement
because he concedes that he is not bothered by supervision [#85 at 9 (citing #80 at 40-41)]. But
that argument is misplaced; Mr. Chesser does not contend that his alleged injury is the
supervision required by § 7(d), but that he is not allowed to congregate group religious services
without authorization. Nevertheless, Mr. Chesser’s arguments regarding standing are unavailing,
because § 7(d) does not reflect a national policy prohibiting inmate-led religious programs, or
even a national policy requiring inmates to secure permission before convening an inmate group
meeting. Rather, those restrictions are implemented at ADX through different policies, including
the ADX Complex Supplement FCC 5360.09E [#85-3] and BOP Program Statement 5381.05,
governing inmate organizations.
Put another way, even if inmate-led religious
programs did not require constant supervision as set forth in § 7(d) of the BOP Program
Statement 5360.09, Mr. Chesser still would be unable to engage in unauthorized congregate
prayer because any inmate-led program requires prior authorization. [#85 at 12 (citing [#85-2;
#85-3]). His injury is simply not fairly traceable to the BOP Program Statement 5360.09, and,
accordingly, he has no standing to bring a facial challenge to this policy.
As eluded to in the prior discussion, Plaintiff also lacks standing to bring a facial
challenge to BOP Program Statement 5360.09 because even if the court was to invalidate §§ 7(a)
and 7(d) of the Program Statement, it would not resolve Mr. Chesser’s injury-in-fact. He would
still be prohibited from congregating for unauthorized group prayer, even if authorized group
prayer no longer required constant supervision, because inmates may only participate in
organizations that have been recognized and sanctioned by the Warden of the particular facility
and meetings of approved inmate organizations must be pre-approved by the Warden or
designee. [#85-4 at 4, 8-9].
Because this court concludes that Plaintiff lacks standing to bring a facial challenge to
BOP Program Statement 5360.09, it goes no further in analyzing whether the proposed
amendments can satisfy the requirements of the PLRA or whether a temporary restraining order
is warranted. See Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th
Cir. 2005) (holding that once a federal court determines that it is without subject matter
jurisdiction, it must not proceed to consider any other issue).
Therefore, for the reasons stated herein, IT IS ORDERED that:
Plaintiff’s Motion For Leave To Supplement And File Motion For Temporary
Restraining Order and Preliminary Injunction [#80] is DENIED; and
A copy of this Order shall be sent to the following:
Zachary A. Chesser #76715-083
PO BOX 8500
FLORENCE, CO 81226
DATED: June 1, 2017
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge
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