Chesser v. Director Federal Bureau of Prisons

Filing 53

ORDER by Magistrate Judge Nina Y. Wang on 03/25/16 DENYING as moot 42 Motion to Dismiss for Lack of Jurisdiction; DENYING as moot 42 Motion to Dismiss for Failure to State a Claim; DENYING as moot 44 Motion to Stay; GRANTING in part and DEN YING in part 46 Motion to Amend/Correct/Modify; DENYING 32 Motion for Leave to Reconsider Dismissal of Counts. The entry of a Scheduling Order and discovery in this case is STAYED pending the filing of an Answer and further Order of the court. Text Only Entry(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01939-NYW
ZACHARY A. CHESSER,
Plaintiff,
v.
DIRECTOR FEDERAL BUREAU OF PRISONS,
Defendant.

ORDER
Magistrate Judge Nina Y. Wang
This action is proceeding before this Magistrate Judge pursuant to 28 U.S.C. § 636(c),
D.C.COLO.LCivR 72.2(d), and the Order of Reference for all purposes entered by the Honorable
Marcia S. Krieger, Chief Judge, on January 7, 2016. [#37]. Currently pending before the court
are: (1) Plaintiff’s Motion for Leave to Reconsider Dismissal of Counts 1 & 2 [#32, filed Jan. 4,
2016]; (2) Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint [Doc. 22]
Under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [#42, filed Jan. 27, 2016]; (3)
Defendant’s Motion to Stay Discovery [#44, filed Feb. 5, 2016]; and (4) Plaintiff’s Motion for
Leave to Amend [#46, filed Feb. 2016].
BACKGROUND
Plaintiff Zachary A. Chesser (“Plaintiff” or “Mr. Chesser”) is an ADMAX prisoner
currently incarcerated at United States Penitentiary located in Florence, Colorado (“ADMAX
Florence”) who initiated this civil action pursuant to the Religious Freedom Restoration Act of

1993 (“RFRA”), 28 U.S.C. § 2000bb-1 et seq., on December 22, 2014 in the United States
District Court for the District of Columbia (“D.C. District Court”). [#1-1]. Plaintiff is Muslim,
and alleges that the BOP prohibits two or more prisoners from gathering together for the
purposes of prayer, though the BOP allows gathering of prisoners for other purposes. [Id.]
Accordingly, Plaintiff sued the Director of the Bureau of Prisons, in his official capacity,
(“Defendant” or “BOP”) for declaratory and injunctive relief, seeking to enjoin Defendant from
imposing greater restrictions on his religious activities. [Id. at 4]. The D.C. District Court
granted Mr. Chesser’s Motion to Proceed In Forma Pauperis [#1-9], allowing Plaintiff to
proceed without the full prepayment of fees. [#1-9].
On September 8, 2015, this action was transferred to this court from the D.C. District
Court to this court, based on Defendant’s motion pursuant to 28 U.S.C. § 1404. [#1]. The D.C.
District Court found that while Plaintiff challenges the nationwide policy of the BOP, the
relevant actions occurred in Florence, Colorado and it would be more convenient to the
witnesses and in the interest of justice to litigate this action in Colorado. [Id. at 3]. On
September 10, 2015, the court directed Plaintiff to re-file his Complaint on the court-approved
form. [#4].
Mr. Chesser filed an Amended Complaint on October 7, 2015 [#86]. He filed on his own
behalf and others similarly situated Sunni Muslims and asserted a number of claims, challenging
the nationwide policy of the BOP: (1) the BOP Program Statement 5360.09 ban on religious
gatherings amounts to a violation of the RFRA; (2) the BOP Program Statement 5360.09 ban on
religious gatherings amounts to a violation of the Establishment Clause of the United States
Constitution; (3) the Director’s Policy of housing Muslims with terrorism ties in long-term

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solitary confinement violates RFRA; and (4) Plaintiff’s specific confinement substantially
burdens his religious beliefs. [#8].
Mr. Chesser then proceeded to file a number of additional motions: Motion to Take
Judicial Notice [#6], a Motion for Mediation [#17], a Motion for Temporary Restraining Order
and Preliminary Injunction (“TRO Motion”) [#18], and a Motion for Summary Judgment [#19].
By Order dated November 5, 2015, the Honorable Gordon P. Gallagher directed Plaintiff to file a
Second Amended Complaint, noting that a pro se prisoner was not permitted to file an action on
behalf of others or act as a class representative of a putative class. [#20 at 3]. Judge Gallagher
further found that Mr. Chesser’s 86-page Amended Complaint violated Rule 8(a) of the Federal
Rules of Civil Procedure, which requires a short, plain and direct statement. [Id. at 4]. Judge
Gallagher directed Plaintiff to file a Second Amended Complaint that complied with Rule 8(a)
that reflected his individual claims. [Id.]. Mr. Chesser’s pending motions were then denied as
premature. [Id. at 5].
On November 20, 2015, Plaintiff filed his Second Amended Complaint. [#22]. In the
Second Amended Complaint, he maintained the same four causes of action from the Amended
Complaint, but purported to limit the claims to himself individually. [Id.] Pursuant to the
court’s independent obligation to review complaints in which the plaintiff is proceeding in forma
pauperis and dismiss if the operative complaint fails to state a claim upon which relief can be
granted, seeks monetary relief from a defendant immune from such relief, or are frivolous or
malicious, 28 U.S.C. §§ 1915(e)(2) and 1915A, the Honorable Lewis T. Babcock issued an
Order dated December 22, 2015, dismissing his first and second claims as almost identical to the
action he brought in the United States District Court for the Southern District of Illinois

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(“Southern District of Illinois”). [#24 at 4]. Senior Judge Babcock determined the third and
fourth claims were not duplicative of Mr. Chesser’s claims brought in the Southern District of
Illinois and were not appropriate for summary dismissal, and directed that the action with the
remaining claims be drawn to a presiding judge. [Id.]
The action was then drawn to the undersigned Magistrate Judge. [#25]. The Parties
consented to the jurisdiction of a Magistrate Judge on January 4, 2016 and January 6, 2016,
respectively.

[#31, #33].

On January 7, 2016, Chief Judge Krieger entered an Order of

Reference, referring this matter for all purposes upon consent of the Parties. [#37]. The court
held a Status Conference on January 28, 2016, but has not yet entered a Scheduling Order in the
case.
There are four motions currently pending. The first motion, a Motion to Reconsider
Dismissal of Counts 1 and 2 (the “Motion to Reconsider”), was filed by Plaintiff on January 4,
2016. [#32]. In the Motion to Reconsider, Plaintiff moves the court to reconsider its dismissal
of counts 1 and 2 of his Complaint. [#32 at 1]. Counts 1 and 2 were dismissed by the Honorable
Lewis T. Babcock in an Order dated December 22, 2015. [#24]. Judge Babcock stated that
Plaintiff’s first and second claims, which are based on the BOP’s policy of banning group prayer
in violation of the Religious Freedom Restoration Act (“RFRA”) and the First Amendment,
should be dismissed because they are duplicative of claims in a separate pending federal lawsuit,
Chesser v. Walton, 3:12-cv-01198-JPG-PMF (S.D. Ill.) (“Chesser I”). [#24 at 4]. Plaintiff seeks
reconsideration of that dismissal on the grounds that the claims in this case are distinct from the
claims in Chesser I.

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The second pending motion is a Motion to Dismiss Plaintiff’s Second Amended
Complaint [Doc. 22] Under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [#42], filed by
Defendant on January 27, 2016. [#42].
The third pending motion is Defendant’s Motion to Stay Discovery (the “Motion to
Stay”) [#44] filed on February 5, 2016. The Motion to Stay requests the court to stay discovery
in this case pending resolution of Defendant’s Motion to Dismiss. Defendant cites to the nature
of Plaintiff’s RFRA claims and the fact that RFRA claims would require the BOP to demonstrate
that the restrictions at ADMAX Florence are the least restrictive means of furthering its
compelling security interests in Plaintiff’s case. Defendant represents that evidence about what
means are the “least restrictive” will necessarily include sensitive information about ADMAX
Florence security measures and the BOP’s reasons for implementing those specific controls.
Defendant argues that the serious security risks at issue in this case on the basis of the claims
advanced here set its request apart from the “run-of-the-mill dispute between civil litigants who
merely seek the convenience of a stay.” [#44 at 2].
The fourth pending motion is Motion for Leave to Amend (“Motion to Amend”) [#46]
filed by Plaintiff on February 9, 2016.

Plaintiff requests leave to file a Third Amended

Complaint. In support of his Motion to Amend, Plaintiff argues that he should be permitted
leave to amend his Second Amended Complaint to clarify “every single issue” Defendant raised
in its Motion to Dismiss. [#46 at 2]. The court considers each of these motions in turn.

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ANALYSIS
I.

Motion to Reconsider Dismissal of Counts 1 and 2
The court turns first to Plaintiff’s Motion to Reconsider Dismissal of Counts 1 and 2.

[#32]. Plaintiff argues that this court should reconsider and allow him to reinstate his first and
second claims for relief, which Judge Babcock dismissed as duplicative of the claims in the
Chesser I case. While there is no specific Federal Rule that provides for reconsideration, this
District generally treats reconsideration of a non-final order, as “fall[ing] within a court's plenary
power to revisit and amend interlocutory orders as justice requires.” United Fire & Cas. Co. v.
Boulder Plaza Residential, LLC, No. 06-cv-00037-PAB-CBS, 2010 WL 420046, at *3 (D. Colo.
Feb. 1, 2010); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities.”).

Courts in this district have applied different standards on motions for

reconsideration of non-final orders. See United Fire & Cas. Co., 2010 WL 420046, at *3.
Nonetheless, the prevailing approach adopted by courts considers whether new evidence or legal
authority has emerged or whether the prior ruling was clearly in error. See James v. Dunbar, No.
09-cv-02479-PAB, 2010 WL 3834335, at *1 (D. Colo. Sep. 27, 2010). Mr. Chesser does not
appear to assert that there is either new evidence or legal authority that has emerged since Senior
Judge Babcock dismissed his first and second claims for relief. The court then considers whether
the prior ruling was clearly in error, and even under the liberal standard applied to a pro se
litigant’s pleadings, finds that it was not.

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Chesser I involves Mr. Chesser’s challenge to a ban on group prayer under the Free
Exercise and Establishment Clauses, the Equal Protection Clause, and the RFRA. See Chesser I,
Amended Complaint for Declaratory, Injunctive and Monetary Relief [ECF No. 19 at 1].1
Defendants in Chesser I include the Director of the Federal Bureau of Prisons and the Attorney
General of the United States. See [id. at 2-6]. Plaintiff’s first and second claims in this case are
based on Plaintiff’s allegations regarding the BOP’s policy of banning group prayer in violation
of the Religious Freedom Restoration Act (“RFRA”) and the First Amendment. [#22 at 4-5, 1119].
Mr. Chesser argues that his claims in Chesser I are narrower than the claims in this case.
See [#32 at 1-3]. He asserts that the Court in Chesser I “has repeatedly declined” to consider
“the BOP’s national policy” on religious gatherings in that case. [#32 at 2]. He states that he
only “has suits [in Chesser I] on group prayer five times per day and a local claim which pertains
to Arabic classes at a specific prison.” [Id.]; see also [#40 at 2]. He suggests that his claims in
the present case are broader, challenging restrictions on “all religious gatherings.” See [id. at 1
(emphasis in original)]. Mr. Chesser also argues that Chesser I “only has the potential to (1)
enjoin the Director from enforcing PS 5360.09 against Islam’s five daily prayers, (2) to expunge
his incident reports for that conduct, and (3) to reverse his ADX transfer for that conduct.” [#40
at 2].
The court finds that the relationship between the claims in Chesser I and the present case
is not as clear-cut as Mr. Chesser represents. Indeed, there is notable overlap, including that the
1

Where the court refers to the filings made in Electronic Court Filing (“ECF”) system in this
action, it uses the convention [#_]. When the court refers to the ECF docket number for a
different action, it uses the convention [ECF No. _]. In either case, the court identifies the page
number as assigned by the ECF system.
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claims in both cases challenge BOP Program Statement P5360.09 to the extent it bans group
prayer. In June 2014, Mr. Chesser was transferred from USP-Marion to ADMAX Florence. In
Chesser I, Mr. Chesser argued that his claims for injunctive relief in that case were not rendered
moot by his transfer because the policy that he challenges in Chesser I allegedly banning group
prayer “is applied at every BOP facility by Holder (or Lynch) and [BOP Director] Samuels[.]”
See Chesser I, Response to Defendants’ Motion for Summary Judgment, [ECF No. 180 at 24].
The policy at issue in Chesser I is contained in a BOP Program Statement regulating religious
accommodations, which provides that “[t]he level of scheduled activities is expected to be
commensurate with the institution’s mission/need. Authorized congregate services will be made
available for all inmates weekly with the exception of those detained in any Special Housing
Units (SHUs).” BOP Program Statement P5360.09, Religious Beliefs and Practices at 3, § 7.a.,
available at http://www.bop.gov/policy/progstat/5360_009.pdf; see also Chesser I, [ECF No. 180
at 27 (referencing Program Statement P5360.09, and asserting that “[t]he policy is a national
policy”)]. Similarly, claims one and two which Judge Babcock dismissed in this case challenge
the same BOP Program Statement P5360.09.

See [#22 at 4 (“Claim One: BOP Program

Statement 5360.09’s ban on religious gatherings violates RFRA”); #22 at 5 (“Claim Two: BOP
Program Statement 5360.09’s ban on religious gatherings violates the Establishment Clause”);
see also #22 at ¶ 9 (“The supervision policy is in PS5360.09 section 7(d).”); id. at ¶ 10 (“The
policy limiting religiously motivated gatherings to one per week is section 7(a) of PS5360.09.”).
Not only does Mr. Chesser challenge the applicability of the same BOP Program
Statement P5360.09 in both cases, but as he acknowledges, the claims in Chesser I involve a
challenge of the BOP’s “ban” on five-times-daily group prayer, which he also challenges in the

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present case. Mr. Chesser suggests that claims one and two should move forward because he is
only challenging the BOP Program Policy in Chesser I to the extent it pertains to five-timesdaily group prayer, where here he also challenges numerous forms of group prayer, religious
classes, celebrations, and general religious gatherings. [#32 at 2-3]. However, the court finds
that attempting to parse out the components of Mr. Chesser’s first and second claims in this case
to only move forward with discovery on the components of these claims which Mr. Chesser
alleges are not at issue in Chesser I is not efficient and may not even be feasible, particularly
considering the plain overlap, if not outright duplication between the claims in the two cases. In
addition, Chesser I is set for trial before the United States District Court for the Southern District
of Illinois on May 23, 2016, having been re-set due to pending motions for summary judgment.
Chesser I, [ECF No. 232]. Regardless of the outcome of Chesser I, this court will be better
informed as to any overlap in issues between the two cases.
Accordingly, the court denies Mr. Chesser’s Motion to Reconsider Dismissal of Counts 1
and 2.
II.

Motion for Leave to Amend
The court turns next to Plaintiff’s Motion for Leave to Amend [#46]. In the Motion for

Leave to Amend, Plaintiff seeks leave from the court to docket a Third Amended Complaint,
which he states “clarifies every single issue” raised in Defendant’s Motion to Dismiss.
Prior to the deadline for amending pleadings set out in the scheduling order governing a
case, Fed. R. Civ. P. 15(a) provides that leave to amend “shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). 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

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deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Whether to allow amendment is within the trial court’s
discretion. Burks v. Okla. Publ’g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).
Here, the court does not find that there was undue delay or undue prejudice to the
opposing party. Defendant does not oppose the Motion to Amend. The court has not yet entered
a Scheduling Order in this case, meaning that discovery is not underway. Moreover, as set forth
below, the court is granting Defendant’s Motion to Stay Discovery. Finally, the court notes that
under the facts and circumstances of this case, Defendant has not expressed specific concerns
about futility, and the court anticipates that Defendant will address its concerns in that regard by
filing an appropriate motion to dismiss.
Nevertheless, the proposed Third Amended Complaint that Plaintiff attached as an
exhibit to his Motion to Amend reasserts the first and second claims for relief which were
dismissed from this case by Judge Babcock. See [#48-1 at 5-6]. The court understands that at
the time Plaintiff filed the Motion to Amend, the court had not yet ruled on Plaintiff’s Motion for
Reconsideration. Nevertheless, in this Order the court denies the Motion for Reconsideration,
making the inclusion of claims one and two in the Third Amended Complaint improper.
Pursuant to D.C.COLO.LCivR 15.1(b), Plaintiff is given 14 days from the date of this Order to
file an updated Third Amended Complaint which does not include the first and second claims for
relief.
III.

Motion to Dismiss
Prior to the date on which Mr. Chesser filed his Motion for Leave to Amend, Defendant

filed a Motion to Dismiss. [#42]. Defendant seeks to dismiss Plaintiff’s claims on the grounds

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that Plaintiff lacks standing and has not stated a plausible claim for relief for his third claim for
relief under the RFRA based on BOP policies that allegedly “make it much easier to place
[inmates with ties to terrorism] in solitary confinement for extensive periods of time,” and thus
allegedly impose a substantial burden on Plaintiff’s “ability to engage in . . . religious gatherings
. . . because gathering itself is restricted.” See [#42 at 11-15; #22 at ¶¶ 33, 37]. Defendant also
seeks to dismiss Plaintiff’s fourth claim for relief under the RFRA based on his conditions of
confinement at the ADMAX Florence on the basis that Plaintiff has failed to plead a claim for
relief under the plausibility standard of Fed. R. Civ. P. 12(b)(6). [#42 at 15-26].
“The filing of an amended complaint moots a motion to dismiss directed at the complaint
that is supplanted and superseded.” Strich v. United States, No. 09-cv-01913-REB-KLM, 2010
WL 14826, at *1 (D. Colo. Jan. 11, 2010) (citations omitted). Defendant’s Motion to Dismiss
directed to the Second Amended Complaint will also be moot upon filing of the Third Amended
Complaint by Mr. Chesser. See AJB Props., Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, No. 092021-JWL, 2009 WL 1140185, at *1 (D. Kan. April 28, 2009) (finding that amended complaint
superseded original complaint and “accordingly, defendant's motion to dismiss the original
complaint is denied as moot”); Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo.
2006) (noting that defendants’ motions to dismiss are “technically moot because they are
directed at a pleading that is no longer operative”). Accordingly, Defendant’s Motion to Dismiss
is denied as moot. Defendant may answer or otherwise respond to Plaintiff’s Third Amended
Complaint after Plaintiff files an updated version of the Third Amended Complaint which omits
claims one and two.

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IV.

Motion to Stay Discovery
The court turns next to Defendant’s Motion to Stay Discovery.

[#44].

Defendant

requests the court stay discovery in this case pending resolution of its Motion to Dismiss. [#44 at
2]. Because the court denies the Motion to Dismiss as moot, the Motion to Stay Discovery
pending the Motion to Dismiss is also denied as moot. However, the court will consider the
issues presented by both Parties in the context of briefing the Motion to Stay in determining
whether to move forward with setting a Scheduling Conference prior to the filing of an Answer
in this case.
Defendant argues that discovery should be stayed in this matter because there unique
circumstances in this case which raise safety and security concerns, including that Mr. Chesser’s
claims under the RFRA requires that the BOP must demonstrate that the restrictions on group
prayer at the ADMAX Florence are the least restrictive means of furthering its compelling
security interest in Mr. Chesser’s case. [#44 at 1]. If Mr. Chesser’s RFRA claims are not
dismissed, Defendant represents that discovery will include examination of the specific safety
and security risks Plaintiff poses and how the BOP manages them. [#44 at 2]. Not only are there
likely to be disputes about the production and access to this information, but Defendant argues
that producing such sensitive information to a pro se ADMAX Florence inmate inevitably may
create a risk that prison security controls and the BOP’s deliberations about what controls to use
will be compromised. [#44 at 2]. Plaintiff argues that he would be prejudiced by a stay of
discovery because his claims in this case include a request for injunctive relief, and without that
relief his religious exercise is severely burdened and he is forced to endure extremely undesirable
placement in solitary confinement and at ADMAX Florence. [#47 at 7].

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This court has yet to set a Scheduling Conference in this case or enter a Scheduling
Order. Rule 16(b)(2) provides that a judge must issue a scheduling order as soon as practicable,
unless she finds

good cause for delay.

Fed. R. Civ. P. 16(b)(2).

Though not squarely

applicable, the Court considers the following factors in determining whether to refrain from
entering a Scheduling Order and opening discovery in this matter: “(1) plaintiff’s interests in
proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay;
(2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not
parties to the civil litigation; and (5) the public interest.” String Cheese Incident, LLC v. Stylus
Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955, at *2 (citing FDIC v. Renda, No.
85-2216-O, 1987 WL 348635, at *2 (D. Kan. Aug. 6, 1987)).
While the court recognizes that a stay of discovery will lengthen the timing of this case,
on balance, this court finds that discovery in this matter should be delayed until the court and the
Parties have a firm understanding of what issues will proceed in this matter. In addition, Chesser
I is scheduled for trial in the coming two months, and the court anticipates that there may be
some issues—both evidentiary and otherwise—that may be resolved or better framed by the
resolution of that case. Therefore, this court finds good cause under Rule 16(b)(2) to delay the
entry of a Scheduling Order and stay the opening of discovery as contemplated by Rule 26(d)(1)
until an Answer is filed in this matter.
CONCLUSION
Therefore, for the foregoing reasons, IT IS ORDERED that:
(1)

Plaintiff’s Motion for Leave to Reconsider Dismissal of Counts 1 & 2 [#32] is

DENIED;

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(2)

Plaintiff’s Motion for Leave to Amend [#46] is GRANTED IN PART and

DENIED IN PART;
(3)

Plaintiff is directed to file a Third Amended Complaint which does not include

counts 1 and 2 no later than 14 days after the date of this Order;
(4)

Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint [Doc. 22]

Under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [#42] is DENIED as MOOT; and
(5)

Defendant’s Motion to Stay Discovery [#44] is DENIED as MOOT, but the

entry of a Scheduling Order and discovery in this case is STAYED pending the filing of an
Answer and further Order of the court.

DATED: March 25, 2016

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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