Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

THE FEDERAL OFFICERS' REPLY IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

Defendants Robert A. Hood, James Burrell, David Duncan, C. Chester, and J. C. Zuercher ("Federal Officers"), by and through undersigned counsel, file this Reply in Support of Motion to Dismiss Third Amended Complaint (Docket No. 160), pursuant to Fed. R. Civ. P. 12(b)(6). ARGUMENT I. THE COURT LACKS JURISDICTION OVER THE OFFICIAL CAPACITY CLAIMS RAISED AGAINST THE FEDERAL OFFICERS BECAUSE THERE IS NO WAIVER OF SOVEREIGN IMMUNITY. In his Response to the Federal Officers' Motion to Dismiss Third Amended Complaint ("Response"), Plaintiff concurs with Defendant that there is no waiver of sovereign immunity to raise constitutional violations against the Federal Officers in their official capacities. (Docket No. 170, Response, at 3). Accordingly, because the Court lacks jurisdiction over Claims Two, Three, 1

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Four and Five raised against the Federal Officers in their official capacities, the Court should dismiss these claims, pursuant to Fed. R. Civ. P. 12(b)(1). II. THE COURT SHOULD DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT IN ITS ENTIRETY FOR FAILURE TO EXHAUST. Under the Total Exhaustion Rule of Ross, If Plaintiff Has Failed to Exhaust One of the Bivens Claims, Then the Third Amended Complaint Must Be Dismissed in Its Entirety. In his Response, Plaintiff attempts to demonstrate that he has exhausted his administrative remedies for Claims Two, Three, Four and Five of the Third Amended Complaint. However, as the Federal Officers argued in their Motion to Dismiss, the failure to exhaust any one of these claims must result in dismissal of the entire action ­ not just the defective claim. Ross v. County of Bernalillo, 365 F.3d 1181, 1189-92 (10th Cir. 2004) (adopting the total exhaustion rule); see also Ajaj v. United States, No. 03-2564, 2005 WL 2704875 at *6 (D. Colo. Oct. 19, 2005) (Attached as Exhibit A-1 to the Federal Officers' Motion to Dismiss). Accordingly, as long as the Federal Officers can show that Plaintiff has failed to exhaust his remedies for one of the four claims he raises against the Federal Officers, then all of the claims must be dismissed. As explained below, Plaintiff has failed to exhaust Claim Five of the Third Amended Complaint.1 B. Plaintiff Has Failed to Exhaust His Administrative Remedies for Claim Five. As the Federal Officers argued in their Motion to Dismiss, neither Grievance 319722 nor Grievance 335565 satisfies Plaintiff's burden of proving exhaustion for Claim Five because

A.

Because Plaintiff has failed to prove exhaustion of his administrative remedies for Claim Five, the entire Third Amended Complaint must be dismissed. Therefore, there is no need to review why Plaintiff has failed to show exhaustion for Claims Two, Three and Four. However, if the Court wishes the Federal Officers to address the substantive arguments raised by Plaintiff in his Response concerning Plaintiff's efforts to exhaust his other claims, the Federal Officers will file supplemental briefing. 2

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Plaintiff did not exhaust either of these grievances before he commenced this lawsuit. Plaintiff initiated this lawsuit on October 2, 2003 by filing his original Complaint. (Docket No. 3). Grievance 319722 was exhausted on April 22, 2004. (Third Amended Complaint, at Ex. 5). Grievance 335565 was exhausted on September 22, 2004. (Id.) Thus, at the time that this lawsuit was "commenced" on October 3, 2003, Plaintiff had not exhausted his administrative remedies for either of these grievances. In his Response, Plaintiff attempts to rebut this argument by pointing out that the first time that he raised an equal protection claim concerning his classification at the ADX in the abovecaptioned lawsuit was when he filed his Second Amended Complaint. (Response, at 11-12). Plaintiff argues that the date that Plaintiff filed that Second Amended Complaint -- December 13, 2004 -- was after Plaintiff had exhausted Grievance 319722 in April 2004 and Grievance 335565 in September 2004. Plaintiff, thus, argues that he exhausted both grievances before he "raised" an equal protection claim concerning his classification at the ADX in this lawsuit. The Court should reject this argument. The Prison Litigation Reform Act ("PLRA") mandates that "[n]o action shall be brought ... until [the prisoner's] administrative remedies ... are exhausted." 42 U.S.C. § 1997e(a). This language clearly contemplates exhaustion prior to the commencement of the action as an indispensable requirement. Exhaustion subsequent to the filing of suit will not suffice. Booth v. Churner, 532 U.S. 731 738 (2001) ("The `available' `remed[y]' must be `exhausted' before a complaint under § 1983 may be entertained.") (emphasis added). The Tenth Circuit recently confirmed that an inmate must first exhaust his administrative remedies before commencing a lawsuit. The Tenth Circuit adopted the Seventh Circuit's strict interpretation of the PLRA's exhaustion requirements, as set forth in Perez v. Wisconsin Dep't of

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Corrections, 182 F.3d 532, 534 (7th Cir. 1999). Perez noted that the PLRA expressly states that "[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted." 182 F.3d at 534 (emphasis in original). Analogizing to the Supreme Court's decision in McNeil v. United States, 508 U.S. 106 (1993), which ruled that an FTCA case cannot be "commenced" until a litigant has exhausted his administrative remedies and that failure to exhaust an administrative tort claim before commencement subjects the FTCA claim to dismissal, the Seventh Circuit held that this same principle holds true to claims raised under the PLRA. Perez, 182 F.3d at 534-35. Thus, just like under the Supreme Court's analysis in McNeil, under the Tenth Circuit's decision in Fitzgerald, it is not sufficient for an inmate to commence a lawsuit without having exhausted a claim, then amend his Complaint to add on a claim once he has been exhausted his administrative remedies sometime thereafter. Significantly, the Tenth Circuit noted in Fitzgerald that "such a rule should apply even where it might otherwise serve the interest of judicial economy to resolve the merits of a case while it is currently before the court." Fitzgerald, 403 F.3d at 1141 (citing Perez, 182 F.3d at 535); see also id. at n.2. Even though an inmate might already have a pending lawsuit, the Tenth Circuit's rule mandates that the inmate file a new civil action that raises any claims that were exhausted after commencement of the pending lawsuit. This rule is wholly reasonable. It provides the necessary finality to allow the discovery process to proceed, and avoids situations where an inmate could amend his Complaint over and over again, adding on new claims as he completes the three-tiered grievance process and exhausts those claims. Several circuits have held that Section 1997e mandates that an inmate exhaust prior to commencing a lawsuit. See, e.g., Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) ("[A]llowing

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prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress" directive to pursue administrative remedies prior to filing a complaint in federal court."); Jackson v. Dist. of Columbia, 254 F.3d 262, 268-69 (D.C.Cir. 2001) (rejecting the argument that § 1997e(a) "permits suit to be filed so long as administrative remedies are exhausted before trial"); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) ("The prisoner, therefore, may not exhaust administrative remedies during the pendency of the federal suit."); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) ("An inmate incarcerated in a state prison, thus, must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under section 1983."); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999) ("[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment."). But see Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) (per curiam) (reversing district court's dismissal for failure to exhaust where "the record demonstrated that [plaintiff's] grievance had been denied ... at the time the court ruled"). Applying this caselaw to the instant case, the Court should dismiss Claim Five for failure to exhaust his administrative remedies before Plaintiff commenced this action on October 3, 2003 by filing his original Complaint. Plaintiff's argument that he timely exhausted Grievance 319722 on April 22, 2004 and Grievance 335565 on September 22, 2004, before he raised an equal protection claim as part of his Second Amended Complaint on December 13, 2004, must fail under the Tenth Circuit's reasoning in Fitzgerald. Plaintiff cannot bypass the PLRA's exhaustion requirement by filing his original Complaint and then amending that Complaint, over one year

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later, to add on a claim that he not had exhausted (or even presented the Bureau with his administrative remedies yet) when the lawsuit was initiated. 42 U.S.C. § 1997e(a). To rule otherwise would allow Plaintiff to circumvent the PLRA's exhaustion requirement by tacking on unexhausted claims to an existing lawsuit. Instead, Plaintiff could have filed a new lawsuit sometime in 2004 ­ after exhausting his administrative remedies ­ in which he raised his equal protection claim. III. BECAUSE THE FEDERAL OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY ON CLAIMS TWO AND FOUR RAISED AGAINST THEM IN THEIR INDIVIDUAL CAPACITIES, THE COURT MUST DISMISS THESE CLAIMS PURSUANT TO FED. R. CIV. P. 12(b)(6). The Federal Officers are Entitled to Qualified Immunity on Claim Two 1. For the Purposes of This Motion to Dismiss, the Federal Officers Concede that the Third Amended Complaint Alleges Sufficient Facts that Hood, Burrell, and Duncan Acted with "Deliberate Indifference"

A.

In his Response, Plaintiff argues that he has alleged sufficient facts to state an Eighth Amendment claim against Defendants Hood, Burrell, and Duncan. (Response, at 13-15). Plaintiff argues that because paragraph 57 of the Third Amended Complaint states that he told Defendants Hood, Burrell, and Duncan about his alleged medical needs, it is sufficient to satisfy the subjective component of an Eighth Amendment claim (i.e., to show that these Federal Officers "knew he faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it"). (Id.) Plaintiff argues that the Third Amended Complaint is not lacking, notwithstanding its failure to state that the Federal Officers independently learned about the alleged medical instructions from Dr. Lebya, given that Plaintiff himself had told these Federal Officers of the medical instructions. (Id. at 15). Plaintiff further takes issue with the Federal Officers' citation to the Tenth Circuit's decision in Smart v. Villar, arguing that the Third 6

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Amended Complaint does not allege a difference in medical opinion between Plaintiff and his doctors. Therefore, Plaintiff argues that the Third Amended Complaint states a viable Eighth Amendment claim for deliberate indifference. For the purposes of this Motion to Dismiss only, the Federal Officers concede that the Third Amended Complaint alleges sufficient facts to state a claim for deliberate indifference under the Eighth Amendment against Defendants Hood, Burrell, and Duncan. Accordingly, the Federal Officers withdraw the argument set forth in Section III.B.2.a of their Motion to Dismiss. 2. The Third Amended Complaint Lacks Any Factual Averments to Show that Defendants Chester and Zuercher Acted with Deliberate Indifference

Although the Federal Officers concede that the Third Amended Complaint alleges sufficient facts to state a claim for deliberate indifference under the Eighth Amendment against Defendants Hood, Burrell, and Duncan, they do not concede that the Third Amended Complaint alleges sufficient facts to state such a claim against Defendants Chester and Zuercher. As the Federal Officers stated in their Motion to Dismiss, the Third Amended Complaint is utterly devoid of any factual allegations to suggest that Defendants Chester and Zuercher were involved in the decision to house Plaintiff at the ADX, in contravention of alleged medical instructions that he should be housed at an institution with a non-smoking environment and located at a lower altitude. In his Response, Plaintiff does not dispute that all of the factual averments contained in the Complaint that are related to Claim Two concern Defendants Hood, Burrell, and Duncan. (Third Amended Complaint, at ¶¶ 26, 34, 57, 64). Thus, the Third Amended Complaint fails to allege any facts showing that Defendants Chester and Zuercher personally acted with deliberate indifference to Plaintiff's medical needs.

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Plaintiff attempts to avoid this fatal defect, after the fact, by supplementing his Third Amended Complaint with copies of BP-8 informal grievances filed by Plaintiff. Plaintiff appears to be arguing that these informal grievances show that Defendants Chester and Zuercher knew that Plaintiff's doctors had allegedly recommended transferring Plaintiff to a different institution with a more suitable environment for his alleged medical conditions. Plaintiff claims that Defendants Chester and Zuercher acted with deliberate indifference to Plaintiff's medical needs because "[d]uring this exhaustion process, Plaintiff filed numerous informal grievances which evidence he made both Zuercher and Chester [aware] regarding his medical needs and conditions." (Response, at 17-18). Plaintiff then cites to and attaches several informal grievances to his Response brief. (Id. at Exhibit 3). Only one of these informal grievances ­ the BP-8 informal grievance dated November 23, 2004 ­ references Defendants Chester and Zuercher by name.2 However, this November 23, 2004 informal grievance does not amend the Third Amended Complaint, nor is it sufficient to show that Defendants Chester and Zuercher acted with deliberate indifference to Plaintiff's medical needs in failing to transfer him from ADX to a different institution. This informal grievance stated that Plaintiff had allegedly complained to Defendants Chester and Zuercher about exposure to dust, lint and incense odors, and had requested that they install a high-quality air filter on the ventilation system outside of Plaintiff's cell. (Id.) Nowhere in the November 23, 2004 informal grievance does Plaintiff state that he had advised Defendants Chester and Zuercher of the alleged medical instructions from his doctors that he be transferred to

The remaining informal grievances that Plaintiff attaches to Exhibit 3 of his Response do not reference Defendants Chester and Zuercher by name, or state that either of these defendants had personal knowledge of Plaintiff's alleged medical needs. Instead, these informal grievances reference the fact that Plaintiff had complained about his transfer to the ADX to unnamed and unidentified "prison officials." This is not sufficient. 8

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a low-altitude, non-smoking environment. Nowhere in this informal grievance does Plaintiff state that Defendants Chester and Zuercher refused to transfer Plaintiff to a different institution, despite their alleged knowledge of his needs. Thus, Plaintiff cannot rely on the November 23, 2004 informal grievance to show that Defendants Chester and Zuercher knew of the alleged medical instructions that Plaintiff be transferred to a non-smoking institution located at lower altitude. Not does this grievance show that Defendants Chester and Zuercher personally participated in any decision to continue to house Plaintiff at the ADX in contravention of those medical instructions. Accordingly, because the Third Amended Complaint fails to allege any personal participation on behalf of Defendants Chester and Zuercher, it fails to state an Eighth Amendment claim against these defendants. They are thus entitled to qualified immunity on Claim Two. The Court should, therefore, dismiss this claim with respect to these defendants. 3. There Was No "Clearly Established Constitutional Right

All the Federal Officers argue that even if the Court determines that the Third Amended Complaint alleges sufficient facts to state an Eighth Amendment claim against them, and thus satisfies the first prong for overcoming the qualified immunity defense, Plaintiff cannot establish that the constitutional right to be housed in a smoke-free, low altitude environment was "clearly established." Accordingly, the Federal Officers are entitled to qualified immunity on this claim because Plaintiff cannot meet the second prong for overcoming the qualified immunity defense. Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004). Plaintiff responds to this argument by citing to Estelle v. Gamble, 429 U.S. 97, 104 (1976), and Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). With respect to Hunt, Plaintiff argues that "delays in treatment which exacerbate the prisoner's medical condition are considered

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sufficient to state an Eighth Amendment claim." (Response, at 16). With respect to Gamble, Plaintiff argues that "[p]rison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally withhold medical treatment." (Id.) Plaintiff asserts that these cases demonstrate that the Eighth Amendment claim that Plaintiff is raising in his Third Amended Complaint involves a constitutional right that was "clearly established." (Id. at 15). This argument lacks merit. The issue here is not whether the Third Amended Complaint alleges facts sufficient to state an Eighth Amendment claim for deliberate indifference, as the Tenth Circuit addressed in Hunt, 199 F.3d at 1224, and the Supreme Court addressed in Estelle, 429 U.S. at 104-06. Rather, the Federal Officers are arguing that the constitutional right at issue ­ Plaintiff's claim that exposure to smoke and high altitude violated his Eighth Amendment rights ­ was not "clearly established." Neither Hunt nor Estelle addresses the issue of when exposure to environmental factors such as smoke and altitude will rise to the level such that it violates an inmate's constitutional rights. Thus, these cases are inapposite. In fact, there is no settled caselaw stating what level of exposure to second-hand smoke violates an inmate's Eighth Amendment rights. In Helling v. McKinney, 509 U.S. 25, 35 (1993), the Supreme Court only stated that an Eighth Amendment claim can be asserted for future injury if it is alleged that the injury is due to exposure to "unreasonably high levels" of second-hand smoke. Neither the Supreme Court nor the Tenth Circuit have determined what "an unreasonably high level of smoke" constitutes. Similarly, there is no clear direction from any of the circuit courts in this regard. See generally Henderson v. Sheahan, 196 F.3d 839, 844-47 (7th Cir. 1999); Warren v. Keane, 196 F.3d 330, 331-33 (2nd Cir. 1999); Scott v. D.C., 139 F.3d 940, 943 (D.C. Cir. 1998); Rochan v. City of Angola, LA, 122 F.3d 319, 320 (5th Cir. 1997); Oliver v. Deen, 77 F.3d 156, 157-

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60 (7th Cir. 1996). Given that the circuits and the Supreme Court cannot agree on a standard as to how much smoke is too much, it is inappropriate to hold the Federal Officers liable for exposing Plaintiff to second-hand smoke. To do so would ignore the very principles of qualified immunity, as there is no manner in which they could "anticipate when their conduct might give rise to liability for damages." Anderson v. Creighton, 483 U.S. 635, 646 (1987). Similarly, there is no caselaw from any circuit discussing what level of altitude violates an inmate's Eighth Amendment rights. The only case that undersigned counsel could find that discussed an inmate's Eighth Amendment claim based upon exposure to high altitude was Boles v. Fenton Security, Inc. of Colorado, No. 99-1062, 1999 WL 1101245, **2 (10th Cir. Dec. 6, 1999) (attached as Exh. A-7) (dismissing plaintiff-inmate's Eighth Amendment claim for failure to state a claim because he had not alleged any injury resulting from his exposure to high altitude). However, that case did not discuss what altitude, if any, would be appropriate. Given that the courts have not provided a standard as to how much altitude is too high, it is inappropriate to hold the Federal Officers liable for exposing Plaintiff to high altitude. To do so would again ignore the very principles of qualified immunity, as there is no manner in which they could "anticipate when their conduct might give rise to liability for damages." Anderson, 483 U.S. at 646. Accordingly, because the constitutional right at issue in Claim Two ­ whether the Federal Officers' alleged decision to expose Plaintiff to smoke and high altitude violated his Eighth Amendment rights ­ was not "clearly established" such that the Federal Officers could reasonably anticipate that their conduct might give rise to liability, Plaintiff cannot overcome the second prong of the qualified immunity defense. Thus, the Federal Officers are entitled to qualified immunity on Claim Two of the Third Amended Complaint.

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B.

The Federal Officers are Entitled to Qualified Immunity on Claim Four A procedural due process violation against government officials requires: (1) proof of

inadequate procedures and (2) interference with a liberty or property interest. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (emphasis added). Thus, Plaintiff must demonstrate: (1) that he has a protected liberty interest in stepping down to a less restrictive housing unit at the ADX; and (2) that he has been deprived of that liberty interest without adequate process. As explained in the Federal Officers' Motion to Dismiss, the Third Amended Complaint does not meet either element for stating a cognizable procedural due process claim. Because Claim Four fails to state a cognizable procedural due process claim, Plaintiff cannot overcome the first prong of the qualified immunity defense, and the Federal Officers are entitled to qualified immunity on this claim. 1. Plaintiff Has No Liberty Interest in Being "Stepped Down" to a Less Restrictive Housing Unit at the ADX

Plaintiff argues, in a conclusory fashion, that he has a liberty interest in being "stepped down" to a less restrictive housing unit. (Response, at 18-19). The only support Plaintiff offers for this argument is the Supreme Court's decision in Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (2005).3 (Id. at 18). Plaintiff appears to rely on Wilkinson to argue by analogy and assert that there is a protected liberty interest in avoiding assignment in a certain type of housing unit. (Id.)

Wilkinson held that an inmate had a protected liberty interest in avoiding assignment to Ohio's supermaximum prison because of three components of the confinement: (1) the extreme limitation on human contact and confinement to a lighted cell for 23 hours a day; (2) the indefinite period of confinement which is only reviewed annually; and (3) the fact that confinement disqualifies an inmate for parole consideration. Wilkinson, 125 S. Ct. at 2394-95. The Wilkinson Court held that once an inmate establishes that he has a liberty interest, the next step is to consider what process is due under the framework set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Id. at 2495. 12

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Plaintiff's argument lacks merit. First, Wilkinson itself stands for the general proposition that an inmate has no liberty interest in which unit he is housed in, as long as it is within the range of custody allowed by the conviction imposed on the inmate. Wilkinson, 125 S. Ct. 2393 (citing to Meachum v. Fano and recognizing that no liberty interest arises from Due Process Clause itself because "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose"). Second, as the Federal Officers argue in their Motion to Dismiss, there is ample caselaw holding that inmates have no liberty interest in being transferred from a more restrictive housing unit to a less restrictive housing unit. Sandin v. Conner, 515 U.S. 474, 480 (1995); Hewitt v. Helms, 459 U.S. 460, 468 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976); Sule v. Story, No. 95-1422, 1996 WL 170156 (10th Cir. Apr. 11, 1996) (attached as Exhibit A-3 to Federal Officers' Motion to Dismiss).4 Accordingly, because Plaintiff does not have a liberty interest in being transferred to a less restrictive housing unit within the ADX, the Third Amended Complaint fails to assert facts

There is a line of analogous cases concerning whether an inmate's due process rights are violated when that inmate is denied the opportunity to participate in a Bureau-sponsored program, such as the ADX's step-down program. For instance, several courts have addressed whether an inmate has a protected liberty interest to participate in a drug treatment or sexual offender treatment program offered by the Bureau, and have held that there was no denial of due process where the inmate was not allowed to participate in that program. See, e.g., Dozier v. Daniels, 139 Fed.Appx. 902, 903 (9th Cir. 2005) (attached as Exh. A-8) (holding that an inmate has no right to participate in a specific educational or vocational program in prison, or to be transferred to another institution to participate in a program); Beckley v. Miner, 125 Fed.Appx. 385 (3rd Cir. 2005) (attached as Exh. A-9) (holding that Bureau of Prisons did not violate prisoner's due process rights when it refused to transfer him to correctional facility at which he could attend drug abuse treatment program and classified him as security risk, placing him in special housing unit); Brown v. Chandler, 111 Fed.Appx. 972 (10th Cir. 2004) (attached as Exh. A-10) (holding that inmate failed to establish that either Oklahoma or federal law conferred upon him a protected liberty interest in participating in a prison's sex offender treatment program (SOTP) or otherwise receiving psychiatric treatment, as required to prevail on a procedural due process claim in connection with his removal from a SOTP). 13

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sufficient to state a cognizable due process claim and the Federal Officers are entitled to qualified immunity on Claim Four. 2. The Third Amended Complaint Fails to Assert What Process Plaintiff Has Been Denied.

Plaintiff argues that he does not need to articulate what process he has been denied in order to state a viable due process claim; rather, all that matters is his allegation that he has been denied "meaningful review." (Response, at 19). Citing to Wolff v. McDonnell, 418 U.S. 539, 560 (1973), Plaintiff claims that "what process Plaintiff is due is a factual decision which can only be made by the Court in relation to the liberty interest Plaintiff is found to have been deprived of." (Id.) This argument lacks merit. First, it is simply not enough for Plaintiff to state that he was denied "meaningful review" by the Federal Officers, without alleging any additional facts. Conclusory allegations of a constitutional right are insufficient to state a claim. See Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998). It is possible that Plaintiff has already received all the review that he is entitled to, but believes that he is entitled to some additional procedural safeguard. However, without knowing what process Plaintiff claims to have been deprived of, it is impossible for the Federal Officers and the Court to determine what his claim is. Therefore, Plaintiff must identify the procedural deprivation that he has been subjected to in order to state a cognizable due process claim. Second, it is a pure legal question as to what process is due an inmate, such as Plaintiff, participating in a step-down program. It is not a "factual decision which can only be made by the Court," as Plaintiff alleges in his Response. Finally, as the Federal Officers alleged in their Motion to Dismiss, Plaintiff is actually challenging the denial of his request to step-down to an intermediate housing unit ­ not the process that the Federal Officers used in reaching that denial. 14

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(Motion to Dismiss, at 23-25). In other words, Plaintiff is really challenging the result, rather than the process used to reach that result. Claim Four fails to allege facts sufficient to state a procedural due process claim. Because there is no liberty interest implicated, Plaintiff fails to allege facts sufficient to state a violation of his due process rights. Moreover, Plaintiff fails to state anywhere in the Third Amended Complaint what process he believes he was due but did not receive. Accordingly, since Plaintiff fails to overcome the first prong of the qualified immunity test and state a violation of a constitutional right, the Federal Officers are entitled to qualified immunity on Claim Four. CONCLUSION Defendants Robert A. Hood, James Burrell, David Duncan, C. Chester, and J. C Zuercher respectfully request that the Court dismiss Claims Two, Three, Four, and Five of the Third Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). Respectfully submitted this 20th day of December, 2005. WILLIAM J. LEONE United States Attorney s/ Amanda Rocque Amanda Rocque Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0109 Facsimile: (303) 454-0404 Email: [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of December, 2005, I electronically filed the foregoing FEDERAL OFFICERS' REPLY IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael E. Hegarty [email protected] [email protected] Patrick Terrence O'Rourke [email protected] [email protected];[email protected] Carmen Nicole Reilly [email protected] [email protected] s/Amanda Rocque Amanda Rocque 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] I hereby certify that on this 20th day of December, 2005, I served the foregoing via U.S. mail on the following non-CM/ECF participants: Agency Counsel, as designated agent for and on behalf of individual Defendants: Christopher Synsvoll, Esq. Benjamin Brieschke, Esq. Federal Correctional Complex P.O. Box 8500 5880 Highway 67 South Florence, CO 81226

s/ Valerie Nielsen Valerie Nielsen Office of the United States Attorney

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