Salim v. AUSA_SDNY Office

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-03374-CNS-STV
MAMDOUH SALIM,
Plaintiff,
v.
ADX WARDEN, and
AUSA_SDNY OFFICE,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This 	matter 	is 	before 	the 	Court 	on 	Plaintiff’s 	Motion 	for 	Leave 	to 	File 	a
Supplemental to his Prisoner’s Amended Complaint under Rule 15(d) [#140] and
Plaintiff’s Motion for Leave to File the Attached Second Amended Complaint [#160]
(collectively, the “Motions”). The Motions have been referred to this Court. [## 141, 161]
This Court has carefully considered the Motions, related briefing, the case file, and the
applicable case law, and has determined that oral argument would not materially assist
the Court. 	For the following reasons, the Court respectfully RECOMMENDS that the
Motions be DENIED.
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I. 	BACKGROUND
The operative version of the complaint challenges Plaintiff’s Special Administrative
Measures (“SAMs”), which prohibit Plaintiff from all forms of communication with his son.1
[#12 at ¶¶ 4, 7] Plaintiff, proceeding pro se, initiated the instant action on December 19,
2022. [#1] On January 30, 2023, the Court directed Plaintiff to file an amended complaint,
which he filed on March 30, 2023. 	[##5, 12] 	On August 7, 2023, Defendants filed a
Motion to dismiss, seeking dismissal of Plaintiff’s claims against Defendants in their
official capacities for violations of the Religious Freedom Restoration Act (“RFRA”) and
the Administrative Procedure Act (“APA”). 	[#38] 	Plaintiff responded to the Motion and
Defendants replied. [## 80, 92]
On January 25, 2024, this Court issued a Recommendation that the Motion to
Dismiss be granted to the extent it sought to dismiss the APA claim, but denied to the
extent it sought to dismiss the RFRA claim. 	[#94] 	On March 13, 2024, United States
District Judge Charlotte N. Sweeney entered an Order adopting the Recommendation.
[#104]
On July 8, 2024, Plaintiff filed a Motion for Leave to file a Supplemental to his
Prisoner’s 	Amended 	Complaint 	(the 	“Motion 	to 	Supplement”) 	[#140]—filing 	the
supplemental allegations separately [#145]. 2 On August 5, 2024, Plaintiff filed a Motion
for Leave to file the Attached Second Amended Complaint (the “Motion to Amend”).
1 The facts alleged in the currently operative amended complaint are detailed in this
Court’s January 25, 2024 Recommendation [#94], and the Court does not repeat them
herein.
2 Although this Court initially set the Motion to Supplement for a hearing, the Court did
not hear oral argument at that time, but rather took the Motion under advisement. [##
143; 157]
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[#160] 	Through the Motions, Plaintiff seeks to amend his Complaint to add additional
allegations in support of the RFRA claim [##145 at ¶¶ 6-14; 160-1 at ¶¶ 1-39] and add
new claims under the Due Process and Ex Post Facto Clauses [##145 at ¶¶ 15-44; 160-
1 at ¶¶ 40-60]. Defendants have responded to the Motions [## 151, 171] and Plaintiff has
replied [## 164, 174].
II. 	LEGAL STANDARD
Rule 15(d) of the Federal Rules of Civil Procedure provides that “[o]n motion and
reasonable notice, the court may, on just terms, permit a party to serve a supplemental
pleadings setting out any transaction, occurrence, or event that happened after the date
of the pleading to be supplemented.” Motions to supplement are “addressed to the sound
discretion of the court, and leave to serve a supplemental pleading should be liberally
granted unless good reason exists for denying leave.” Hasan v. AIG Cas. Co., No. 1:16-
cv-02963-RM-MLC, 2018 WL 2113270, at * 3 (D. Colo. May 8, 2018) (quotation omitted).
“The court should apply the same standard for exercising its discretion under Rule 15(d)
as it does for deciding a motion under Rule 15(a).” Id. at *4.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow
amendment of the pleadings “when justice so requires.” 	The grant or denial of an
opportunity to amend is within the discretion of the Court, but “outright refusal to grant the
leave without any justifying reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and inconsistent with the spirit of the
Federal Rules.” 	Foman v. Davis, 371 U.S. 178, 182 (1962). 	“Refusing leave to amend
[under Rule 15] is generally only justified upon a showing of undue delay, undue prejudice
to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
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amendments previously allowed, or futility of amendment.” 	Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993).
An amendment is futile “if it would not survive a motion to dismiss.” 	Bituminous
Cas. Corp. v. Hartford Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at
*2 (D. Colo. Dec. 18, 2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.
2004)). Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
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elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). 	Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” 	Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quotation omitted).
III. 	ANALYSIS
Defendants 	make 	several 	arguments 	in 	support 	of 	denying 	the 	Motions.
Defendants argue: (1) Plaintiff’s additional allegations concerning the RFRA claim are
unnecessary [##151 at 5-7; 171 at 3-4]; (2) Plaintiff provides no reasonable explanation
for his delay in asserting additional claims and the amendment would be prejudicial
[##151 at 7-10; 171 at 4-7]; and (3) the proposed new claims are futile [##151 at 10-15;
171 at 8-10].3 The Court will address these arguments in turn.
A. RFRA Allegations
Plaintiff seeks to amend his Complaint to add additional allegations in support of
the RFRA claim. 	[##145 at ¶¶ 6-14; 160-1 at ¶¶ 1-39] 	Defendants argue the
3 In response to Plaintiff’s Motion to Supplement, Defendants also argue the Motion is
procedurally improper as “Plaintiff only filed the proposed supplemental allegations . . .
rather than filing the entire proposed amended complaint.” [#151 at 4] 	However, Plaintiff
rectified this error in filing the proposed amended complaint as an exhibit to the Motion to
Amend. [#160-1]
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supplemental allegations are unnecessary under Rule 15. [##151 at 5-7; 171 at 3-4] The
Court agrees.
In support of the Motions, Plaintiff argues the amended allegations are necessary
because they supply additional less-restrictive alternatives, which would adequately
address the government’s compelling interest. 	[##164 at ¶ 5; 174 at ¶¶ 2-3; see also
#145 at ¶ 12 (listing alternative less-restrictive measures available to Defendants); #160-
1 at ¶¶ 16-21 (same)] 	However, Federal Rule of Civil Procedure 8(a)(2) requires only
that a complaint contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” 	The purpose of fact pleading under Rule 8(a)(2) “is to give the
defendant fair notice of the claims against him without requiring the plaintiff to have every
legal theory or fact developed in detail.” Evans v. McDonald's Corp., 936 F.2d 1087, 1091
(10th Cir. 1991). The allegations in the operative complaint, regarding Plaintiff’s RFRA
claim, meet the standard required by Rule 8(a)(2) and survived Defendants’ Motion to
Dismiss. 	[#104] 	Additional facts “can be addressed as needed in discovery and by
motion practice4 as the case moves along.” 	Mahdy v. Cearley, No. CIV-13-0852
MV/LAM, 2014 WL 12791277, at *6 (D.N.M. May 2, 2014), report and recommendation
adopted, 2014 WL 12791278 (D.N.M. May 27, 2014); see also Romero v. Altitude Sports
& Ent., LLC, No. 21-cv-00885-CMA-SKC, 2022 WL 3868134, at *4 (D. Colo. Aug. 30,
2022) (“the purposes of Rule 15 . . . would be undermined were a plaintiff granted leave
to update his complaint each time the plaintiff learned facts supporting his allegations in
discovery”); Neal v. Aramark Unif. & Career Apparel, LLC, No. 20-2077-JWB-ADM, 2020
4 For example, Plaintiff may include additional factual information in support of his RFRA
claim in response to Defendants’ forthcoming early motion for summary judgment. [See
#157]
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WL 5548809, at *2 (D. Kan. Sept. 16, 2020) (collecting cases denying as unnecessary a
motion to amend, which seeks to add facts to bolster the plaintiff’s claims).
Plaintiff also argues the extension of the SAMs in 2024—renewed after Plaintiff
filed the operative complaint—support supplementation or amendment. [##140 at ¶¶ 3-
4; 160 at ¶¶ 3-4] 	But this Court has already ruled the operative version of the SAMs is
central to the Complaint. 	[#94 at 8-9] 	This is because the Complaint alleges the
restriction prohibiting Plaintiff from communicating with his son has been a renewed
provision in each iteration of the SAMs since at least 2013, and Plaintiff requests
injunctive relief, which if granted, affects the operative version of the SAMs, rather than
prior versions. 	[Id.] 	Because the 2024 SAMs extended the same prohibition on
communication at issue in 2023, it makes little sense to have Plaintiff file an amended
pleading, repeating the same issues, simply because the SAMs were extended with slight
modifications. 	[#160 at ¶¶ 3, 5 (arguing the 2024 SAMs contain more details than the
2023 SAMs, and an amended complaint would therefore be more precise than the last)]
Moreover, Defendants do not dispute that the operative version of the SAMs is central to
Plaintiff’s complaint. [##151 at 6; 171 at 6] Accordingly, the Court finds supplementation
or amendment of the RFRA claim is unnecessary at this stage.
B. Additional Claims
Plaintiff seeks to amend his Complaint to add two new claims under the Due
Process5 and Ex Post Facto Clauses. [##145 at ¶¶ 15-44; 160-1 at ¶¶ 40-60] Defendants
5 In the Motion to Supplement, Plaintiff’s proposed procedural due process claim
challenges the renewal of the SAMs without the “3 requirement[s] before deprivation.”
[#145 at ¶¶ 36-42] In the Motion to Amend, Plaintiff’s proposed due process claim is
labeled, a “violation of void-for-vagueness doctrine.” [#160-1 at ¶¶ 54-60] Because, the
“void-for-vagueness 	doctrine 	derives 	from 	the 	Due 	Process 	Clause 	of 	the 	Fifth
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argue: (1) Plaintiff provides no reasonable explanation for his delay in asserting additional
claims and amendment would be prejudicial [##151 at 7-10; 171 at 4-7]; and (2) the
proposed new claims are futile [##151 at 10-15; 171 at 8-10]. The Court addresses each
argument in turn.
1. 	Undue Delay and Prejudice
The Motions argue that Defendants’ Answer to the Complaint and the current
version of the SAMs, issued in 2024, provided Plaintiff with new information, which
support adding two new claims. 	[##140 at ¶ 8; 160 at ¶¶ 1-4] 	Defendants argue that
neither document put Plaintiff on notice, for the first time, that he could assert a claim
under the Due Process or Ex Post Facto Clauses, and therefore Plaintiff fails to explain
the delay in bringing these claims. [##151 at 8-9; 171 at 5-7] Defendants further argue
amendment would result in undue prejudice because Defendants have fully briefed—and
the Court has ruled on—a motion to dismiss the operative version of the complaint.
[##151 at 9-10; 171 at 7-8] 	The Court agrees with Defendants that the Motions are
sufficiently delayed, warranting denial, even absent a showing of undue prejudice.
In the Tenth Circuit, a district court may deny leave to amend for untimeliness or
undue delay without a showing of prejudice to the opposing party. See Woolsey v. Marion
Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991) (affirming a district court’s denial of a
Amendment,” Golicov v. Lynch, 837 F.3d 1065, 1068 (10th Cir. 2016), and Plaintiff
appears to assert many of the same allegations in support of the void-for-vagueness
claim, as he does the procedural due process Claim, [#160-1 at 	¶ 59 (“the ‘Ban’ was
enacted. . . without providing [Plaintiff] with the 3 pre-deprivation requirements . . . [t]he
vagueness would be over by just providing the above mentioned 3 requirements”)], the
Court refers to these due process claims interchangeably.
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motion to amend filed seventeen months after the filing of the original complaint); Las
Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)
(affirming a district court’s denial of a motion to amend filed a year and a half after the
filing of the original complaint). As the Tenth Circuit has made clear, “untimeliness alone
[can be] a sufficient reason to deny leave to amend, ‘especially when the party filing the
motion has no adequate explanation for the delay.’” Pallottino v. City of Rio Rancho, 31
F.3d 1023, 1027 (10th Cir.1994) (quoting Frank, 3 F.3d at 1365-66). 	“Where the party
seeking amendment knows or should have known of the facts upon which the proposed
amendment is based but fails to include them in the original complaint, the motion to
amend is subject to denial.” Las Vegas Ice & Cold Storage Co., 893 F.2d at 1185
(quotation omitted).
Here, the Motions assert that Defendants’ admission in the Answer provided new
information to Plaintiff to support these additional claims. [#160 at ¶¶ 1-4] However, the
Court is unpersuaded that any admission constitutes new information, as the admissions
were made in response to Plaintiff’s own allegations. [See #118 at ¶ 6; see also #164 at
¶ 16 (asserting in the Reply to the Motion to Supplement that Defendants’ admission
rendered Plaintiff’s statement “an ‘undisputed fact’ unlike before when it was [Plaintiff’s]
belief only”)]
Next, to support a claim under the Ex Post Facto Clause, Plaintiff argues that the
operative SAMs rely on three allegedly false violations of the SAMs to justify the continued
prohibition on communication. 	[##145 at ¶¶ 18-35; 160-1 at ¶¶ 44-53] 	Plaintiff argues
these false accusations—which were vaguely discussed in previous iterations of the
SAMs—were described in detail for the first time in the 2024 extension. [#160-1 at ¶ 40]
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For example, in renewing the communication ban, Defendants identified several phone
calls in 2013 between Plaintiff and his son in violation of the SAMs. 	[##145 at ¶ 32-35;
160-1 at ¶ 53] And Plaintiff argues these phone calls occurred before the initial imposition
of the communication ban, and therefore cannot justify renewal of the SAMs. 	[Id.] But,
contrary to Plaintiff’s assertion, this information is not new. In Plaintiff’s earlier civil case
challenging the same prohibition on communication, Plaintiff argued that Defendant ADX
Warden violated the Ex Post Facto Clause in falsely accusing Plaintiff of communicating
with his son between September 2012 and September 2014. Salim v. Holder, No. 13-cv-
03175-RM-CBS (D. Colo. Nov. 20, 2013), ECF No. 51 at 97-98.6 Plaintiff was therefore
on notice, when the operative complaint was filed in this action, that the continued
prohibition on communication was being justified based on allegedly false information.
Plaintiff 	has 	also 	apparently 	been 	aware 	of 	this 	theory—that 	the 	prohibition 	on
communications with his son violates the Ex Post Facto Clause—for several years.
The same is true with respect to Plaintiff’s due process claim. 	In support of the
due process claim, Plaintiff alleges “the [communication ban] was enacted and has been
renewed 	every 	year 	. 	. 	. 	without 	providing 	[Plaintiff] 	with 	the 	3 	pre-deprivation
requirements (Charges, Eviden[ce], and Hearing).” 	[#160-1 at ¶ 59; see also #145 at ¶
39 (“[Defendants] violated SCOTUS + 10th Cir. + this Court by not providing [Plaintiff] with
6 The Court finds it appropriate to take judicial notice of facts from the record of Plaintiff’s
earlier civil case, as it bears directly upon the disposition of the case at hand. Hodgson v.
Farmington City, 675 F. App’x 838, 841 (10th Cir. 2017) (finding the court may take judicial
notice of another court’s publicly filed records concerning “matters that bear directly upon
the disposition of the case at hand” (quotation omitted)); see also Tal v. Hogan, 453 F.3d
1244, 1264 n.24 (10th Cir. 2006) (“facts subject to judicial notice may be considered in a
Rule 12(b)(6) motion . . . [;] [t]his allows the court to take judicial notice of its own files and
records, as well as facts which are a matter of public record” (quotation omitted)).
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the 3 requirement[s] BEFORE they can deprive [Plaintiff] from [his son]”)] 	Plaintiff relied
on similar allegations in the previous lawsuit. 	Salim, No. 13-cv-03175-RM-CBS, ECF.
No. 11 at ¶¶ 228-250 (alleging claim in violation of the Fifth Amendment because the
prohibition on communication “was put in SAM without hearing nor Due Process”).
Plaintiff was therefore on notice, when the operative complaint was filed in this action,
that the SAMs were imposed without the purported “3 pre-deprivation requirements.”
While the Court is mindful of the difficulties pro se parties face in crafting their
pleadings, this case had been pending for two years before the Motions were filed. And
Plaintiff offers no explanation for this delay where he knew of the underlying facts upon
which the proposed amendment is based, as well as the precise theories of liability he
seeks to include, but failed to include them in his original complaint. See Las Vegas Ice
& Cold Storage Co., 893 F.2d at 1185 (“Where the party seeking amendment knows or
should have known of the facts upon which the proposed amendment is based but fails
to include them in the original complaint, the motion to amend is subject to denial”
(quotation omitted)). Accordingly, the Court finds the Motions sufficiently delayed to
warrant denial. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006)
(denying leave to amend for untimeliness limits a moving parties’ ability to “salvage a lost
case by untimely suggestion of new theories of recovery [or] to present theories seriatim
in an effort to avoid dismissal” (quotation omitted)).
2. 	Futility
In the alternative, Defendants argue the proposed new claims are futile. [## 151
at 10-15; 171 at 8-10] 	Where a proposed pleading, “as amended, would be subject to
dismissal, leave to amend need not be granted.” TV Commc'ns Network, Inc. v. Turner
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Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992) (quotation omitted). “The
futility question is functionally equivalent to the question whether a complaint may be
dismissed for failure to state a claim” pursuant to Federal Rule of Civil Procedure 12(b)(6).
Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). The Court will address the ex
post facto claim first, then turn to the due process claim.
a. 	Ex Post Facto Claim
Article I, section 10, of the United States Constitution prohibits a State from passing
any “ex post facto Law.” “[T]he Ex Post Facto Clause applies when a law retrospectively
alters the definition of criminal conduct or increases the punishment for the crime.” United
States v. Morales, No. 98-6259, 1998 WL 864107, at *1 (10th Cir. 1998) (citing Lynce v.
Mathis, 519 U.S. 433, 441 (1997)). In support of the ex post facto claim, Plaintiff alleges
the current version of the SAMs includes statements about “things [that] happened about
15 – 22 years ago,” which are “untrue and/or irrelevant to the [communication ban].”
[#160-1 at ¶ 40] 	For the Ex Post Facto Clause to apply, the condition altered must be
punitive. De Veau v. Braisted, 363 U.S. 144, 160 (1960) (“The question in each [ex post
facto law] case where unpleasant consequences are brought to bear upon an individual
for prior conduct, is whether the legislative aim was to punish that individual for past
activity, or whether the restriction of the individual comes about as a relevant incident to
a regulation of a present situation”); see also Dyke v. Meachum, 785 F.2d 267, 268 (10th
Cir. 1986) (concluding the Ex Post Facto Clause does not apply absent a showing of
punitive intent); see generally Malloy v. South Carolina, 237 U.S. 180, 183 (1915) (“The
constitutional inhibition of ex post facto laws was intended to secure substantial personal
rights against arbitrary and oppressive legislative action, and not to obstruct mere
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alteration 	in 	conditions 	deemed 	necessary 	for 	the 	orderly 	infliction 	of 	humane
punishment.”). And here, “the limitations on communications imposed by the SAMs are [
] a type of non-punitive restriction an inmate with [Plaintiff’s] history should expect to
have. Indeed, limitations on unfettered communications between inmates and the outside
world are a hallmark of prison life, not a dramatic departure from it.” Ayyad v. Holder, No.
05-cv-02342-WYD-MJW, 2014 WL 4747451, at *34 (D. Colo. Sept. 24, 2014) (quotation
omitted) (emphasis added); see also United States v. Schulte, No. 17 Cr. 548 (PAC),
2021 WL 4733022, at *2 (S.D.N.Y. Oct. 6, 2021) (recognizing that SAMs “are not a
punitive end, but rather a reasonable administrative means” (quotation omitted)), aff'd,
No. 21-2528, 2022 WL 19704799 (2d Cir. Dec. 15, 2022); Basciano v. Lindsay, 530 F.
Supp. 2d 435, 446 (E.D.N.Y. 2008) (“The court concluded that . . . the SAMs were
reasonably related to the non-punitive objective of protecting national security with ample
evidence 	of 	the 	defendant's 	extensive 	terrorist 	connections.” 	(quotation 	omitted));
Dutschke v. United States, No. 1:13CR81-SA, 2015 WL 881695, at *3 (N.D. Miss. Mar.
2, 2015) (“SAMs are non-punitive measures”). Accordingly, Plaintiff cannot state a claim
that the SAMs violate the Ex Post Facto Clause.
b. Due Process Claim
The Due Process Clause of 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. 	In both Motions, Plaintiff alleges the imposition and extension of the SAMs
deprived him of due process as Defendants did not provide him “with the 3 pre-deprivation
requirements (charges, eviden[ce], and hearing).” [#160-1 at ¶ 59; #145 at ¶ 38] In the
Motion to Amend, Plaintiff also alleges that Defendants violated the void-for-vagueness
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doctrine “in deciding to enact the ‘Ban’ without removing the vagueness surrounding the
reasons behind the enactment of the ‘Ban’.” 	[#160-1 at ¶ 57] 	To the extent the due
process claim is premised on the unconstitutional procedure in imposing and extending
the SAMs, Defendants argue this claim is barred by the statute of limitations. [##171 at
10; 151 at 11-12] 	To the extent the due process claim is premised on vagueness,
Defendants argue these allegations fail to state a claim. 	[#171 at 9-10] 	The Court
addresses each argument in turn.
i. 	Procedure
The procedural due process claim is subject to a six-year statute of limitations. 28
U.S.C. § 2401(a); see Al-Owhali v. Mukasey, No. 07-cv-02214-LTB-BNB, 2010 WL
5651033, at *7 (D. Colo. June 17, 2010) (applying six-year statute of limitation to the
plaintiff’s procedural due process claim challenging the extension and enforcement of
SAMs), report and recommendation adopted in part, rejected in part on other grounds,
Al-Owhali v. Holder, No. 07-cv-02214-LTB-BNB, 2011 WL 288523 (D. Colo. Jan. 27,
2011), aff'd, 687 F.3d 1236 (10th Cir. 2012). 	“The statute of limitations begins to run
‘when the plaintiff discovered or had reason to discover that he has suffered injury due to
the defendant's actions.’” Id. (citing United States v. Rodriguez–Aguirre, 264 F.3d 1195,
1212 (10th Cir.2001)). “Indeed, the federal common law rule on when a statute of
limitations begins to run is that it is when the plaintiff discovers, or by exercise of due
diligence would have discovered, that he has been injured and who caused the injury.”
Id. (quoting Rodriguez-Aguirre, 264 F.3d at 1212). The issue presented here, therefore,
is when did Plaintiff discover, or through the exercise of due diligence would have
discovered, that he was not receiving the process he alleges is due.
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Plaintiff claims that he was denied procedural due process when Defendants
deprived Plaintiff of communication with his son, either initially in 2013 or when the
restriction was first placed in his SAMs, in March of 2014. [##145 at ¶¶ 38-39 (referencing
Defendants’ Answer to the allegations in Plaintiff’s operative Complaint [#12] in which
they admit that Plaintiff did not receive a list of charges, evidence, or a hearing prior to
implementing the prohibition on Plaintiff communicating with his son); 12 at ¶ 6 (operative
complaint alleging: “‘The Contact Ban’ was done in 2013 without providing [Plaintiff] with
neither (1) List of charges nor (2) Evidence of a factfinder nor (3) A hearing”); ¶ 7
(operative complaint alleging: “In March 2014 when the SAM was renewed for one more
year, ‘The Contact Ban’, for the 1 st time, was put as a part of provisions in the SAM”);
160-1 at ¶ 57 (“In other words, why [did Defendants not] sp[eak] up in 2013 before
imposing the ‘Ban’”); ¶ 63 (“If a hearing was held in 2013 before imposing the ‘ban,’
[Defendants] could have removed any vagueness”)] 	Thus, Plaintiff was aware of the
conduct that has caused his alleged injury no later than March of 2014. Indeed, Plaintiff
challenged this conduct in 2014. See Salim, No. 13-cv-03175-RM-CBS, ECF No. 11 at
¶¶ 	228-250 (alleging claim in violation of the Fifth Amendment because the prohibition
on communication “was put in SAM without hearing nor Due Process”).
In his Reply to the Motion to Supplement, Plaintiff argues the Statute of Limitations
does not bar this claim, as he “is challenging the ‘Ban’ from 2019 – 2024.” [#164 at ¶ 18]
According to Plaintiff, SAMs are only good for one year and must be renewed each year.
[Id.] 	Thus, Plaintiff argues that he can challenge any of the SAMs imposed within six
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years of the filing of his challenge to the SAMs.7 [Id.] But this argument is contradicted
by the Amended Complaint Plaintiff seeks to file, which clearly attacks the original
imposition of the ban and the lack of process leading up to that decision. [#160-1 at ¶ 57
(“In other words, why [did Defendants not] sp[eak] up in 2013 before imposing the ‘Ban’”);
¶ 63 (“If a hearing was held in 2013 before imposing the ‘ban,’ [Defendants] could have
removed any vagueness”)] And, regardless, at least one court in this district has rejected
the argument that the yearly renewal of SAMs restarts the statute of limitations for a
challenge to the SAMs. See Al-Owhali, 2010 WL 5651033, at *8 (finding the procedural
due process claim challenging SAMs was barred by the six-year statute of limitations
where the SAMs were imposed in 1998, were continuously renewed, and the plaintiff filed
his initial complaint in 2007, as the plaintiff “was aware, or through due diligence would
have been aware, of the factual predicate for his claim by 1998 or 1999 at the latest”)
Accordingly, Plaintiff’s procedural due process claim is barred by the statute of limitations.
ii. 	Vagueness
Plaintiff’s due process claim is also premised on a violation of the void-for-
vagueness doctrine as Defendants “decid[ed] to enact the ‘Ban’ without removing the
vagueness surrounding the reasons behind the enactment of the ‘Ban’.” [#160-1 at ¶ 57]
7 Indeed, Plaintiff argues, without providing a citation, that he may challenge the
communication ban from 2013 until six years after the relevant SAMs terminate. [##164
at ¶ 18; 174 at ¶ 35] 	According to Plaintiff, if the SAMs were removed today, Plaintiff
could delay until 2030 to file his Complaint. [#174 at ¶ 35] Plaintiff appears to base this
argument on the theory that Defendants’ conduct constitutes a continuing violation. [Id.]
But Plaintiff’s due process theory rests upon the theory that Defendants did not provide
notice, evidence and a hearing prior to imposing the SAMs. 	[##145 at ¶ 38; 160-1 at ¶
59] Thus, the constitutional violation, if any, was completed at the time the restriction was
imposed without appropriate process. 	Matthews v. Wiley, 744 F. Supp. 2d 1159, 1169
(D. Colo. 2010) (due process challenge to transfer of prisoner to ADX was challenging a
single incident, and was not a continuing violation).
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“A fundamental principle in our legal system is that laws which regulate persons or entities
must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television
Stations, Inc., 567 U.S. 239, 253 (2012). A statute or regulation “can be impermissibly
vague for either of two independent reasons. First, if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if
it authorizes or even encourages arbitrary and discriminatory enforcement.” 	Hill v.
Colorado, 530 U.S. 703, 732 (2000) (citing Chicago v. Morales, 527 U.S. 41, 56-57
(1999)); see Mini Spas, Inc. v. South Salt Lake City Corp., 810 F.2d 939, 943 (10th Cir.
1987) (“A statute violates due process if it is so vague that a person of common
intelligence cannot discern what conduct is prohibited, required, or tolerated.”).
Here, Plaintiff does not contend that a statute or regulation is void for vagueness,
but rather he asserts that the reasons proffered for imposing the SAMs are vague. [#160-
1 at ¶ 57] Because the reasons proffered for imposing the SAMs do not govern Plaintiff’s
conduct, the void-for-vagueness doctrine does not apply. See Firth v. Shoemaker, No.
09-cv-00224-MSK-MJW, 2011 WL 4501971, at *10 (D. Colo. Sept. 29, 2011) (granting
summary judgment for the defendants on a void-for-vagueness claim, noting that: “[the
plaintiff’s] claim is not so much that the terms used are impermissibly vague, but rather
simply that he objects to the fact that [individuals] do not view the same event the way he
does”), aff'd, 496 F. App'x 778 (10th Cir. 2012). There are no allegations that suggest a
person of ordinary intelligence would not understand the governing administrative
regulation or have fair notice of its requirements—indeed, the regulation could hardly be
clearer: Plaintiff cannot have any contact with his oldest son, a prohibition Plaintiff clearly
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seems to understand.8 [#12 at ¶ 4] Accordingly, Plaintiff’s allegations to support a theory
of unconstitutional vagueness fail to state a due process claim.
Accordingly, because Plaintiff has failed to satisfy the requirements of Rule 15, the
Court respectfully RECOMMENDS that the Motions be DENIED.
IV. 	Conclusion
For 	the 	reasons 	stated 	above, 	the 	Court 	respectfully 	RECOMMENDS 	that
Plaintiff’s Motions [## 140, 160] be DENIED.9
DATED: November 20, 2024 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
8 To the extent Plaintiff argues that he did not know what he did to originally cause the
ban [#174 at ¶ 40], that claim arose in 2013 and is barred by the statute of limitations for
the reasons outlined in Section III.B.2.b.i.
9 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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