Jeffrey R. Simmermaker v. Donald Trump

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JEFFREY R. SIMMERMAKER,
Plaintiff - Appellant,
v.
DONALD TRUMP; UNITED STATES
ATTORNEY GENERAL; UNITED
STATES OF AMERICA; FEDERAL
BUREAU OF PRISONS; FEDERAL
CORRECTIONAL INSTITUTION-FCI
FLORENCE; CARTER, Warden-FCI
Florence,
Defendants - Appellees.
No. 21-1123
(D.C. No. 1:20-CV-01671-KMT)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges.
_________________________________
Jeffrey Simmermaker, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his complaint asserting claims related to his prison’s response to
the COVID-19 pandemic. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
January 26, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-1123 Document: 010110637205 Date Filed: 01/26/2022 Page: 1

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I. Background
The operative complaint decries the response by the Federal Correctional
Institution located in Florence, Colorado (FCI Florence) to the COVID-19 pandemic,
including its alleged failure to follow CDC guidelines regarding social distancing and
its implementation of a policy that allegedly deprives inmates’ access to musical
instruments. As a legal basis for redress, the complaint invokes 18 U.S.C. §§ 3626
and 4042, “generally references the First Amendment, and uses language associated
with the Eighth and Fifth Amendment doctrines of deliberate indifference, due
process, and equal protection.” R. at 283.
The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. It found that §§ 3626 and 4042 do not create a right of
action. To the extent the complaint could be construed to bring constitutional claims,
the court found the complaint failed to adequately allege any constitutional violation.
The district court dismissed Simmermaker’s First Amendment allegations in
part because the complaint did not allege Simmermaker “plays a musical instrument,
or that his own freedom of expression has been curtailed by the alleged depravation,”
R. at 287, and in part because the complaint did not allege the prison’s policy
limiting access to musical instruments was unrelated to a legitimate penological
interest. It dismissed Simmermaker’s Eighth Amendment claim because the
complaint did not allege prison officials knowingly disregarded the risks from
COVID-19. The court determined that the complaint did not state a plausible Fifth
Amendment due-process violation because it did not allege any practice at FCI
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Florence was atypical in the prison setting. And the court held that the complaint
failed to state a cognizable equal-protection claim because it did not allege
Simmermaker is similarly situated with inmates who have been treated differently.
Simmermaker appeals the district court’s dismissal of his complaint.
II. Discussion
We review de novo a district court’s dismissal for failure to state a
claim. VDARE Found. v. City of Colo. Springs, 11 F.4th 1151, 1169 (10th Cir.
2021). Because Simmermaker is proceeding pro se, “we liberally construe his
filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315
(10th Cir. 2013). Our “broad reading of [Simmermaker’s] complaint does not relieve
[him] of the burden of alleging sufficient facts on which a recognized legal claim
could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The district court’s reasoned decision explains why Simmermaker’s complaint
fails to allege facts sufficient to state a claim. And Simmermaker does not point to
any facts alleged in his complaint that would undermine the district court’s
reasoning. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir.
2015) (“The first task of an appellant is to explain to us why the district court’s
decision was wrong.”). We affirm for substantially the reasons given by the district
court.
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III. Conclusion
We affirm the district court’s entry of final judgment. We grant
Simmermaker’s motion to proceed on appeal without prepayment of costs or fees.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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