DUKA v. RULE et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DRITAN DUKA,
Plaintiff,
v.
WILLIAM MARSHALL,
Director, Federal Bureau of Prisons,
Defendant.
Civil Action No. 25-3111 (BAH)
Judge Beryl A. Howell
MEMORANDUM OPINION
Plaintiff Dritan Duka, an inmate housed in the Communication Management Unit
(“CMU”) at a Federal Correctional Institution (“FCI”), brings this suit against William Marshall,
in his official capacity as Director of the Federal Bureau of Prisons (“BOP”), challenging the denial
of plaintiff’s request to have an unmonitored telephone call with his attorney. Citing 28 C.F.R.
§ 540.204(b) as the basis for the denial, the FCI’s counsel explained that such calls are permitted
only when other means of communication are inadequate due to an urgent or impending deadline
in an active legal proceeding. Raising First and Fourteenth Amendment claims, plaintiff brings
facial and as-applied challenges to 28 C.F.R. § 540.204(b), and seeks prospective injunctive relief
in the form of “unmonitored calls with his attorneys at least once a month, with the possibility of
more frequent access if necessary in a particular situation.” 	Complaint (“Compl.”) (Relief
Requested), ECF No. 1. Defendant has moved to dismiss under Federal Rule of Civil Procedure
12(b)(1) for lack of standing, as well as Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. For the reasons discussed below, defendant’s motion is granted in part and denied
in part.
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I. 	BACKGROUND
Following a brief review of the legal framework governing monitoring of federal inmates’
communications in the context of this case, the factual and procedural history of this matter is
summarized.
A. 	Legal Framework
“In 2006 and 2008, respectively, the BOP established two CMUs in its facilities in Terre
Haute, Indiana and Marion, Illinois.” Aref v. Garland, No. 20-5368, 2022 WL 605726, at *1 (D.C.
Cir. Feb. 25, 2022). 	Housing “inmates who present security risks [and] require heightened
monitoring,” Aref v. Lynch, 833 F.3d 242, 247 (D.C. Cir. 2016), the CMUs were established “to
address a deficiency in the Department of Justice’s ability to monitor inmates with terrorism-
related convictions and their communications,” Garland, 2022 WL 605726, at *1.
The CMUs “provide an inmate housing unit environment that enables staff to more
effectively monitor communication between inmates in CMUs and persons in the community,” in
order “to ensure the safety, security, and orderly operation of correctional facilities, and protection
of the public.” 28 C.F.R. § 540.200. The CMUs are essentially “self-contained general population
housing unit[s]” where inmates “have access to common areas for up to sixteen hours a day,
recreational facilities, exercise equipment, and the library” and can “keep personal property in their
cells, participate in religious services, receive educational and professional training, and be
designated 	for 	work 	assignments.” 	Lynch, 	833 	F.3d 	at 	247 	(alteration 	in 	original).
Communications and contact between inmates in the CMUs and the outside world, however, “are
extremely limited and closely monitored.” Garland, 2022 WL 605726, at *1.
As relevant here, 28 C.F.R. § 540.204 imposes “[t]elephone communication limitations”
on CMU inmates, including communications between the inmate and the inmate’s attorney.
Specifically, 28 C.F.R. § 540.204(b) provides the following:
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Unmonitored telephone communication is limited to privileged communication with the
inmate’s attorney. Unmonitored privileged telephone communication with the inmate’s
attorney is permitted as necessary in furtherance of active litigation, after establishing that
communication with the verified attorney by confidential correspondence or visiting, or
monitored telephone use, is not adequate due to an urgent or impending deadline.
In the event an inmate is approved to make an unmonitored call to an attorney, BOP staff
are directed “to make reasonable efforts to verify unmonitored calls placed on an inmate’s behalf
are to an attorney’s office.” See Compl., Ex. D, Program Statement 5264.08, Inmate Telephone
Regulations (“Program Statement 5264.08”), ECF No. 1-4 at 3. Other than unmonitored telephone
calls, which uses are limited by 28 C.F.R. § 540.204(b), a CMU inmate may communicate with
his attorney via confidential mail, confidential in-person conferences, or monitored telephone
calls, see 28 C.F.R. §§ 540.203(c), 540.204(b).
B. 	Factual Background
On December 22, 2008, after a two-month jury trial, a jury sitting in the United States
District Court for the District of New Jersey convicted Dritan Duka and four co-defendants of
conspiracy to kill U.S. military members in an armed attack, and for violating various weapons
statutes. 	During the trial, the government had presented evidence suggesting that one or more
members of the conspiracy had conducted surveillance at several U.S. military bases, obtained a
detailed map of Fort Dix, performed firearms training at a shooting range in the Poconos, watched
and shared videos of violent jihadist activities and of lectures advocating violent jihad against non-
Muslims, and acquired automatic firearms and rocket-propelled grenades. 	See Duka v. United
States (“Duka II”), 27 F.4th 189, 191 (3d Cir. 2022); Duka v. United States (“Duka I”), No. 13-
cr-3664, 2015 WL 5768786, at *2 (D.N.J. Sept. 30, 2015). 	On April 28, 2009, Dritan Duka
received a life sentence. Duka I, 2015 WL 5768786, at *3. His co-defendants received similar
lengthy sentences. Id.
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“In the intervening years since their sentencing, [Dritan Duka and his co-defendants] have
launched several unsuccessful challenges to their convictions,” including “numerous challenges to
their convictions on direct appeal,” a 2013 federal habeas petition under 28 U.S.C. § 2255, a 2016
motion to vacate their 18 U.S.C. § 924(c) convictions, and a 2019 motion for relief from judgment
under Federal Rule of Civil Procedure 60(b)(6). See Duka II, 27 F.4th at 192. At each turn, Dritan
Duka’s challenges to his conviction have been rejected. Id.
Most recently, Dritan Duka, with the aid of counsel, filed a compassionate release motion
in the U.S. District Court for the District of New Jersey. See Def.’s Mot. Modification of Sentence
Based on Extraordinary and Compelling Reasons, United States v. Dritan Duka, No. 7-cr-459
(D.N.J. Oct. 17, 2025), ECF No. 57. During the preparation of the motion, disputes arose between
Dritan Duka’s counsel and prison officials over the permitted methods of attorney-client
communications, resulting in this instant, separate suit against the Director of BOP.
The specific facts, as alleged in the complaint, are as follows. See Casey v. McDonald’s
Corp., 880 F.3d 564, 567 (D.C. Cir. 2018) (“On a motion to dismiss, we must assume that the
allegations of the complaint are true.”). Dritan Duka is a federal prisoner in the BOP. At the time
he filed this action, Duka was a CMU inmate housed at the FCI in Terre Haute, Indiana. Complaint
(“Compl.”) ¶ 9, ECF No. 1. Plaintiff’s complaint does not challenge his placement into the CMU.
On June 26, 2024, Dritan Duka’s counsel emailed a BOP officer “request[ing] a legal call”
with Duka “in order to start preparing a compassionate release motion for him.” Id. The relevant
“Case Manager” at FCI Terre Haute responded the following day, “stating that the call would not
be approved because ‘only imminent, urgent matters with an active case are appropriate for legal
calls.’” Id. (citing Compl., Ex. A at 3, Jun. 27, 2024, Email from Bradley Kink, SCU/CMU Case
Manager, to Kathy Manley (“Kink Email”), ECF No. 1-1). “[C]ounsel for the prison,” in a separate
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email, “cit[ed] 28 CFR 540.204 in support of the denial of the call.” Id. (citing Pls.’ Compl., Ex.
A at 4, Jun. 27, 2024, Email from Adin Rogers, Attorney Advisor, to Kathy Manley (“Rogers
Email”), ECF No. 1-1).
Dritan Duka’s counsel represents that she “is in upstate New York” and cannot “feasibl[y]”
travel to Terre Haute for a legal visit. 	Id. ¶ 10. 	Counsel thus resorted to communicating with
defendant through “legal mail,” id. ¶ 11, and eventually filed a compassionate release motion for
Dritan Duka, which is currently pending before a different judge, Pl.’s Opp’n at 2. Counsel views
legal mail as “a very time consuming and inadequate way to communicate because there is no way
to have a real back-and-forth conversation,” and asserts that “[t]he denial of legal calls has been a
huge impediment to [her] work for [Dritan Duka] and [her] other clients, and has been detrimental
to [Dritan Duka]. Compl. ¶ 11. Dritan Duka, in a declaration filed with his complaint, attested
that he “wanted—and still wants—to have one or more legal calls with [his] attorney.” Compl.,
Ex. B, Decl. of Dritan Duka (“Duka Decl.”) ¶ 2, ECF No. 1-2.
C. 	Procedural Background
On May 7, 2025, after pursuing administrative remedies and receiving a final denial of
“[h]is Central Office Administrative Remedy Appeal,” id. ¶¶ 6, 12, plaintiff Dritan Duka filed the
instant complaint in the United States District Court for the Southern District of Indiana against T.
Rule, Warden of FCI Terre Haute, and William Marshall, Director of BOP. See Compl., ECF No.
1. Plaintiff’s complaint challenged BOP’s denial of his request for unmonitored telephone calls
with his attorney, in two claims, under the First and Fourteenth Amendments, id. ¶¶ 25-27 (“First
Claim: Violation of First Amendment”), ¶¶ 28-29 (“Second Claim: Violation of Fourteenth
Amendment”), and as relief sought, inter alia, “the ability to have unmonitored calls with his
attorneys at least once a month, with the possibility of more frequent access if necessary in a
particular situation,” id. (Relief Requested).
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Shortly after plaintiff filed his complaint, plaintiff was transferred from FCI Terre Haute
in Indiana to FCI Cumberland in Maryland, where is he currently housed, resulting in the dismissal
of former defendant, T. Rule, Warden of FCI Terre Haute, from the case. 	See Order Screening
Complaint, Dismissing Def. Rule, and Transferring Venue as to Remaining Claims, ECF No. 15.
On September 15, 2025, the case was transferred from the U.S. District Court for the Southern
District of Indiana to this district, “because that is where BOP Director Marshall resides,” “the
relevant actions and decisionmakers in this case were or are located in the District of Columbia,”
and the “District . . . has particularized expertise in the law governing federal administrative rules
and regulations.” Id. at 7-8.
On January 27, 2026, defendant moved to dismiss the Complaint in this Court, see Mot. to
Dismiss & Mem. Supp. Thereof (“Def.’s Mot.”), ECF No. 21, which motion is now ripe for
consideration, see Affirmation/Mem. of Law Opposing Dismissal (“Pl.’s Opp’n”), ECF No. 22;
Def.’s Reply Supp. Mot. to Dismiss (“Def.’s Reply”), ECF No. 23.
II. 	LEGAL STANDARDS
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), a plaintiff
must establish that the court has subject matter jurisdiction over the claims asserted. See Arpaio
v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). 	“Federal courts are courts of limited jurisdiction,
possessing only that power authorized by Constitution and statute.” 	Gunn v. Minton, 568 U.S.
251, 256 (2013) (internal quotation marks omitted). A court deciding a Rule 12(b)(1) motion must
accept as true all uncontroverted material factual allegations contained in the complaint and
“‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived
from the facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co.
v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
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(D.C. Cir. 2005)). Inferences unsupported by facts alleged in the complaint or amounting merely
to legal conclusions, however, need not be accepted. See Browning v. Clinton, 292 F.3d 235, 242
(D.C. Cir. 2002). Motions to dismiss for lack of standing arise under Rule 12(b)(1). See Food &
Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff need only plead “enough facts to
state a claim to relief that is plausible on its face” and to “nudge[] [his or her] claims across the
line from conceivable to plausible.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	A
claim is facially plausible when the plaintiff pleads factual content that “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). When considering a Rule 12(b)(6)
motion, a court must “accept the operative complaint’s well-pleaded factual allegations as true and
draw all reasonable inferences in the [plaintiff’s] favor.” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d
1244, 1249 (D.C. Cir. 2020). In considering a Rule 12(b)(6) motion, a court may also consider
“any documents either attached to or incorporated in the complaint and matters of which the court
may take judicial notice.” 	Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017)
(citation and alteration omitted). 	Factual disputes, however, generally cannot be resolved on a
motion to dismiss, as a court’s “role is not to speculate about which factual allegations are likely
to be proved after discovery.” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir.
2015).
III. 	DISCUSSION
Defendant’s motion to dismiss for lack of standing, under Rule 12(b)(1), is discussed first,
followed by defendant’s motion to dismiss for failure to state a claim under Rule 12(b)(6). 	As
explained below, defendant has standing to bring his claims and, with the exception of plaintiff’s
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Fourteenth Amendment claim, defendant’s arguments for dismissal for failure to state a claim are
not persuasive. Thus, defendant’s motion to dismiss is largely denied.
A. 	Federal Rule of Civil Procedure 12(b)(1)
As a threshold matter, defendant argues that plaintiff’s complaint must be dismissed for
lack of standing under Rule 12(b)(1). 	To establish standing, a plaintiff “must show (i) that he
suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury
was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial
relief.” 	TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). 	Defendant challenges only
plaintiff’s satisfaction of the injury-in-fact element of standing, arguing that plaintiff’s complaint
failed to demonstrate that “the alleged shortcomings in not being provided an unmonitored call
with an attorney outside of an active litigation hindered his efforts to pursue a legal claim.” Def.’s
Mot. at 6 (internal quotation marks and alteration omitted). Defendant’s argument is unpersuasive.
Plaintiff has established injury in fact. To make such a showing, plaintiff must allege that
he has “an invasion of a legally protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (citations omitted). Here, plaintiff alleges that he wished to speak with his attorney to
prepare his compassionate release motion, that he had requested and was denied an unmonitored
phone call with his attorney, and that “[t]he denial of legal calls has been a huge impediment to
[his attorney’s] work.” Compl. ¶¶ 9, 11. Further, although “a compassionate release motion was
eventually filed seeking Petitioner’s release (and is currently pending),” plaintiff’s counsel
represents that her “effort was hindered because it was not possible for [plaintiff] to have an
unmonitored call with counsel to discuss the preparation of said motion.” 	Pl.’s Opp’n at 2
(emphasis omitted). Plaintiff, in a declaration filed with his complaint, has also attested that he
“wanted—and still wants—to have one or more legal calls with [his] attorney.” Duka Decl. ¶ 2.
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Merely because the compassionate release motion was ultimately filed does not show a lack of
harm but only that the harm has already been suffered by plaintiff in efforts to overcome the
additional hurdles presented to communicate effectively with counsel and, further, continue to be
felt. These asserted harms are sufficiently concrete, particularized, and actual to establish a
cognizable injury in fact.
Defendant’s reliance on Lewis v. Casey, 518 U.S. 343 (1996), is puzzling since this
decision supports rather than undercuts plaintiff’s standing in this case. Lewis concerned a class
action brought by inmates of various prisons challenging the alleged inadequacies of their prisons’
library facilities and legal assistance programs. Lewis, 518 U.S. at 348. There, the Supreme Court
explained that the plaintiff-inmates cannot establish a legally cognizable injury merely by arguing
that the “prison’s law library or legal assistance program [was] subpar in some theoretical sense.”
Id. at 351. The Court reasoned that to demonstrate an actual injury, “the inmate . . . must go one
step further and demonstrate that the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim.” 	Id. 	Here, unlike the “theoretical” harm
discussed in Lewis, plaintiff has gone the requisite “one step further” by pursuing an actual legal
claim—his compassionate release motion—and alleging that the denial of legal calls and the
inability to have a “real back-and-forth conversation” with his attorney has hindered his efforts to
pursue that claim and continues to do so.1
Defendant’s motion to dismiss under Rule 12(b)(1) for lack of standing is therefore denied.
1 	Defendant also relies on Long v. Vaughan, 652 F. App’x 176 (4th Cir. 2016), see Def.’s Mot. at 7, but that
case was decided at summary judgment on the merits, not on standing grounds.
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B. 	Federal Rule of Civil Procedure 12(b)(6)
Defendant challenges both claims asserted in the Complaint for failure to state a claim,
under Rule 12(b)(6).2 	As to his First Amendment claim, plaintiff contends that 28 C.F.R.
§ 540.204(b), “as applied by the Defendants . . . violates the First Amendment which provides for
prisoners to have confidential consultations with attorneys.” Compl. ¶ 26. Defendant, in response,
argues that “[p]laintiff’s placement in the CMU, which he does not challenge, establishes that his
communications present security concerns, and that limitations on such communications are
‘reasonably related to [the] legitimate penological interests’ of prison security and resource
management.” Def.’s Mot. at 12 (quoting Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998)).
For the following reasons, defendant’s motion to dismiss plaintiff’s First Amendment claim under
Rule 12(b)(6) is denied.
“[L]awful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal system.”
Pell v. Procunier, 417 U.S. 817, 822 (1974) (citation omitted). In the First Amendment context,
prisons may regulate inmate speech so long as “the regulations are ‘reasonably related to legitimate
penological interests.’” Thornburgh v. Abbott, 490 U.S. 401, 405 (1989) (quoting Turner v. Safley,
482 U.S. 78, 89 (1987)). 	Determining whether a regulation is reasonably related to a legitimate
2 	Plaintiff asserts a Fourteenth Amendment due process claim in his complaint, alleging that 28 C.F.R.
§ 540.204(b), “as applied by the Defendants . . . violates the Fourteenth Amendment right of access to the courts.”
Compl. ¶ 29. Defendant correctly points out that the Fourteenth Amendment does not apply to the federal government,
see San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21 (1987) (“The Fourteenth
Amendment applies to actions by a State.”); see also Powers-Bunce v. D.C., 479 F. Supp. 2d 146, 153 (D.D.C. 2007)
(“The Due Process Clause of the Fourteenth Amendment reads in pertinent part: ‘No State shall . . . deprive any person
of life, liberty, or property without due process of law . . . .’ Thus, by its terms, the Fourteenth Amendment applies
only to the States; it does not apply to the Federal Government or the District of Columbia.”), and plaintiff offers no
response to this argument, see generally Pl.’s Opp’n (no mention of Fourteenth Amendment). Defendant’s argument
is thus treated as conceded, and defendant’s motion to dismiss plaintiff’s Fourteenth Amendment claim is accordingly
GRANTED. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to
a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments
as conceded.”).
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penological interest requires the application of a four-factor test: a court must ask (1) whether there
is “a valid, rational connection between the prison action and the legitimate government interest
put forward to justify it,” Turner, 482 U.S. at 89 (internal quotation marks omitted); (2) “whether
there are alternative means of exercising the right that remain open to prison inmates,” id. at 90;
(3) what “impact accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally,” id.; and (4) whether there is an
“absence of ready alternatives,” id. 	“[T]his ‘reasonable relation’ test [is] ‘very similar,’ if not
identical, to rational basis review.” Lynch, 833 F.3d at 259 (quoting Amatel v. Reno, 156 F.3d 192,
198-99 (D.C. Cir. 1998)). “In order to make this [four-factor] inquiry, [courts] need information.”
Shimer v. Washington, 100 F.3d 506, 509-10 (7th Cir. 1996). 	The prison administration must
proffer some evidence beyond “reflexive, rote assertions” to support its restriction of inmates’
constitutional rights. Id. at 510.
Accordingly, unless the justification for the policy is “self-evident,” see, e.g., Israel v.
Cohn, 6 F. App’x 348, 351 (7th Cir. 2001) (so holding regarding prison policy limiting inmate
phone calls to those on pre-approved lists), the question of whether a regulation is reasonably
related to a legitimate penological interest is often resolved at summary judgment or trial, rather
than at the pleading stage. 	See Lashbrook v. Hyatte, 758 F. App’x 539, 542 (7th Cir. 2019)
reversing dismissal of inmate’s First Amendment claim because, “at this prediscovery stage, there
is no evidentiary record from which the judge could evaluate the prison’s resource concerns, the
impact on prison staff of [the inmate’s] request for confidential attorney-client calls, or the viability
of other means of communicating with his attorney”); cf. Lynch, 833 F.3d at 259 (“[O]ur inferences
must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient
evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail
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at the summary judgment stage.” (citation omitted)). Indeed, defendant’s own cited cases largely
demonstrate as much. Def.’s Mot. at 11 (citing, e.g., Aref v. Holder, No. 10-cv-0539, 2015 WL
3749621, at *9 (D.D.C. Mar. 16, 2015) (deciding at summary judgment inmates’ constitutional
challenges to their CMU designation and the CMUs’ conditions); Searcy v. United States, 668 F.
Supp. 2d 113, 122 (D.D.C. 2009) (deciding at summary judgment inmate’s challenge to a BOP
policy “prohibiting an inmate from sharing his telephone access code with another inmate”); see
also, e.g., Turner, 482 U.S. at 89 (concerning a district court’s findings, after a bench trial, as to
the constitutionality of prison’s mail and marriage regulations)).3
Here, the justification for the challenged regulation under the Turner four-factor test is not
“self-evident,” Israel, 6 F. App’x at 351, and defendant has provided no illumination into the
restriction on legal calls for CMU inmates besides generalized assertions of “security concerns,”
Def.’s Mot. at 12. 	With respect to relevant exhibits, all that has been provided are defendant’s
citation to and application of 28 C.F.R. § 540.204, without further explanation as to the purpose
of the policy. 	See Compl., Ex. A, Kink Email; id., Ex. A, Rogers Email; id., Ex. D, Program
Statement 5264.08. On this record, the Court is thus “reduced to speculation when not provided
with evidence, and, having speculated, find[s] it difficult to establish a connection between the
prison administration’s unsubstantiated justifications and its policy.” Shimer, 100 F.3d at 510.
Defendant further argues that dismissal should be granted because plaintiff has adequate
alternative means of communicating with his attorney—namely, through confidential in-person
visits and legal mail, and monitored telephone calls. On a motion to dismiss, however, any factual
disputes generally must be resolved in favor of plaintiff, who is granted the benefit of all inferences
3 	Defendant also cites several decisions in procedural postures not applicable here. See, e.g., Washington v.
Reno, 35 F.3d 1093 (6th Cir.1994) (preliminary injunction); Aswegan v. Henry, 981 F.2d 313 (8th Cir.1992)
(preliminary injunction); Akers v. Sproul, No. 22-cv-2192, 2023 WL 2814864 (S.D. Ill. Apr. 6, 2023) (a show cause
motion filed in relation to a habeas petition).
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that can be derived from the facts alleged. See Am. Nat’l Ins. Co., 642 F.3d at 1139. Here, plaintiff
asserts that in-person visits are economically infeasible for his attorney, legal mail is too time
consuming, and monitored phone calls do not provide plaintiff the “free[dom] to discuss aspects
of his case and his prison conditions.” Compl. ¶¶ 10-11. Given the disputed facts, a determination
as to the adequacy of alternative means of communication at the pleading stage would be
premature.
To be clear, no view is provided on the ultimate merits of plaintiff’s claim. 	Rather, the
defendant’s motion to dismiss under Rule 12(b)(6) is denied because, at this early stage in the
proceedings, plaintiff’s complaint states a First Amendment claim that is “plausible on its face.”
Twombly, 550 U.S. at 570.
IV. 	CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss the complaint, ECF No. 21, is
DENIED with respect to the motion to dismiss under Rule 12(b)(1) for lack of standing and under
Rule 12(b)(6) for failure to state a claim under the First Amendment, but GRANTED with respect
to the motion to dismiss under Rule 12(b)(6) for failure to state a claim under the Fourteenth
Amendment. 	An 	order 	consistent 	with 	this 	Memorandum 	Opinion 	will 	be 	entered
contemporaneously.
Date: April 3, 2026
__________________________
BERYL A. HOWELL
United States District Judge
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