Case 1:21-cv-00010-GPG Document 10 Filed 05/06/21 USDC Colorado Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

Civil Action No. 21-cv-00010-GPG

DZHOKHAR TSARNAEV,

Plaintiff,

v.

MERRICK GARLAND, Attorney General of the United States,

Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED PRISONER COMPLAINT

Plaintiff, Dzhokhar Tsarnaev, is in the custody of the Federal Bureau of Prisons

and is currently incarcerated at Florence ADMAX in Florence, Colorado. On April 12,

2021, Plaintiff submitted pro se an Amended Prisoner Complaint. (ECF No. 9). He has

paid the filing fee. (ECF No. 6).

The Court construes the Amended Prisoner Complaint liberally because Plaintiff

is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not

be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons

discussed below, Plaintiff will be directed to file an amended pleading if he wishes to

pursue his fifth and sixth claims.

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I. The Amended Prisoner Complaint

According to Plaintiff, in August 2013, he was placed under Special

Administrative Measures (“SAMs”) because of his proclivity for violence. (ECF No. 9 at

5). In the Amended Prisoner Complaint, Plaintiff asserts seven claims based on the

SAMs and the conditions of his confinement.

In claim one, Plaintiff asserts a First Amendment claim based on Defendants

Garland, BOP, and John Does 1-20 restricting his outgoing correspondence and familial

association. According to Plaintiff, in August 2019, the SAMs imposed against him were

modified to prohibit him from sending photographs. Plaintiff states that the new

restriction was imposed because Defendants Garland and John Does 1-20 falsely

alleged that Plaintiff attempted to send photographs of the prison yard to his sister in

April 2019. Plaintiff alleges that he did not “attempt” to send photographs to his sister

but rather successfully did send photographs to his sister with FBI approval. (ECF No. 9

at 10).

Claim two is also a First Amendment claim against Defendants Garland and John

Does 1-20 for restricting his correspondence. Plaintiff alleges that in August 2019, the

SAMs imposed against him were modified to prohibit him from sending any hobby crafts

or photographs via non-legal mail. On September 5, 2019, while he was unaware of the

modification, he successfully sent out correspondence, with FBI approval, which

included a hobby craft to a legal contact via non-legal/ social mail. On September 30,

2019, the SAMs were modified again to prohibit sending any hobby crafts or

photographs via legal mail as well. According to Plaintiff, his attempt to gift craft items

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to his legal team and other people affects the mitigation at any future sentencing

proceeding.

In claim three, Plaintiff asserts a First Amendment claim and Eighth Amendment

cruel and unusual punishment claim against Defendants Garland, BOP, and John Does

1-20 for restricting his correspondence and severing his familial associations.

According to Plaintiff, in August 2017, his SAMs were renewed. The renewed SAMs

allow him to have non-legal visits with his nieces and nephews, all of whom are young

children, but prohibits any telephone or mail correspondence with them. This prohibition

remains in place in the 2020 renewed SAMs.

For claim four, Plaintiff asserts a Fifth Amendment Due Process claim against

Defendants Garland and John Does 1-20. According to Plaintiff, in August 2020 the

SAMs were modified because of an incident report he received in April 2020 that

alleged that a face mask that he had been provided was missing the metal nose piece.

After a brief investigation, the charge in the Incident Report was dismissed when prison

officials determined the face mask he was given never contained a metal nose piece.

Thus, Plaintiff alleges that the inclusion of this incident as a reason to justify the SAMs

violates his due process rights.

Claim five is a Fourth Amendment claim against Defendants Carvajal,

Blanckensee, True and BOP for placing an administrative hold on over $2,300 of the

monetary funds in his trust fund account. Plaintiff alleges that as of March 1, 2021,

Defendants have placed a hold on the money in his account because the money was

sent to him by people not listed in his SAMs. According to Plaintiff, the SAMs restrict

his communications but do not specifically restrict him from receiving funds. In the past,

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Plaintiff alleges that no one treated funds deposited to his trust fund account as

“communications.” An order in the SAMs says the SAMs can be modified as long as

the modification does not make the SAMs more restrictive. He alleges the

encumbrance of his funds makes the SAMs more restrictive.

In claim six, Plaintiff asserts a Fourth Amendment seizure of property claim

against Defendant Tuttoilmondo. Plaintiff alleges that on July 10, 2019, he was issued

a confiscation and disposition of contraband form that listed two items of contraband: a

white baseball hat and a red bandana. Plaintiff alleges that he bought those items in

2015 from commissary and wore them for four years, with no problems, to ward off the

summer heat. After the items were confiscated, Defendant Tuttoilmondo came to

Plaintiff’s cell and told him that she confiscated the items because by wearing the hat,

he was disrespecting the FBI and the victims in his case. Plaintiff alleges that the

confiscation of these items violated prison policy, which states that items bought at the

commissary are not considered contraband.

Finally, in claim seven, Plaintiff asserts a Fifth Amendment due process violation

against Defendants BOP, True and John Does 1-20. According to Plaintiff, Defendants

are violating his due process rights by indefinitely confining him in in the most restrictive

phase of H-Unit at ADMAX, which subjects him to atypical conditions of confinement.

Plaintiff asserts that he has complied with all requirements to be moved to the next

phase at H-unit, which allows a few more privileges.

II. Analysis of Claims

Plaintiff’s fifth and sixth claims, asserted pursuant to the Fourth Amendment, are

deficient. Although Plaintiff asserts these claims pursuant to the Fourth Amendment,

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prisoners’ claims based on deprivation of property are properly analyzed as due

process claims.

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. “The first inquiry in every due process challenge is whether the plaintiff has

been deprived of a protected interest in property or liberty.” American Mfrs. Mut. Ins. Co.

v. Sullivan, 526 U.S. 40, 59 (1999) (internal quotation marks and citation omitted); Elliott

v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012). In the prison context, not all

deprivations of property are of constitutional magnitude. The Tenth Circuit has held that

a deprivation of property in prison does not implicate “due process protection unless it

imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.’” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006); see

also Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999); Clark v. Wilson, 625 F.3d

686, 691 (10th Cir. 2010) (noting that the “atypical and significant hardship” test in

Sandin applies to the freezing of a prison trust account).

Next, if the prisoner has been intentionally deprived of a protected property

interest, the inquiry turns to whether there is an adequate postdeprivation remedy

available for the loss. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that an

unauthorized intentional deprivation of property by a state employee does not violate

due process if an adequate postdeprivation remedy for the loss is available). The BOP

Administrative Remedy Program allows inmates to seek formal review of an issue

relating to any aspect of his or her confinement. See 28 C.F.R. §§ 542.10 through

542.19. Further, the BOP also has an administrative tort claims procedure whereby a

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federal inmate may file a claim with regard to his damaged or lost property. See 28

C.F.R. §§ 543.30 through 543.32. Plaintiff's Amended Prisoner Complaint does not

allege that these postdeprivation remedies were inadequate or unavailable to him.

In order to adequately allege a due process violation for his claims five and six,

Plaintiff must allege specific facts to show that the deprivation of his property posed an

“atypical and significant hardship” that subjected him to conditions much different from

those ordinarily experienced by inmates serving their sentences in the customary

fashion and that there were no adequate post-deprivation remedies available to him.

Plaintiff will be afforded an opportunity to file an Amended Prisoner Complaint if

he wishes to pursue his fifth and sixth claims. If he files an Amended Prisoner

Complaint, he must submit a complete prisoner complaint on the court-approved form

that includes all of his claims and supporting factual allegations. The Court will not

piece together separate pleadings to compile a complete prisoner complaint.

Accordingly, it is

ORDERED that Plaintiff shall file, within thirty (30) days of the date of this

Order, an Amended Prisoner Complaint on the current Court-approved form if he

wishes to pursue claims five and six. It is

FURTHER ORDERED that Plaintiff shall obtain and use the current, court-

approved Prisoner Complaint form (with the assistance of his case manager or the

facility’s legal assistant), which is available at www.cod.uscourts.gov. It is

FURTHER ORDERED that if Plaintiff fails to file an Amended Prisoner Complaint

within the time allowed, the Court may dismiss claims five and six without further notice.

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DATED May 6, 2021.

BY THE COURT:

Gordon P. Gallagher

United States Magistrate Judge