Petition for Writ of Certiorari — Lisa A. Biron, Petitioner v. Colette S. Peters, Director, Federal Bureau of Prisons, et al.

Supreme Court briefSep 22, 2022

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

Lisa A. Biron,

Petitioner

Colette Peters, FCI Waseca Warden Michael Segal,

and Deanna Hiller,

Respondents

PETITION FOR A WRIT OF CERTIORARI

THE EIGHTH CIRCUIT COURT OF APPEALS

APPENDIX TO PETITION

Lisa A. Biron (Reg. # 12775-049)

Federal Correctional Institution

P.O. Box 1731

Waseca, MN 56093

JUDGMENT OF THE EIGHTH CIRCUIT (6/24/22)

APP'X

A /

Uniteia States Court of appeals

jfor tlje Cigfjtf) Circuit

No. 21-3615

Lisa A. Biron

Plaintiff - Appellant

Michael D. Carvajal, Director Federal Bureau of Prisons. sued in

l"'

caDacitv' FCI Waseca Warden Mistelle Starr, sued in their official capacity

Deanna Hiller, FCI Waseca Unit Manager; sued in her individual and official capacities

Defendants - Appellees

Appeal from United States District Court

for the District of Minnesota

Submitted: June 21, 2022

Filed: June 24, 2022

[Unpublished]

Before GRUENDER, BENTON, and STRAS, Circuit Judges.

PER CURIAM.

Federal inmate Lisa Biron appeals the district court’s1 dismissal of her pro se

complaint raising claims that Bureau of Prisons (BOP) officials denied her access to

the courts, and violated the Administrative Procedures Act by failing to follow BOP

regulations. Following a careful review, we conclude that the district court did not

err in dismissing the case. See Plymouth Cty. v. Merscorp, Inc., 11A F.3d 1155,1158

(8th Cir. 2014) (reviewing dimissal de novo). Accordingly, we affirm. See 8th Cir.

R. 47B.

The Honorable Wilhelmina M. Wright, United States District Judge for the

District of Minnesota, adopting the report and recommendations of the Honorable

Elizabeth Cowan Wright, United States Magistrate Judge for the District of

Minnesota.

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No. 20-cv-2110 (WMW/ECW)

Lisa A. Biron,

Plaintiff,

ORDER

Michael Carvajal et al.,

Defendants.

This matter is before the Court on the July 20, 2021 Report and Recommendation

(R&R) of United States Magistrate Judge Elizabeth Cowan Wright. (Dkt. 76.) The R&R

recommends denying Plaintiff Lisa A. Biron’s motion for preliminary injunctive relief,

granting Defendants’ motion to dismiss, and dismissing Biron’s amended complaint

without prejudice. Biron filed objections to the R&R. For the reasons addressed below,

, Biron’s objections are overruled, the R&R is adopted, Biron’s motion for preliminary

injunctive relief is denied, and the amended complaint is dismissed without prejudice.

BACKGROUND1

Biron is an inmate at the Federal Correctional Institution in Waseca, Minnesota

(FCI-Waseca). Defendants are three employees of the Federal Bureau of Prisons (BOP).

Specifically, Defendant Michael Carvajal is the Director of the BOP, Defendant Mistelle

As the R&R provides a detailed factual and procedural history, the Court only

briefly summarizes the background of this litigation and the facts relevant to the pending

objections to the R&R.

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Starr is the Warden of FCI-Waseca, and Defendant Deanna Hiller is the Unit Manager of

Biron’s unit at FCI-Waseca.

Before her incarceration, Biron was licensed to practice law in New Hampshire

and Massachusetts. During her incarceration, Biron has litigated numerous cases in this

District and in other courts on her own behalf, including challenges to her criminal

conviction, civil lawsuits against prison officials, and family law and attorney discipline

matters. In this lawsuit, Biron alleges that Defendants have interfered with her ability to

litigate her other lawsuits in several ways.

According to Biron, beginning in July 2019, Defendants have refused to deliver

her mail. Biron alleges that FCI-Waseca’s mail-handling procedures have “resulted in

important mail from legal associations and others being returned to the senders unopened,”

and “[i]mportant legal information relevant to [Biron’s] active litigation was not

delivered to [Biron].” Defendants’ handling of Biron’s mail allegedly has prejudiced her

ability to litigate her various lawsuits.

Biron also alleges that she has inadequate access to law library resources. Inmates

at FCI-Waseca have access to an electronic database called the Electronic Law Library

(ELL). The computers from which inmates can access the ELL, as well as typewriters

for inmate use, are in the recreation building at FCI-Waseca. According to Biron, the

legal resources in the ELL are updated “only four (4) times per year prejudicing [Biron’s]

ability, to litigate her active civil cases and criminal cases.” Although the ELL includes

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legal resources pertaining to federal law, the ELL does not include state-law materials.

Biron alleges that the ELL’s lack of state-law resources also has prejudiced her.

After the COVID-19 pandemic began in early 2020, FCI-Waseca began imposing

restrictions on inmate movement, including inmate access to the ELL computers and

typewriters. According to Biron, Defendants denied or limited Biron’s requested access

to the ELL and typewriter on several occasions between May 2020 and September 2020.

Biron alleges that these restrictions hindered her ability to draft documents for use in her

other lawsuits and prevented her from effectively litigating those lawsuits.

Biron commenced this action against Defendants in September 2020, and

Defendants removed the case to this Court on October 5, 2020. Biron filed an amended

complaint on October 14, 2020. In the amended complaint, Biron alleges that Defendants

(1) denied Biron meaningful access to the prison law library and its resources, (2) failed

to provide adequate legal resources in the prison law library, and (3) failed to deliver

Biron’s mail containing legal information. According to Biron, these actions interfered

with Biron’s access to the courts, in violation of her rights protected by the First

Amendment and the Fourteenth Amendment of the United States Constitution. Biron

also alleges that Defendants’ actions contravene the BOP’s “established regulations,” in

violation of the Administrative Procedure Act (APA).

On November 16, 2020, Biron moved for preliminary injunctive relief

February 8, 2021, Defendants moved to dismiss Biron’s amended complaint or, in the

alternative, for summaiy judgment. In a July 20, 2021 R&R, the magistrate judge

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recommends dismissing Biron’s access-to-courts and APA claims for failure to state a

claim on which relief can be granted.2 See Fed. R. Civ. P. 12(b)(6). The magistrate

judge also recommends denying Biron’s motion for preliminary injunctive relief. Biron

filed objections to the R&R, which are limited to challenging the R&R’s

recommendation to dismiss her claims.

ANALYSIS

A district court reviews de novo those portions of the R&R to which specific

objections are made. 28 U.S.C. § 636(b)(1)(C). In doing so, a district court “may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” Id. \ accord 7ed. R. Civ. P. 72(b)(3); LR 72.2(b)(3).

Biron objects to the R&R’s recommendation to dismiss her access-to-courts and

APA claims. If a complaint fails to state a claim on which relief can be granted,

dismissal is warranted. See Fed. R. Civ. P. 12(b)(6). When determining whether a

complaint states a facially plausible claim, a district court accepts the factual allegations

in the complaint as true and draws all reasonable inferences in the plaintiff’s favor.

Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). Factual allegations

must be sufficient to “raise a right to relief above the speculative level” and “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007). Legal conclusions couched as factual allegations may be disregarded. See

In the alternative, the magistrate judge recommends granting summary judgment

to Defendants. For the reasons addressed below, the Court need not reach this alternative

analysis.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a pro se plaintiffs complaint must

be construed liberally, the complaint must allege sufficient facts to support the plaintiff s

claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). On a motion to dismiss, a

district court may consider the complaint, exhibits attached to the complaint, documents

that are necessarily embraced by the complaint, and relevant public records without

converting the motion into one for summary judgment. Stahl v. U.S. Dep’t ofAgric., 327

F.3d 697, 700 (8th Cir. 2003); Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th

Cir. 2003). The Court addresses each of Biron’s claims in turn.

Biron’s Access-to-Courts Claim

Biron first objects to the R&R’s recommendation to dismiss her access-to-courts

claim. The R&R recommends dismissing this claim because Biron has not plausibly

alleged that Defendants’ conduct caused an actual injury to her.

An inmate’s constitutional right of access to the courts includes access to

“adequate law libraries or adequate assistance from persons trained in the law.” Bounds v.

Smith, 430 U.S. 817, 828 (1977). However, this is not “an abstract, freestanding right to

a law library or legal assistance, [and] an inmate cannot establish relevant actual injury

simply by establishing that his prison’s law library or legal assistance program is subpar

in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Prison authorities

are not obligated to provide inmates with every possible means of legal assistance for

every conceivable civil claim an inmate seeks to advance. Kelsey v. Minnesota, 622 F.2d

956, 958 8c n.2 (8th Cir. 1980).

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When alleging that her meaningful access to the courts has been denied, an inmate

must allege that prison officials caused an “actual injury,” namely, that a “nonfhvolous

and arguably meritorious underlying legal claim” was frustrated or impeded. White v.

Kautzky, 494 F.3d 677, 680 (8th Cir. 2007). Alleging a theoretical inadequacy is not

sufficient. Lewis, 518 U.S. at 351. Rather, an inmate must show a causal connection

between a library inadequacy and an actual injury. See Entzi v. Redmann, 485 F.3d 998,

1005 (8th Cir. 2007). Absent an explanation demonstrating how the alleged library

inadequacy either prevented the inmate from filing an arguably meritorious legal claim or

caused an arguably meritorious claim to be dismissed as deficient, the inmate’s “alleged

injuries are merely speculative.” Hartsfield v. Nichols, 511 F.3d 826, 833 (8th Cir.

2008).

Biron alleges that Defendants impeded her ability to access the courts in three

ways: (1) failing to deliver Biron’s legal mail, (2) providing inadequate and incomplete

law library resources, and (3) restricting Biron’s access to the ELL and typewriter during

the COVID-19 pandemic. Notably, although Biron has been involved in numerous

lawsuits during her incarceration, including family law and attorney discipline matters,

her right of access to the courts does not apply to lawsuits unrelated to her conviction,

sentence, or conditions of confinement:

The tools [the constitution] requires to be provided are those

that the inmates need in order to attack their sentences,

directly or collaterally, and in order to challenge the

conditions of their confinement. Impairment of any other

litigating capacity is simply one of the incidental (and

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perfectly constitutional) consequences of conviction and

incarceration.

Lewis, 518 U.S, at 355. Accordingly, to state an access-to-courts claim, Biron must

plausibly allege that Defendants’ conduct actually impeded her ability to assert a

“nonfrivolous and arguably meritorious underlying legal claim” challenging her criminal

conviction, sentence, or conditions of confinement. White, 494 F.3d at 680.

The only such allegations in Biron’s amended complaint pertain to Case No.

19-cv-2938, in which United States District Judge Susan Richard Nelson dismissed

Biron’s claim that three BOP officials had violated Biron’s constitutional rights. See

Biron v. Carvajal (Biron I), No. 19-CV-2938-SRN-LEB, 2020 WL 5812970 (D. Minn.

Sept. 30, 2020).3 In the instant case, Biron does not allege any facts suggesting that

Defendants’ mail-delivery procedures impacted her ability to litigate Biron I in any way.4

Nor does Biron allege any specific facts suggesting that the lack of state-law resources in

FCI-Waseca’s law library affected her ability to litigate Biron /, which involved a

federal-law claim.5 Instead, the only alleged nexus between Defendants’ conduct and

In her objections to the R&R, Biron improperly attempts to supplement the

allegations in her amended complaint with additional factual details about other lawsuits.

But the Court limits its motion-to-dismiss analysis to the allegations in the amended

complaint and public records necessarily embraced by the amended complaint.

Indeed, the amended complaint does not allege any details about the legal mail

that Defendants failed to deliver, let alone what lawsuit these undelivered mailings

pertained to or what injury Biron suffered as a result of any undelivered mail.

The amended complaint alleges that “many federal convictions and sentences are

based on prior state convictions, and without access to the relevant state’s law,

postconviction petitions cannot be filed.” An access-to-courts claim must be based on an

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Biron’s ability to litigate Biron I pertains to whether Defendants’ restrictions on Biron’s

access to the ELL and typewriter actually impeded Biron’s ability to assert meritorious

legal claims in Biron I. In this regard, the amended complaint specifically alleges that,

because Biron “did not have access to the law library or typewriter, she failed to follow

local and federal court rules, and because of this her motion for leave to amend her

complaint [in Biron i] was denied.”

As the R&R correctly observes, the public records in Biron I belie Biron’s

allegation that Defendants’ restrictions on her access to the FCI-Waseca law library and

typewriter caused the denial of her motion to amend her complaint in Biron I. In Biron I,

the district court denied Biron’s motion to amend her complaint because she failed to

comply with multiple procedural rules.6 2020 WL 5812970, at *4—5. But even assuming

that FCI-Waseca’s law library did not include access to those procedural rules, the

relevant rules were provided to Biron by the defendants in Biron I when they opposed her

motion to amend the complaint, quoted the rules, and described the procedural defects in

Biron’s motion.

In her pending objections to the R&R, Biron concedes that “the

defendants [in Biron I\ informed her of those [rules] in their Opposition to her Motion for

actual injury, not general speculation that the prison’s resources will be “subpar in some

theoretical sense.” Lewis, 518 U.S. at 351. Biron’s vague allegations about state-law

research she wanted to pursue are insufficient to establish an access-to-courts claim.

Notably, the fact that Biron’s filings in Biron I were handwritten rather than typed

not

a basis for denying her motion to amend the complaint. As such, any limitations

was

on Biron’s access to a typewriter at FCI-Waseca did not impede Biron’s ability to either

correct the procedural defects in her motion to amend the complaint or otherwise litigate

an arguably meritorious legal claim in Biron I.

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Leave to Amend.”

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Despite this knowledge, Biron did not attempt to correct the

procedural defects in her motion until three months later, nor did she seek an extension of

time to do so. As the district court in Biron I observed:

Her handwritten filings are very legible, well-organized, and

cite appropriate legal authority. Had she sought additional

time or a stay of proceedings due to limited access to the law

library and typewriters, she was certainly able to seek such

relief.

Id. at *4. Biron neither sought an extension of time to correct the procedural defects in

her motion to amend her complaint, nor sought reconsideration of the district court’s

subsequent denial of her motion. As such, the Court agrees with the R&R’s conclusion

that Biron’s litigation strategy, not the limitations on her access to the prison law library

and typewriter, resulted in the denial of her motion to amend her complaint in Biron I.

In her objections to the R&R, Biron argues that she “needed more than access to

just the court rules to properly prepare the proposed amended complaint” in Biron I.

Biron contends that she “wanted to research the law concerning the new claims she was

contemplating.” This argument is unavailing for at least four reasons. First, the amended

complaint in this case does not allege that'Defendants impeded Biron’s ability to research

substantive legal claims in Biron I. Instead, the amended complaint alleges only that

Defendants caused Biron to “fail[ ] to follow local and federal court rules.” Second,

Biron has neither identified what “new claims she was contemplating” asserting in Biron

I nor established that those claims would be nonfrivolous and arguably meritorious. See

Lewis, 518 U.S. at 351 (recognizing that an access-to-courts claim cannot be based on a

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general speculative assertion that the prison’s legal resources are “subpar in some

theoretical sense”). Third, even if Biron had additional meritorious claims to assert in

Biron I, it is undisputed that Biron never sought an extension of time to amend her

complaint in that case. Fourth, because the district court dismissed Biron I without

prejudice, Biron retains the ability to advance arguably meritorious legal claims in the

future.

For these reasons, Biron has not stated an access-to-courts claim because she has

not plausibly alleged that Defendants’ conduct caused an “actual injury” by frustrating or

impeding her ability to advance a “nonfrivolous and arguably meritorious underlying

legal claim.” White, 494 F.3d at 680. Accordingly, Biron’s objections to this aspect of

the R&R are overruled.

Biron’s Administrative Procedure Act (APA) Claim

Biron also objects to the R&R’s recommendation to dismiss her APA claim, in

which Biron alleges that Defendants’ actions violate the BOP’s “established regulations.”

Although the amended complaint does not clearly identify the legal basis for Biron’s

APA claim, Biron has asserted in subsequent filings that she is advancing an “Accardi

claim.” The R&R construes Biron’s amended complaint liberally as asserting a claim

under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The R&R

recommends dismissing this claim because Biron has not plausibly alleged that

Defendants violated BOP regulations or that Biron sustained an injury as a result.

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“Regulations with the force and effect of law supplement the bare bones” of

federal statutes, and federal agencies must follow their own “existing valid regulations.”

Accardi, 347 U.S. at 265, 268; accord Damus v. Nielsen, 313 F. Supp. 3d 317, 335-36

(D.D.C. 2018). The “Accardi doctrine bars administrative agencies from taking action

inconsistent with their internal regulations when it would affect individual rights.”

United States v. Lee, 21A F.3d 485, 492 (8th Cir. 2001).

In the amended complaint, Biron alleges that Defendants have violated the BOP’s

“established regulations,” and she quotes several BOP regulations. But the amended

complaint does not clearly identify which regulations Defendants have violated. The

regulations Biron cites involve the BOP’s discretionary responsibilities to, among other

things, “afford[ ] an inmate reasonable access to legal materials” and a “reasonable

opportunity to prepare legal documents” and to “allow preparation of documents in living

quarters” when doing so is “practical.” None of the BOP regulations quoted in the

amended complaint guarantees inmates a particular manner or length of access to legal

resources, typewriters, or other tools. As such, the amended complaint does not plausibly

allege that Defendants’ actions violated any particular BOP regulation in any particular

manner.7

Moreover, even if the amended complaint plausibly alleged that Defendants

violated a particular BOP regulation, Biron also must allege that the violation affected

In her objections to the R&R, Biron improperly attempts to supplement the

allegations in her amended complaint with additional factual details. The Court must

disregard facts that have not been alleged in the operative pleading.

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Biron’s individual rights. Lee, 274 F.3d at 492.

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Significantly, “there is no federal

constitutional liberty interest in having ... prison officials follow prison regulations.”

Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003); accord Bonner v. Fed. Bureau of

Prisons, 196 F. App’x 447, 448 (8th Cir. 2006) (observing that “a violation of prison

regulations in itself does not give rise to a constitutional violation”). Although Biron has

a right of access to the courts, Biron has not plausibly alleged a violation of that right, for

the reasons addressed in Part I of this Order.

Accordingly, Biron’s objections to this aspect of the R&R are overruled.

HI.

Clear-Error Review

Because no party specifically objects to any other aspect of the R&R, the Court

reviews the remainder of the R&R for clear error. See Grinder v. Gammon, 73 F.3d 793,

795 (8th Cir. 1996) (per curiam); see also Fed. R. Civ. P. 72(b) advisory committee’s

note (“When no timely objection is filed, the court need only satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation.”). Having

carefully performed this review, the Court finds no clear error. For this reason, the Court

adopts the R&R in full.

ORDER

Based on the R&R, foregoing analysis and all the files, records and proceedings

herein, IT IS HEREBY ORDERED.

Plaintiff Lisa A. Biron’s objections to the July 20, 2021 R&R, (Dkt. 79),

are OVERRULED;

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The July 20, 2021 R&R, (Dkt. 76), is ADOPTED;

Plaintiff Lisa A. Biron’s motion for preliminary injunctive relief, (Dkt. 22),

is DENIED;

Defendants’ motion to dismiss, (Dkt. 52), is GRANTED; and

The amended complaint, (Dkt. 5), is DISMISSED WITHOUT

PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

s/Wilhelmina M. Wright

Wilhelmina M. Wright

United States District Judge

Dated: September 16, 2021

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No. 20-cv-2110 (WMW/ECW)

Lisa A. Biron,

Plaintiff,

ORDER&

REPORT AND RECOMMENDATION

Michael Carvajal, Director Federal

Bureau of Prisons, sued in their official

capacity, FCI Waseca Warden Mistelle

Starr, sued in their official capacity, and

Deanna Hiller, FCI Waseca Unit

Manager; sued in her individual and

official capacities,

Defendants.

This matter is before the Court on the United States’ Motion to Screen and Stay

Proceedings (Dkt. 7) (“Motion to Screen and Stay”), Plaintiffs Request for Expedited

Preliminary Injunctive Relief (Dkt. 22) (“Motion for Preliminary Injunction”), Plaintiffs

Motion for Leave to Supplement Motion for Preliminary Injunction (Dkt. 31), Plaintiff s

Motion for Leave to File Sur-Reply (Dkt. 41), and Defendants’ Motion to Dismiss or for

Summary Judgment (Dkt. 52) (“Motion to Dismiss”). The case has been referred to the

undersigned United States Magistrate Judge for a report and recommendation pursuant to

28 U.S.C. § 636 and Local Rule 72.1. For the reasons stated below, the Court

(1) recommends granting the Motion to Dismiss (Dkt. 52) and denying the Motion for

Preliminary Injunction (Dkt. 22); (2) denies the Motion to Screen and Stay (Dkt. 7),

(3) grants Plaintiffs Motion for Leave to Supplement Motion for Preliminary Injunction

(Dkt. 31); and (4) grants Plaintiffs Motion for Leave to File Sur-Reply (Dkt. 41).

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FACTUAL AND PROCEDURAL BACKGROUND

The Parties

Plaintiff Lisa Biron (“Plaintiff’ or “Biron”) was sentenced in 2013 to serve a 480-

month term of imprisonment to be followed by a lifetime term of supervised release and

is now incarcerated at the Federal Correctional Institution in Waseca, Minnesota (“FCIWaseca”). Biron v. Sawyer, No. 19-CV-2938 (SRN/LIB), Dkt. 67 at 3 (D. Minn. Aug.

21, 2020), R.&R. adopted, Dkt. 75 (D. Minn. Sept. 30, 2020).2 (Dkt. 5

2, 8.) Biron

was formerly licensed to practice law in New Hampshire and Massachusetts. Biron v.

Sawyer, No. 19-CV-2938 (SRN/LIB), Dkt. 75 at 10.

Defendants are officials and employees of the Federal Bureau of Prisons (“BOP”);

Michael Carvajal is the Director of the BOP; Mistelle Starr is the Warden of FCIWaseca; and Deanna Hiller is the Unit Manager of Biron’s unit at FCI-Waseca. (Dkt. 5

3-5; Dkt. 55 at 2.)3 Carvajal and Starr are sued in their official capacities, and Hiller is

sued in her individual and official capacities. (Dkt. 5 fflj 6-7.)

The Court does not rely on all of these facts in recommending dismissal under

Rule 12(b)(6), but it recites them in view of Biron’s Motion for Preliminary Injunction

and Defendants’ Motion to Screen and Stay, because Defendants moved for summary

judgment as an alternative to moving under Rule 12(b)(6), and simply to provide context.

Order and Report and Recommendation available at 2020 WL 6121270; Order

Adopting Order and Report and Recommendation available at 2020 WL 5812970.

Unless otherwise noted, all page numbers refer to the CM/ECF pagination.

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Biron’s Complaint and Amended Complaint

This case came to Federal court when Defendants removed Biron’s state-court

complaint, which Defendants stated had been served but not filed, on October 5, 2020.4

(Dkt. 1 Tfl{ 1-2.) Briefly, Biron alleged in the Complaint that restrictions on access to a

law library and typewriter imposed by Defendants due to the COVID-19 pandemic and

denial of a specific request for access to a law library and typewriter in May 2020

resulted in denial of a motion for leave to amend filed in Biron v. Sawyer, No: 19-CV2938 (SRN/LIB) (hereinafter “Biron v. Sawyer”). (Dkt. 1-2

12-24.)

After this case was removed to this Court on October 5, 2020 (Dkt. 1), Biron filed5

the Amended Complaint on October 14,2020 (Dkt. 5). In the Amended Complaint,

Biron first claims that each Defendant’s failure to “allow” or “ensure Plaintiff

meaningful, adequate, or reasonable access to the law library and typewriter interferes

with Plaintiffs access to the court and prejudices Plaintiffs litigation in violation of the

First Amendment to the U.S. Constitution.” (Dkt. 5

40-42.) Second, Biron claims that

Carvajal’s and Starr’s failure to timely update the Electronic Law Library and to provide

state law resources “interferes with Plaintiff s access to the court and prejudices her

litigation in violation of the First Amendment.” (Id. Tflj 43-44.) Third, Biron claims that

Carvajal’s and Starr’s failure to deliver her mail “because of the appearance of the

exterior ... and which contained legal information, interfered with Plaintiff s access to

Defendants filed the Complaint in Waseca County District Court for purposes of

accomplishing removal. (Dkt. 1 Tf 1.)

For convenience, in this Section and Section I.F, the Court refers to the dates

Biron’s filings were docketed, though each was mailed some days before docketing.

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the court and prejudices her litigation in violation of the First Amendment and due

process clause of the U.S. Constitution.” (Id. f 45.) Fourth, Biron claims that the BOP’s

“Central Office’s response condoning Defendants’” (1) “failure to provide reasonable

access to an adequate law library and typewriter,” (2) “failure to open and inspect all

general correspondence,” and (3) “return of unopened mail to the post office because of

the exterior appearance of the envelope” constitutes final agency action, pursuant to 5

U.S.C. § 704, and violates the BOP’s “established regulations.” (Id.

46-50; see also

33-37 (citing C.F.R. sections).) Biron seeks declaratory and injunctive relief and

damages. (Id.

51-62.)

Biron’s Lawsuits

Biron is or has been involved in several court cases, some of which will be

described in more detail in Section I.D. These cases include, several active pro se

appellate cases concerning her criminal conviction pending at the First Circuit Court of

Appeals”; “a civil action pending against various FCI Waseca officials, including

Defendant Hiller, in this Court (no. 19-cv-2938)”; and “family law litigation, and

attorney discipline matters in New Hampshire and Massachusetts state courts.

(Dkt. 5

9-12.) In addition to Biron v. Sawyer and the present case, Biron has brought claims

against federal employees or officials in two additional cases that were litigated in this

District: Biron v. Hurwitz, No. 19-cv-57 (SRN/LIB) (D. Minn, filed Jan. 9, 2019), and

Biron v. Barnes, No. 19-cv-898 (SRN/LIB) (D. Minn, filed Apr. 1, 2019).

In Biron v. Hurwitz, Biron v. Sawyer, and the present case, Biron captioned the

complaints as state court suits in Waseca County, Minnesota. No. 19-cv-57 (SRN/LIB),

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Dkt. 1-2 (D. Minn. Jan. 9, 2019); No. 19-cv-2938 (SRN/LIB), Dkt. 1-2 (D. Minn. Nov.

20, 2019). (Dkt. 1-2, Ex. B (original Complaint); see also Dkt. 21

10, 15, 19; Dkt. 20,

Ex. A (copy of first page of complaint in Biron v. Hurwitz).) According to Defendants,

Biron served but did not file her state-court complaints, which allowed her to avoid

paying a civil filing fee.6 (Dkt. 8 at 2, 6 (citations omitted); Dkt. 55 at 4 (citations

omitted).) Defendants assert that avoiding paying a filing fee was the purpose of serving

unfiled complaints. (Dkt. 8 at 2, 6.) In support of this assertion, Defendants cite an

email7 Biron sent to FCI-Waseca officials on April 10,2020, responding to their denial of

her request for email access to communicate with family and stating, I guess I will just

keep filing law suits [sic] until the BOP gets sick of them. I have figured out a way to

bypass the [Prison Litigation Reform Act of 1995 ( PLRA )] restrictions and the filing

fees. I am considering showing other inmates how to do this, too.” (Dkt. 10-1, Ex. A.)

Biron, however, states that she mailed each complaint for filing in Waseca County court,

but each was returned to her by the Waseca County Court Administrator due to lack of

jurisdiction or proper venue. (Dkt. 21

10, 15-16, 19-20 (citing Dkt. 20-1, Ex. B

(Waseca County Court Administrator letter for Biron v. Hurwitz)-, Dkt. 20-2, Ex. C

(Waseca County Court Administrator letter for Biron v. Sawyer); and Dkt. 20-3, Ex. D

In Minnesota state court, a civil action is commenced when the summons and

complaint are served on the defendant. See Minn. R. Civ. P. 3.01. In Federal court, a

civil action is commenced by filing a complaint with the court. Fed. R. Civ. P. 3.

The parties appear to use the term “email” at times to refer to the electronic

messages inmates at FCI-Waseca are able to send to and receive from FCI-Waseca staff

and the public. (See, e.g., Dkt. 5 125; Dkt. 56 If 12.) The Court also uses these terms

interchangeably in the context of this Order and Report and Recommendation.

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(Waseca County Court Administrator letter for the present case)).) Biron states that in

each case, she attempted to file the complaint in state court because [she is] indigent and

under Minnesota law could seek [in forma pauperis (“IFP”)] status and qualify for a

waiver of the filing fee,” and that she “was fully prepared to litigate” in state court, but

the defendants removed each case to federal court. (Id.

12-13, 17-18, 21-22.)

Defendants removed each of these three cases to Federal court in this District. Biron v.

Hurwitz, No. 19-cv-57 (SRN/LIB), Dkt. 1 (D. Minn. Jan. 9, 2019); Biron v. Sawyer, Dkt.

1 (D. Minn. Nov. 20, 2019). (Dkt. 1 (Oct. 5, 2020).)8

As will be described further, many of Biron’s allegations and claims in this case

relate to the proceedings in Biron v. Sawyer. As background, Biron claimed in Biron v.

Sawyer that the BOP and FCI-Waseca were prohibiting her from having contact with her

daughter in violation of the Constitution and sought injunctive relief requiring them “to

stop interfering” with Biron and her daughter’s right to communicate with each other.

Biron v. Sawyer, Dkt. 1-2 (Nov. 20, 2019). The following events relevant to this action

occurred in Biron v. Sawyer after it was removed to Federal court on November 20, 2019.

Biron filed motions to join her daughter as a plaintiff, Dkt. 8 (D. Minn. Nov. 25,

2019), Dkt. 9 (D. Minn. Dec. 2, 2019); a Motion for Emergency Injunction / Temporary

The parties make similar assertions regarding a case in Texas: Defendants state

that Biron “initiated a civil lawsuit through a state court complaint for which it appears

she was not required to pay a filing fee, which was removed to federal court (Dkt. 8 at 3

n.l (citations omitted)), and Biron states that she filed the case in Texas state court

because she is indigent and qualifies for a waiver of the filing fee under Texas law, that

she was “fully prepared” to litigate in state court, but the defendants removed the case;

and that the case “is currently pending at the Fifth Circuit Court of Appeals (no. 1910682) and remand is expected” (Dkt. 21 5-8).

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Restraining Order, Dkt. 10 (Dec. 4, 2019); and a Verified Motion for Summary Judgment

and for Preliminary Injunction, Dkt. 27 (Jan. 1, 2020). The defendants (which included

Hiller and the then-current Director of the BOP and the Warden of FCI-Waseca) were

given an extension of time to file a consolidated response to Biron s motions for joinder

and Motion for Emergency Injunction / Temporary Restraining Order. Dkt. 14 (Dec. 6,

2019). Biron responded to the defendants’ request for extension of time (though her

response was not received and docketed by the court until after the extension had already

been granted), clarifying that her motion was for emergency relief, not a preliminary

injunction, and stating that once she and her daughter received the emergency relief of

being able to communicate with each other, “they intend to move for a preliminary

injunction..

• 3

as well as file an amended complaint adding claims for damages.” Dkt.

15 (Dec. 16, 2019).9 In addition to Biron’s motions, the defendants filed a motion to

dismiss. Dkt. 29 (Feb. 4, 2020). However, based on letters from the parties, on March 6,

2020, U.S. Magistrate Judge Leo I. Brisbois permitted withdrawal of Biron’s Verified

Motion for Summary Judgment and for Preliminary Injunction and the defendants’

motion to dismiss. Dkt. 45 at 3 (Mar. 6,2020). Judge Brisbois further ordered that an

existing briefing schedule regarding Biron’s motions for joinder and Motion for

Emergency Injunction / Temporary Restraining Order remained in effect and that

defendants answer or otherwise respond to the complaint by April 10, 2020. Id. at 3-4.

Both the defendants and the court’s order had referred to Biron’s Motion for

Emergency Injunction / Temporary Restraining Order, Dkt. 10, as a motion for

preliminary injunction. Dkt. 11 (Dec. 5, 2019), Dkt. 14 (Dec. 6, 2019). As noted above,

Biron filed a separate Verified Motion for Summary Judgment and for Preliminary

Injunction. Dkt. 27 (Jan. 1, 2020).

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The defendants subsequently filed a new motion to dismiss. Dkt. 47 (Apr. 10, 2020).

This background sets the stage for the events in Biron v. Sawyer described in the

following Sections, beginning in April 2020, when the COVID-19 pandemic began to

affect inmates at FCI-Waseca.

Factual Background Regarding Access to Law Library and a Typewriter

Biron’s Law Library and Typewriter Access Before the COVID-19

Pandemic and in April 2020

Inmates at FCI-Waseca access a law library via an electronic database called the

Electronic Law Library (“ELL”). (Dkt. 5 ^ 14; Dkt. 56 If 6-7.) The BOP provides the

computer terminals—which are called TRULINCS computers or terminals—for

accessing the ELL, and a third-party vendor provides the content for the ELL. (Dkt. 5

f 14; Dkt. 56 f 6; see also Dkt. 56-3, Ex C (list of BOP ELL content).) According to the

declaration of Regina Kallis, Associate Warden at FCI-Waseca, this vendor updates the

ELL content, and updates are made monthly, quarterly, or less frequently, depending on

the content type. (Dkt. 56 f 8 (citing 56-4, Ex. D (ELL update schedules)).) Biron

asserts that content is updated only four times per year, which she asserts “is inadequate

under the Constitution and federal regulations” because it “prejudic[es] Plaintiff s ability

to litigate her active civil cases and criminal cases.” (Dkt. 5 f 30; see also Dkt. 25 f 6

(Nov. 16, 2020 Biron Deck stating that the ELL has not been updated since September);

Dkt. 24 at 2 (Biron’s Mem. Supp. Mot. Prelim. Inj. Relief stating that “caselaw has not

been updated since on or about September 20th”).) The ELL includes federal case law,

statutes, rules, regulations, program statements, and certain reference materials, as well as

similar categories of content for the District of Columbia and military law, but does not

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include state law material. (Dkt. 5 f 29; Dkt. 56 fflf 5-7; Dkt. 56-3, Ex C (list of BOP

ELL content).) Biron alleges that the content “is inadequate under the Constitution and

federal regulations” for the following reasons:

[I]t fails to provide access to any state law (caselaw or statutory law) which

has prejudiced Plaintiff in matters of state family law; state attorney

discipline law, and state tort law which informs all claims and statutes of

limitations under the Federal Tort Claims Act. In addition, many federal

convictions and sentences are based on prior state convictions, and without

access to the relevant state’s law, post conviction petitions cannot be filed.

(Dkt. 5 K 29.)

At FCI-Waseca, TRULINCS computers allowing access to the ELL are located in

the Recreation Building, where typewriters are also available for inmate use. (Id.\ 14;

Dkt. 56 Tf 9.) There also are TRULINCS computers in the housing units, but except as

described in Sections I.D.4-5, those computers allow inmates access to electronic

messaging with staff and the public, an electronic bulletin board, and other features, but

not the ELL, because, according to Kallis, “inmates had access to the ELL in the

Recreation Building.” (Dkt. 5 If 14; Dkt. 56 ^ 10.) According to a TRULINCS Inmate

Usage Report covering 2020, Biron was a regular user of the ELL before the COVID-19

pandemic; for example, in March 2020, she used the ELL on 8 different days for between

44 minutes and 135 total minutes per day. (Dkt. 56-8, Ex. H at 147-64 (Mar. 2020 data);

see also id. at 165-92 (Jan.-Feb. 2020 data).)10

Biron states, “Since the COVID-19 pandemic, the FBOP and specifically FCI

Waseca have imposed severe restrictions on inmate movement and access to legal library

There is no similar data in the record about typewriter use, only a party’s and/or

declarant’s statements about when Biron used a typewriter.

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and typewriter.” (Dkt. f 13; see also Dkt. 70 H 11, 19 (Apr. 29, 2021 Biron Decl. stating

that she has had access to the Recreation Building 0 or 1 hour per day since April 1,

2020, and that she is presently required to remain in her housing unit 23 or 24 hours per

day).) Kallis similarly states, “Beginning on April 1, 2020, inmate movement throughout

the institution was limited to essential services and work details. Inmates otherwise had

to remain in their housing units. ... Due to these modified operations, inmates were no

longer able to access the ELL in the Recreation Building ....” (Dkt. 56 ^ 11-12 (citing

Dkt. 56-5, Ex. E (Mar. 31, 2020 BOP COVID-19 Action Plan Memorandum)).) Kallis

states that “institutions were instructed to provide inmates access to the ELL when they

demonstrated an imminent court deadline, which is generally defined within the BOP as a

court-imposed deadline within 30 days.” (Id. 111.) Although Biron’s Amended

Complaint does not describe this policy and there is no information in the record about

when she first became aware of it, she was aware of the policy at least as of May 18,

2020, as shown in an email she filed as an exhibit in Biron v. Sawyer that referenced the

requirement for an imminent deadline. See Dkt. 64 (D. Minn. June 1, 2020).

Kallis further states that “FCI Waseca considered alternative means of [ELL]

access for the inmates,” including “activating the ELL function of the TRULINCs

computers in the housing units.” (Dkt. 56 ^[ 12.) FCI-Waseca officials decided against

activating the ELL in the housing units at that time” due to “concerns [that] inmates using

the ELL function in the housing units would monopolize the terminals, preventing other

inmates from” using the terminals for other purposes, such as electronic messaging, at a

time when inmate visitation had been suspended and officials “determined it was

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important to maintain inmates’ ability to communicate with the public” by phone and

email. (Id.) “Instead, FCI Waseca determined providing inmates with access to an ELL

' terminal outside of the housing units and under staff supervision was a better option.

Staff supervision was required because of the modified operations. (Id. 113.) Because

the Recreation Building was out of the way, and so more time-consuming for staff to

supervise, and “a larger area to disinfect between inmate users,” FCI-Waseca officials

“rejected the idea of bringing inmates to the Recreation Building.” (Id. )

FCI-Waseca allowed inmates to use a terminal with ELL access and a typewriter

“in a smaller room centrally located to the housing units” as of April 20, 2020. (Id. 1f 14.)

Biron similarly states that ELL and typewriter access were available “from approximately

mid-April through the beginning of May 2020” “in center hall. (Dkt. 60 at 3 n.4.) Biron

attributes this arrangement to “an experienced Interim Warden at FCI-Waseca at that

time, “who, in direct response to Plaintiffs need and request” made the ELL and

typewriter available in that location. (Id.) According to Kallis, to gain access to the ELL

and typewriter, inmates had to “demonstrate^ an imminent court deadline, defined as a

court-ordered response within 30 days ... in order to limit the number of inmates leaving

a housing unit, which would in turn, reduce the risk of spreading COVID-19 throughout”

FCI-Waseca. (Dkt. 56 If 14.) Staff would screen an inmate for COVID-19 symptoms

before removing her from her housing unit, escort the inmate to the ELL and typewriter,

supervise the inmate’s use, and then screen her again before the inmate returned to her

housing unit. (Id.

15.) “The ELL terminal, typewriter, and anything else the inmate

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may have come into contact with in the room were disinfected after each inmate’s use.”

(Id.)

Kallis states that “[t]hroughout the COVID-19 pandemic, Biron has received

access to the ELL consistent with these procedures.” (Id. 122 (citing Dkt. 56-8, Ex. H

(2020 TRULINCS Inmate Usage Report).) In April 2020, Biron’s ELL use consisted of

65 minutes on April 21 (Dkt. 56-8, Ex. H at 136), which would have been after ELL

access was provided “in a smaller room centrally located to the housing units,” as

described by Kallis (Dkt. 56 ^ 14) and apparently during the time access was provided “in

center hall,” as described by Biron (Dkt. 60 at 3 n.4). Biron also used a typewriter on or

about April 24, 2020, as on that date she signed and mailed a typed opposition to

Defendants’ Motion to Dismiss in Biron v. Sawyer. Dkt. 55 at 5 (D. Minn. Apr. 29,

2020).11 The court in that case had ordered that Biron “file and serve her response to

Defendants’ Motion to Dismiss, [Docket No. 47], as soon as practicable and in any event

by no later than Tuesday, May 5, 2020.” Dkt. 54 at 4 (D. Minn. Apr. 14, 2020).

Biron’s Law Library and Typewriter Access from May Through July

2020

Biron alleges that she “sought permission from Defendant Hiller in May 2020 for

time at the law library and with a typewriter to draft an essential filing in case no. 19-cv2938 (an amended complaint),” but “Defendant Hiller, who is also a defendant in case

no. 19-cv-2938, denied said access.” (Dkt. 5^15.) In Biron v. Sawyer, she filed an

In this response, Biron stated that she “intends to amend her Complaint to include

claims for damages, but awaits a decision on her and her daughter s motions for joinder

in order to know how to proceed with the amendment.” Dkt. 55 at 1 (D. Minn. Apr. 29,

2020).

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exhibit of an email she sent on May 15, 2020, in which she requested law library access

to work on that case, and it appears that email relates to the incident described in the

Amended Complaint in this action. Dkt. 64 (D. Minn. June 1, 2020) (“My last request

for access to the law library for preparation for possible litigation was denied by you. I

request a 2-hour block of time in the law library concerning case no. 19-cv-2938. I’ll not

explain to you the particular purpose as you are a defendant in that case”). The exhibit

includes a response dated May 18, 2020, which states, “Case 19-cv-2938 is under

advisement, and there is no imminent deadline at this point. Therefore, under the

modified COVID-19 conditions limiting inmate movement, you will not be able to use

the [ELL]. Should you receive information from the Court indicating a filing deadline,

you may again request access.” Id.12 The next day, May 19, 2020, Biron completed an

Informal Resolution Attempt form regarding her May 15 request for law library access,

which stated:

On 5/15/20, I was severely prejudiced by AW Vaught’s, AW Kallis’, and

Unit Manager Hiller’s refusal to allow me access to the law library to

prosecute case no. 19-CV-2938 .... Specifically, on 5/15/20,1 received the

Defendants’ Reply to my opposition to their motion to dismiss. Defendants’

Reply .. . necessitated a “Sur-reply” from me. Defendants’ failure to allow

my access to the law library required me to hand-write my motions without

the ability to read the case law cited by the defendants to provide any

supportive authorities for my motion. Defendants claim that the [BOP]

authorized this denial to prosecute my case against them.*

*Defendants claim I may only use the law library if they agree that I have an

imminent court deadline. This is false. On April 28, 2020,1 was permitted

to use the law library to draft a letter of Supplemental Authority to the First

It is not clear from the face of the document which FCI-Waseca official received

and responded to Biron’s email. The email’s opening is to Ms. Hiller, but the To

field shows “Mr. Vaught,” and then the “From” field in the response shows “Associate

Warden.”

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Circuit. (Case 18-1705) There is never a “deadline” for something of that

nature. Defendants chose to bar my use of the law library to effectively

prosecute my case against them.

Dkt. 65 (D. Minn. June 25, 2020).

Two other things occurred on May 18, 2020, the day Biron received the email

denying her request to use the law library (and before she filled out the Informal

Resolution Attempt form on May 19). First, Biron signed a handwritten Motion for

Leave to File Sur-Reply/Sur-Reply and Motion for Leave to File Amended Complaint in

Biron v. Sawyer. Dkts. 58-59 (D. Minn. May 20, 2020). In the Motion for Leave to File

Amended Complaint (“motion to amend”), Biron moved “for leave to amend her

Complaint to include claims for damages against Defendants Hiller and Barnes in their

individual capacities” and requested “that the Court grant leave to amend, and allow her

fourteen (14) days after service of this Court’s decision on her and her daughter’s

motions for joinder to file said amended complaint.” Dkt. 59 (D. Minn. May 20, 2020).

Second, the BOP issued another COVID-19 action plan memorandum that stated,

“Whenever possible, consistent with social distancing protocols and safe institution

operations, inmates should be permitted access to the [ELL] at the discretion of the

Warden at each facility. We recommend that a schedule be established to permit fair and

timely access to ELL terminals upon inmate request....” (Dkt. 56-6, Ex. F at 2.)

Kallis states that “[a]t the time [the May 18,2020] guidance was issued, FCI

Waseca had begun permitting inmates out of their housing units for more activities,

including outdoor recreation in the area next to the Recreation Building.” (Dkt. 56

17.)

On May 25,2020, FCI-Waseca “opened the ELL in the Recreation Building back up for

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inmate use,” though the use was limited to one hour. (Id.; Dkt. 56-7, Ex. G (May 21,

2020 FCI-Waseca Inmate Bulletin regarding ELL use starting May 25).) See also Biron

v. Sawyer, Dkt. 65-1 at 2 n.l (D. Minn. June 25, 2020) (Biron filing stating that FCIWaseca recently “began to allow inmates to sign up for one (1) hour per week in the law

library”). Kallis states, “Inmates were permitted to go to either the outdoor recreation

yard or the ELL in small groups, by housing unit” and “did not need to demonstrate an

imminent court deadline.” (Dkt. 56117.) “Recreation staff were available to also

supervise the inmates using the ELL, which minimized [officials ] prior concerns about

staff resources.” (Id.)

Soon after the reopening of the law library in the Recreation Building, Biron used

the ELL for 49 minutes, on May 28, 2020. (Dkt. 56-8, Ex. H at 108.) Also on that day,

the defendants in Biron v. Sawyer filed their response to Biron’s motion to amend,

arguing that leave to amend should be denied because Biron’s motion “does not include

‘a copy of the proposed amended pleading’ and ‘aversion of the proposed amended

pleading that shows ... how the proposed amended pleading differs from the operative

pleading,”’ as required by Local Rule 15.1(b). Dkt. 61 (D. Minn. May 28, 2020). (See

Dkt. 5 118 (“The Defendants in case no. 19-cv-2938 based their objection on the

Plaintiffs failure to follow court rules which they prevented her from accessing.”).)

Biron, having been informed by phone of the defendants’ argument, signed a handwritten

Reply to Defendants’ Response to Motion to Amend Complaint that same day. Biron v.

Sawyer, Dkt. 63 (D. Minn. June 1, 2020). In her reply, Biron responded to the

defendants’ argument regarding her failure to comply with the Local Rule as follows:

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But the Defendants have not allowed Ms. Biron to have any access to any:

legal materials or a typewriter since April 28, 2020. ...

Ms. Biron had to draft her [motions] by hand without any access to the Fed.

R. Civ. P. or local rules or a typewriter. Now, these same defendants argue

her motion should be denied for failure to follow court rules that they have

kept her from accessing.

Wherefore, Ms. Biron requests this honorable Court grant her motion for

leave to file an amended complaint, order the defendants to stop sabotaging

her ability to prosecute this case by barring her access to the law library and

typewriter, or appoint an attorney to represent her ....

Id. Biron attached the emailed May 15 request for law library access and May 18

response denying access to this reply. Biron v. Sawyer, Dkt. 64 (D. Minn. June 1, 2020).

On June 16, 2020, Hiller responded to Biron’s May 19 Informal Resolution

Attempt, by writing on the form:

During modified operations for COVID-19 pandemic, the BOP requires that

inmates requesting access to the ELL demonstrate an imminent court

deadline, defined as a deadline within the next 30 days and set by the Court.

On 5/15/20, you did not have a deadline on above cited case. On 4/28/20

you were allowed access to ELL based on another case. You chose to work

on another case instead.

Biron v. Sawyer, Dkt. 65 (D. Minn. June 25, 2020). Biron submitted the Informal

Resolution Attempt form to the court in Biron v. Sawyer, as an exhibit in support of her

reply regarding her motion to amend, with a cover letter she signed on June 23. Dkt. 651 (D. Minn. June 25, 2020). In the letter, Biron stated, “The situation has not been

rectified,” and “In sum, the defendants continue to prevent Ms. Biron from accessing the

law library and typewriter to draft a proposed Amended Complaint in proper form unless

and until this Court issues an order with a deadline.” Id. at 2.

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Meanwhile, in June and July 2020, Biron used the ELL on 5 different days. (Dkt.

56-8, Ex. H at 98, 100, 104 (June 11: 50 min.; June 18: 47 min.; June 25: 52 min.).) She

used the ELL twice in July. (Id. at 89, 96 (July 2: 4 min.; July 16: 50 min.).)

Biron’s Law Library and Typewriter Access in August 2020 and the

Order and Report and Recommendation in Biron v. Sawyer

According to Kallis, in “mid-August 2020,” there was a surge in inmates with

COVID-19 at FCI-Waseca, and officials “were constantly reassessing modified

operations” to minimize spread of the virus. (Dkt. 56 18.) “To keep the institution

operational, staff were tasked with additional job responsibilities. It was no longer

feasible from an infection control or staffing standpoint to provide inmates with access to

the ELL and typewriters in the Recreation Department.” (Id.)

On August 20, 2020, Biron signed several papers that were filed in Biron v.

Sawyer. First, she signed a handwritten Motion to Substitute Official Capacity

Defendants with Their Successor. Dkt. 68 (D. Minn. Aug. 26, 2020). Second, she signed

a proposed First Amended Complaint, the majority of which was typed with the last

pages handwritten, containing a footnote apologizing for the handwritten portion and

explaining as follows:

While drafting this proposed First Amended Complaint, Defendant Hiller

learned that I sought approval for extra time [over the 50 minutes allotted] in

the law library to complete this document. She told the library officer that I

did not have approval for extra time .... She maintains that I do not have a

legitimate need to draft this document. Yet Hiller urged this Court to deny

my motion to amend for failure to provide this document.

Dkt. 68-1 at 5 n.3 (D. Minn. Aug. 26, 2020). Accompanying the proposed First

Amended Complaint was a copy of the typewritten complaint labeled “Redline Copy, ” on

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which Biron handwrote strikeouts and additions reflecting the proposed amendments,

which, in relevant part, substituted some defendants, added Biron’s daughter as a

plaintiff, and added claims for compensatory and punitive damages. See generally Dkt.

68-2 (D. Minn. Aug. 26, 2020). Third, Biron signed a letter addressed to the Clerk of

Court, explaining that she was enclosing a motion to substitute defendants and a proposed

First Amended Complaint and ‘“Redline Copy’ to supplement [her] previously filed

Motion for Leave to Amend Complaint.” Dkt. 68-3 at 2 (D. Minn. Aug. 26, 2020). In

this letter, Biron reiterated that she had been denied access to the law library by Hiller to

draft her amended complaint; because of that denial, she was not aware of the rules that

required her to file a proposed pleading and redlined copy; she became aware of those

rules through the defendants’ objections to her motion to amend; and she had been able to

access the law library and typewriter to draft the proposed First Amended Complaint but

was “cut off after only 50 minutes” because of Hiller’s intervention, and so Biron had to

handwrite part of the document. Id. at 1.

On August 21, 2020—the day after Biron wrote the documents described above

but before those documents were received and docketed by the court, see Dkt. 68 (D.

Minn. Aug. 26, 2020)—Judge Brisbois issued an Order and Report and Recommendation

in Biron v. Sawyer addressing various motions. Dkt. 66 (D. Minn. Aug. 21, 2020).13 As

relevant to this case, first, Judge Brisbois denied Biron’s motions for joinder, which

sought to add her daughter as a co-plaintiff. Id. at 11. Second, Judge Brisbois concluded

that Biron’s claim was moot and therefore recommended granting the defendants’ motion

The Order and Report and Recommendation is docketed at both Nos. 66 and 67.

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to dismiss. Id. at 20. Third, Judge Brisbois denied Biron’s motion to amend. Id. at 2128.

Addressing the motion to amend, Judge Brisbois first addressed violations of

Local Rules on Biron’s part, concluding that her “failure to comply in any way with the

Local Rules governing motion practice in this District represents a sufficient, independent

basis to deny” the motion to amend. Id. at 22 (citation omitted). The violations were that

Biron (1) failed to confer with defendants’ counsel regarding the motion and

(2) “submitted insufficient materials describing the amendments she wished to

specifically make even if the Court liberally construes Plaintiff s motion paper,” as the

motion was not accompanied by a proposed or redlined amended complaint, and “fail[ed]

to inform the Court as to any specific factual amendments Plaintiff wishes to add.” Id. at

21-22. In this case, Biron describes the denial of her motion to amend on the basis of

failure to comply with the Local Rules in her Amended Complaint as follows:

Because Plaintiff did not have access to the law library or typewriter, she

failed to follow local and federal court rules, and because of this her motion

for leave to amend her complaint was denied.

Defendant Hiller’s actions in denying law library access and access to a

typewriter severely prejudiced Plaintiff in that civil action.

The Defendants in case no. 19-cv-2938 based their objection on the

Plaintiffs failure to follow court rules which they prevented her from

accessing.

(Dkt. 5

16-18 (paragraph numbering omitted).)

In the Order and Report and Recommendation in Biron v. Sawyer, Judge Brisbois,

“[i]n an abundance of caution, however,... considered] the merits of [Biron s motion to

amend], on the limited record” available. Dkt. 66 at 22. He noted that Biron sought to

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amend only to include damages claims against certain defendants in their individual

capacities, and that, though Biron had not specified a legal basis or cause of action for the

damages claims, it appeared she sought to add individual capacity Bivens claims based on

the defendants’ violation of Biron’s “First Amendment right of familial association when

said Defendants restricted Plaintiffs ability to communicate with her daughter.” Id. at

23-24 (D. Minn. Aug. 21, 2020). Judge Brisbois analyzed the claim in detail and found

that Biron’s proposed First Amendment claim was not a cognizable Bivens claim, and

thus Biron’s proposed amendment would be futile. Id. at 24-28.

The day after Judge Brisbois’ Order and Report and Recommendation issued, on

August 22, 2020, Biron signed a handwritten document entitled “Verification of Date of

Filing,” in which she swore under penalty of perjury that her proposed First Amended

Complaint and Motion to Substitute Official Capacity Defendants were deposited in the

mail, and so deemed filed, on August 20, i.e., before the Order and Report and

Recommendation issued. Biron v. Sawyer, Dkt. 69 (D. Minn. Aug. 27, 2020). The

verification was accompanied by a letter to the Clerk of Court in which Biron stated, I

never dreamed Magistrate Brisbois would outright deny my motion to amend knowing

that I have been restricted from all access to the law library by the very defendants I am

suing, and was, therefore unable to draft and file the proposed First Amended Complaint

until now.” Dkt. 69-1 (D. Minn. Aug. 27, 2020). Biron stated that her verification

established that her proposed Amended Complaint was filed a day before Judge Brisbois

“dismissed [her] case,” and that Judge Brisbois did so “without even reviewing my

proposed amendments, in which I know I stated a meritorious claim because the

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proposed amendments arrived in the mail after the Order and Report and

Recommendation was issued. Id. The letter concluded, “I will be objecting to his report

and recommendation, but perhaps he would like to review the complaint, and

reconsider.” Id.

Biron used the ELL on three different days in August 2020, all after the Order and

Report and Recommendation issued in Biron v. Sawyer. {See Dkt. 56-8, Ex. H at 62-64

(Aug. 27: 136 min.; Aug. 30: 6 min.; Aug. 31: 23 min.).)

Biron’s Law Library and Typewriter Access in September 2020 and

the Conclusion of Biron v. Sawyer

According to Biron’s Amended Complaint in this action, “[wjhen [she] received

the Report and Recommendation [in Biron v. Sawyer], she again requested time at the

law library to draft her objections to the thirty-page order,” and “Defendant Hiller, with

Defendant Warden Starr’s approval denied Plaintiffs request.” (Dkt. 5

19-20.) Biron

alleges that she “specifically advised that she needed 8-10 hours of research time, 8-10

hours of drafting time (by hand which she could do on her unit), and 2-3 hours at a

typewriter,” but “the Defendants told Plaintiff that she had to use her one (1) hour

(actually 50 minutes) of recreation/exercise time to do all of her legal work on all of her

cases.” {Id. tU 21, 23.)

On September 1,2020, Biron signed a handwritten Motion for Extension of Time

to File Objections in Biron v. Sawyer, generally asserting the same facts described above

in the Amended Complaint regarding her requests for time to research and use a

typewriter. Dkt. 71 (D. Minn. Sept. 8, 2020). Biron stated, “At the rate of 50 minutes per

day, the Plaintiff cannot meet her deadline of 9/9/20. (14 days from service on 8/26/20),”

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and requested a 30-day extension. Id. {See also Dkt. 5 ^ 22 (alleging that Biron “was

forced to seek an extension of 30-Days”).) On September 10, 2020, U.S. District Judge

Susan Richard Nelson, “find[ing] good cause to grant an extension,” extended the

deadline for filing objections to September 23, 2020. Biron v. Sawyer, Dkt. 73 (D. Minn.

Sept. 10, 2020). {See also Dkt. 5 22 (“[Biron] was granted a 14-Day extension.”).)

Meanwhile, on September 3, 2020, Biron “used her 50 minutes to rush to draft her

initial Complaint in this present case.” (Dkt. 5 f 24; see also Dkt. 1-2 (original

complaint).) She alleged that “[s]he has not had access to a typewriter since.” {Id.; see

also Dkt. 24 at 2.) Biron also used the ELL several times from September 1 to

September 10. (Dkt. 56-8, Ex. H at 54-58, 60-61 (Sept. 1: 31 min.; Sept. 2: 44 min.;

Sept. 4: 32 min.; Sept. 5: 26 min.; Sept. 8: 37 min.; Sept. 9: 51 min.; Sept. 10: 54 min.).)

On September 14, 2020, access to the ELL was activated in Biron’s housing unit,

available via one TRULINCS terminal, though no typewriter was made available. (Dkt.

5 U 25; see also Dkt. 24 at 2; Dkt. 56 f 19 (Kallis Deck); Dkt. 60 at 2; Dkt. 70 Uf 14, 18.)

Kallis states that “[i]nmates were permitted to log into the ELL for two hours, with thirty

minutes between log-in periods,” which “addressed our concerns about inmates

monopolizing the terminals for the ELL at the expense of inmates being able to use the

terminals for electronic communication.” (Dkt. 56

19.) She also states that, while

terminals had to be disinfected between users, having the ELL available in the housing

units minimized the risk of COVID-19 spreading between units, and additionally,

“because staff would not have to escort inmates from the housing unit to the ELL

location, it minimized the amount of direct staff contact with positive or exposed inmates

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and allowed staff to devote their time to their other duties essential to institution

operations.” (Id.) Kallis acknowledges that “Program Statement 1315.07 provides

inmates preparing legal documents should be allowed to use a typewriter ‘ [ujnless clearly

impractical.’” (Id. 5[ 20.) But while the ELL was made available, FCI-Waseca officials

“declined to place typewriters in the housing units,” “anticipat[ing] inmates would be

restricted to their housing units for a relatively short period of time” and “would have

access to typewriters when they were again permitted to use the ELL in the Recreation

Department.” (Id.) Further, according to Kallis, “typewriters were a potential source of

COVED-19 transmission as there are more touch surfaces, such as knobs and levers for

paper and ribbon insertion, requiring disinfection on a typewriter than on a computer

keyboard.” (Id.) Biron used the ELL several times from September 14 to September 22.

(Dkt. 56-8, Ex. H at 51-54 (Sept. 14: 121 min.; Sept. 15: 94 min.; Sept. 16: 100 min.;

Sept. 18: 34 min.; Sept. 19: 4 min.; Sept. 21: 30 min.; Sept. 22: 6 min.).)

Biron alleges that on or about September 16, 2020, she “advised Defendant Hiller

in writing that her deadline in case no. 19-cv-2938 was extend to 9/23/20” and requested

a typewriter to draft her objections. (Dkt. 5 If 26.) She alleges, “Defendant Hiller

responded, ‘You may draft your document in pen or pencil.’” (Id.) According to the

objections she later filed, Biron tested positive for COVID-19 on September 17, 2020 and

“los[t] almost a full day’s time for preparing this document,” as she had to move to a

different housing unit. Biron v. Sawyer, Dkt. 74 at 3 n.2 (D. Minn. Sept. 28, 2020).

Biron alleges that on September 21 and September 23,2020, she “again requested access

to a typewriter ... via emails to Defendants Starr and Hiller, and verbally to Defendants

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Starr and Hiller,” and “advised Defendant Starr that she was violating the Code of

Federal Regulations.” (Dkt. 5 ^ 27.) Biron’s “request was denied and she was forced to

draft her 16-page, 3300-word Objection in pen, by hand, which used up hours of time she

needed, and did not have, for substantive research and drafting.” (Id. ^ 28.)

On September 23, 2020, Biron signed handwritten Objections to the Order and

Report and Recommendation. Biron v. Sawyer, Dkt. 74 (D. Minn. Sept. 28, 2020). She

referred to the denials of her requests to use a typewriter. Id. at 1, n.*, 2 n.l. Biron

objected to the denial of her motion to amend, beginning by stating, “Very early in this

litigation, Plaintiff made her intent to amend her complaint known to the Defendants and

this Court. Her goal, because of the difficulties in drafting legal documents in prison,

was to draft and file one (1) amended complaint as soon as this Court ruled on [her

motion for joinder].” Id. at 4. But, Biron stated, that ruling “did not come,” and when

she learned of the defendants’ arguments in their Reply in support of their motion to

dismiss, “she knew she could not wait any longer to seek leave to amend.” Id. Biron

described her request for access to the law library, the denial of that request because of

the absence of an imminent court deadline, and her handwritten motion to amend “that

requested the Court allow fourteen (14) days after its decision on the motions for joinder

- an imminent deadline — to file the amended complaint.” Id. at 4-5.

Biron stated that the defendants opposed her motion only on the basis that she had

not followed court rules, “rules that Defendant Hiller prevented her from accessing.” Id.

at 5. Biron stated that her Reply “informed the Court that these rules were not followed

because the Defendants would not allow her access to the law library to learn of these

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rules.” Id. Biron described the exhibits that she filed regarding the denial of law library

access and that she, “again, advised the Court that she required an order with a deadline

so that she could access the law library and typewriter to prepare her proposed first

amended complaint.” Id. at 5-6. Biron stated that after “weeks went by with no help in

the form of an order with a deadline from this Court,” she “determined she would have to

attempt to type her proposed first amended complaint once her unit’s quarantine COVTD19 quarantine lockdown ended, during her 50 minute per week law library time.” Id. at 6.

She described her request for additional time; the denial of that request; being stopped

while using the typewriter on August 20, 2020 “because she kept typing into the next

hour;” later finishing her proposed First Amended Complaint by hand; and mailing the

proposed pleading and redline copy to the court. Id. & n.3. Contending that those

documents were deemed filed before Judge Brisbois issued his Order and Report and

Recommendation, Biron argued that the denial of her motion to amend oh the basis of her

failure to comply with court rules “made inaccessible to her by the Defendants in the

middle of a COVID-19 pandemic lockdown is clearly erroneous and contrary to law, and,

regardless, Plaintiff did substantially comply with the rules before the magistrate denied

the motion.” Id. at 7; see also id. at 8 (“ ... Plaintiff was barred access to these rules.

She was prevented from accessing and following the federal rules by the very same

defendants she is suing, and the magistrate judge simply ignored this fact, making no

mention of it in his Order and R.&R.”). Biron further stated, “Nor did the Court issue an

order with a deadline as requested by Plaintiff so she could convince the Defendants to

let her use the law library.” Id. at 8.

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Biron also objected to the denial of the motion to amend on the basis of futility,

arguing that the defendants had waived any futility argument and that her Bivens claim

was not futile. Id. at 9-14. She further objected to the recommendation to grant the

defendants’ motion to dismiss “because the Motion for Leave to Amend Complaint

should have been granted” and “[t]he allegations in the proposed amended complaint

allege sufficient facts, when accepted as true, to overcome Defendants’ mootness

argument.” Id. at 14-15.

On September 30, 2020, Judge Nelson issued an Order Adopting Order and Report

and Recommendation. Biron v. Sawyer, Dkt. 75 (D. Minn. Sept. 30, 2020). Reviewing

Judge Brisbois’ findings that Biron had failed to comply with Local Rules requiring that

(1) parties meet and confer on nondispositive motions and (2) motions seeking leave to

amend a pleading be accompanied by a copy of the proposed amended pleading and a

redlined version, Judge Nelson “assigned] no error in the magistrate judge’s denial of

Biron’s Motion to Amend on procedural grounds.” Id. at 9-10. Observing that “Biron is

required to abide by the substantive and procedural rules applicable to this Court, even

though she is self-represented,” and was formerly licensed to practice law, Judge Nelson

reasoned, “[Biron] has capably represented herself in this action. Her handwritten filings

are very legible, well-organized, and cite appropriate legal authority. Had she sought

additional time or a stay of proceedings due to limited access to the law library and

typewriters, she was certainly able to seek such relief.” Id. at 10-11. Judge Nelson

therefore affirmed the denial of Biron’s motion to amend on the basis of the violations of

Local Rules and declined to address Judge Brisbois’ conclusions regarding futility, as

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“this ruling [on procedural grounds] fully resolves the motion.” Id. at 11-12. Judge

Nelson ordered Biron v. Sawyer dismissed without prejudice. Id. at 17.

In the days between Biron’s signing of her objections and Judge Nelson’s

September 30, 2020 Order Adopting Order and Report and Recommendation, the

TRULINCS Inmate Usage Report shows that Biron used the ELL on September 24 (124

minutes) and September 28 (50 minutes). (Dkt. 56-8, Ex. H at 49-50.) Biron, however,

stated, that “[f]rom September 24-29 the ELL was shut off, and then back on but set to

shut down at 7:00 p.m. for no apparent reason.” (Dkt. 24 at 2.)

Biron’s Law Library and Typewriter Access from October 2020

Through June 2021

In October 2020, Biron used the ELL several times a week for periods totaling

from 6 minutes to 168 minutes per day (see Dkt. 56-8, Ex. H at 32-48); this case was

docketed in this Court (Dkt. 1); and Biron signed two handwritten filings (Dkts. 5, 6).

Biron also used the ELL several times a week in November 2020. (See Dkt. 56-8,

Ex. H at 21-31.) On November 12, she signed multiple handwritten filings, including

documents related to opposing the Motion to Screen and Stay (Dkts. 18-19, 21) and

documents related to her Motion for Preliminary Injunction (Dkts. 22-28). In these

filings, Biron stated that the ELL was currently on, but case law had not been updated

since September, and that she had not had access to a typewriter since the first week of

September. (Dkt. 24 at 2; Dkt. 25 ^ 6.) She noted that she was currently “100%

restricted to her housing unit” and “[t]he situation is volatile and fluxuating [sic].” (Dkt.

24 at 1.) She also described that she needed access to new case law via the ELL and a

typewriter to effectively prosecute her cases, noting in particular: three pending petitions

■*

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for rehearing or rehearing en banc in the First Circuit Court of Appeals; a planned

“petition for permission to file a successive motion under 28 U.S.C. § 2255” with a

March 2021 deadline; a memorandum of law regarding the § 2255 petition that must be

submitted to an attorney by December 1, 2020; a pending appeal in the Fifth Circuit

Court of Appeals; and this case. (Dkt. 25

5-10.) Biron further stated that her hand

becomes very sore from handwriting her documents and that “Defendants, particularly

Defendant Hiller, has told Plaintiff that it is ‘clearly impractical’ for her to have access to

a typewriter because of COVID-19.” (Id. ^[11,14.) Biron also signed additional

handwritten documents later in the month, on November 23, regarding the Motion for

Preliminary Injunction. (Dkts. 31-33.)

“Towards mid-November,” according to Kallis, “as the number of COVIDpositive inmates decreased, FCI Waseca again permitted inmates to use the ELL and

typewriters in the Recreation Department.” (Dkt. 56 ^ 21.) As noted previously, Kallis

states, “Throughout the COVID-19 pandemic, Biron has received access to the ELL

consistent with these procedures.” (Id. Tf 22 (citing Dkt. 56-8, Ex. H (2020 TRULINCS

Inmate Usage Report).)

The TRULINCS Inmate Usage Report filed by Defendants ends with records for

December 31, 2020 (see generally Dkt. 56-8, Ex. H); it indicates that in December 2020,

Biron used the ELL about two to three times a week, for periods ranging from 4 to 82

minutes per day (id. at 1-20). In December 2020 and January 2021, Biron signed

handwritten filings related to her Sur-Reply to the Motion to Screen and Stay (Dkts. 41-

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42) and letters to U.S. District Judge Wilhelmina M. Wright regarding the opening of her .

mail (Dkts. 43, 51; see infra n.17).

From February 2021 through April 2021, Biron signed several handwritten letters

and other filings. (See Dkts. 60-62, 64, 67, 69-71.) In a filing dated Februaiy 16, Biron

noted that she had three petitions for certiorari to the U.S. Supreme Court due by April

12, 2021 (Dkt. 60 at 1 & n.2) and a motion to litigate in Biron v. Hurwitz (id. at 1-2), see

No. 19-cv-57 (SRN/LIB), Dkt. 69 (D. Minn. Feb. 11, 2021).14 On April 29, 2021, she

noted that she is required to remain on her housing unit 23 or 24 hours per day. (Dkt. 70

If 19.)

In June 2021, Biron signed two typewritten letters to the Court regarding ELL

access in her housing unit and requesting that such access be restored. (Dkts. 73, 74.) In

the first, dated June 13, Biron stated that ELL access in the housing unit had been

removed on June 8 and would not be restored because “access to the recreation building

has increased somewhat” and the ELL was available in that location. (Dkt. 73 at 1.) She

stated that the ELL is accessible an average of 3 hours per day and that the terminals

timeout after 2 hours, with a half-hour wait required before the next session. (Id.) Biron

submitted emails with FCI-Waseca officials stating, as of June 11, Access to the law

library is available in accordance with Program Statement 1315.07, Legal Activities,

Inmate. The current schedule allows for 4 to 4.5 hours per day Monday - Friday and 1.5

hours to 3.5 hours on weekend days . ...” (Dkt. 73-1.) Biron’s June 20 letter described,

This motion, Biron’s Motion Under Fed. R. Civ. P. 60(b)(2), was later denied.

Biron v. Hurwitz, No. 19-CV-57 (SRN/LIB), Dkt. 77 (D. Minn. June 23,2021).

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and attached, an email from Hiller “written in response to my request for more ELL time

to prepare a petition for a writ of mandamus, [with] her strange interpretation of the CFRs

to require an imminent court deadline for law library access.” (Dkt. 74.) Biron states,

“Especially troubling,... is her belief that it is legal for her to require me to ‘demonstrate

that ah of [my] leisure time in recreation is being used for legal research.’” {Id. (quoting

Dkt. 74-1 and adding emphasis).)

Factual Background Regarding Mail Procedures

Biron alleges that “[a]s of July 2019, Defendants began refusing to deliver and

returning to the post office incoming general correspondence mail without opening the

envelope and inspecting its contents if the envelope was not white and if labels such as

address labels were on the envelope’s exterior.” (Dkt. f 31.) Kallis states that the

relevant changes in mail handling were effective on August 1,2019, though inmates were

informed of the changes on July 1. (Dkt. 56 Tf 26; Dkt. 56-10, Ex. J (July 1, 2019 Notice

to Inmate Population, “Inmate Mail Procedures”).) Kallis confirms that, among other

procedures and requirements, “[a]ll incoming general correspondence envelopes and

paper must be white in color”, and “[i]ncoming general correspondence utilizing a label

for either the recipient and/or sender may be rejected (except for inmate to inmate

correspondence); requiring the recipient and sender information to be completed either in

ink or through an address stamp.” (Dkt. 56 K 26 (citing Dkt. 56-10, Ex. J).)

Kallis describes that these mail handling procedures—FCI-Waseca’s “enhanced

general correspondence procedures”—were implemented pursuant to a September 14,

2018 BOP memorandum entitled, “Incoming Inmate Correspondence Procedures for

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Contraband Prevention.” {Id. f 23; see Dkt. 56-9, Ex. I.) “In response to an increase in

the introduction of narcotics and other prohibited drugs or controlled substances through

the mail, the Memorandum authorized Wardens, consistent with current policy, to

implement a series of procedures designed to assist with the detection of narcotics.”

(Dkt. 56 f 23.) According to Kallis, “[ijncoming mail is one of the primary ways for

inmates to introduce narcotics into a secure facility,” through paper items soaked in liquid

forms for narcotics, narcotics added to ink, and strips with narcotics hidden in a piece of

mail. {Id. 124.) Kallis describes a multi-step, “labor intensive” examination process for

incoming mail “[t]o combat the introduction of narcotics through the mail.” {Id. 125.)

With respect to the specific procedures Biron identifies, Kallis states, first, “The

requirement for white paper and envelopes assists staff in identifying items which had

been soaked in narcotics and then dried; watermarks are more visible on white paper,”

which “in turn reduces the number of suspicious items needing to be photocopied by staff

for delivery to inmates,” and, second, “[Sjuboxone is often hidden under labels, stamps,

and envelope flaps. Prohibiting labels eliminates one location for concealing narcotics,

the removal of stamps and envelope flaps reduces the possibility of inmates receiving

narcotics otherwise concealed in those locations.” {Id. Iff 28, 30.)

Biron alleges that FCI-Waseca’s mail procedures “resulted in important mail from

legal associations and others being returned to the senders unopened simply for being in

orange-colored legal-size envelopes. Important legal information relevant to Plaintiff s

active litigation was not delivered to Plaintiff, returned to the post office, which returned

the mail to sender, solely because of a return address label on the envelope s exterior.

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(Dkt. 5 31.) She also alleges that “[failure to deliver important state of N.H. legal

information prejudiced Plaintiff in her litigation against FBOP officials at FMC Carswell,

Texas.” (Id. f 32.)

Procedural Background in This Action

As described above in Section I.B, the Amended Complaint asserts violations of

Biron’s First Amendment rights based on restrictions imposed by Defendants with

respect to the law library, access to a typewriter, and prison mail procedures.

Shortly after Biron filed her Amended Complaint, on November 2, 2020,

Defendants filed the Motion to Screen and Stay and supporting materials. (Dkts. 7-12.)

Biron filed a Response, a Memorandum opposing the Motion to Screen and Stay, and

supporting materials on November 15,2020. (Dkts. 18-21.) Defendants filed a Reply

and supporting declaration on December 2, 2020.15 (Dkts. 34-35.) Biron filed the

Motion for Leave to File Sur-Reply, asserting that Defendants’ Reply “makes several

arguments that are incorrect as a matter of law,” and the proposed Sur-Reply on

December 11, 2020. (Dkt. 41 at 1; Dkt. 42.) Defendants did not respond to Biron’s

Motion for Leave to File Sur-Reply. As there has been no opposition and in order to

decide the Motion to Screen and Stay on a complete record, Biron’s Motion for Leave to

File Sur-Reply (Dkt. 41) is granted, and the Court has considered the Sur-Reply.

On November 18, 2020, the Court ordered Defendants to file “a reply

memorandum in support of its Motion to Screen and Stay Proceedings explaining its

position” as to several issues in that Motion. (Dkt. 29 at 4-5.) The Court also set

deadlines for briefing as to the Motion for Preliminary Injunction. (Id. at 5.)

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On November 16, 2020, the same day that she filed her opposition to the Motion

to Screen and Stay, Biron filed the Motion for Preliminary Injunction and supporting

materials. (Dkts. 22-28.) She filed the Motion for Leave to Supplement Motion for

Preliminary Injunction, stating, “The facts set forth in the accompanying Verified

Supplement are new since the preliminary injunction motion was filed and are material to

any opposition contemplated by the Government,” and the proposed Verified Supplement

to Motion for Preliminary Injunction on November 30, 2020. (Dkt. 31 at 1; Dkt. 32.)

Defendants did not respond to Biron’s Motion for Leave to Supplement Motion for

Preliminary Injunction. As there has been no opposition and in order to decide the

Motion for Preliminary Injunction on a complete record, Biron’s Motion for Leave to

Supplement Motion for Preliminary Injunction (Dkt. 31) is granted, and the Court has

considered the supplement.

After several requests for extension of time to respond to the Amended Complaint

and the Motion for Preliminary Injunction and orders setting such deadlines (Dkts. 13,

17, 29, 37, 40, 44, 48), and in response to a letter from Defendants clarifying their last

request for an extension (Dkt. 49), on January 25, 2021, the Court ordered Defendants to

respond to the Amended Complaint and the Motion for Preliminary Injunction on or

before February 8, 2021 (Dkt. 50). On February 8, Defendants filed the Motion to

Dismiss (Dkt. 52) and a combined Memorandum in Support of Defendants’ Motion to

Dismiss or for Summary Judgment and in Opposition to Plaintiff s Motion for

Preliminary Injunction, with supporting materials (Dkts. 53-58).

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On February 17, 2021, the Court set a schedule for the remaining briefing,

ordering that Biron’s opposition to the Motion to Dismiss and reply brief in support of

the Motion for Preliminary Injunction were due by March 19, 2021, and Defendants’

reply brief in support of the Motion to Dismiss was due ten days after Biron’s opposition

was docketed.16 (Dkt. 59.) Biron filed her Reply in support of the Motion for

Preliminary Injunction on February 25, 2021. (Dkt. 60.) She moved for “an extension or

stay of the other deadlines until you grant (or deny) the preliminary injunction” on

February 26, 2021. (Dkt. 64.) On March 9, The Court granted that request in part by

setting a deadline of April 9 for Biron’s response (Dkt. 66 at 2-3), but then on March 12,

Biron’s Reply in support of her request for an extension or stay was docketed, which

asked, “[i]f the Court is inclined to deny the stay,” that her deadline to respond be

extended to May 1, 2021 (Dkt. 67 at 2). Noting “[i]t appears that [the March 9] Order

may not have reached Plaintiff prior to the filing of her present Reply,” the Court ordered

on March 15, 2021 that Biron’s deadline to respond to the Motion to Dismiss be May 3,

2021, with Defendants’ reply brief due 14 days after Biron’s response. (Dkt. 68 at 2-3.)

Biron filed her response to the Motion to Dismiss and supporting materials on May 3,

2021 (Dkts. 69-71), and Defendants filed their Reply on May 17, 2021 (Dkt. 72).

Having granted Biron’s Motion for Leave to Supplement Motion for Preliminary

Injunction (Dkt. 31) and Motion for Leave to File Sur-Reply (Dkt. 41), the Court now

This Order also set a deadline for Defendants to respond to Biron’s Motion for

Leave to Supplement Motion for Preliminary Injunction (Dkt. 31) and Motion for Leave

to File Sur-Reply (Dkt. 41), to the extent they wished to respond. (Dkt. 59.) As noted

above, Defendants did not respond.

»*

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turns to the Motion to Dismiss, the Motion for Preliminary Injunction, and the Motion to

Screen and Stay, in that order.17

II.

DEFENDANTS’ MOTION TO DISMISS OR FOR SUMMARY

JUDGMENT (DKT. 521

Legal Standard for a Motion to Dismiss for Failure to State a Claim and for

Summary Judgment

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

the pleadings are construed in the light most favorable to the non-moving party, and the

facts alleged in the complaint must be taken as true. See Ashley Cty., Ark. v. Pfizer, Inc.,

552 F.3d 659, 665 (8th Cir. 2009). In addition, a court must afford the plaintiff all

reasonable inferences from those allegations. See Blankenship v. USA Truck, Inc., 601

F.3d 852, 853 (8th Cir. 2010). At the same time, to withstand a motion to dismiss under

Rule 12(b)(6), litigants must properly plead their claims under Federal Rule of Civil

In addition to the filings related to motions described above, Biron has sent several

letters to the Court. Two of the letters were addressed to District Judge Wright and stated

that FCI-Waseca officials had opened and, Biron believed, read her legal mail. (Dkt. 43

(Dec. 30, 2020); Dkt. 51 (Feb. 3, 2021).) However, the Amended Complaint does not

assert a claim based on the opening of legal mail (see Dkt. 5 45, 47, 50), and the letters

did not seek any relief. Further, the mail at issue in Biron’s February 3,2021 letter was

sent from the Department of Justice to Biron (Dkt. 51-1), and thus could not be attorneyclient privileged. Biron also sent a letter with her Reply in support of the Motion for

Preliminary Injunction, filed on February 25, 2021, “requesting] a ruling on her motion

as the relief requested therein directly bears on her ability to file her response/opposition

to [the Motion to Dismiss].” (Dkt. 61.) Biron sent two further letters, as described in

Section I.D. The first was filed on June 18, 2021 regarding recent events related to ELL

access, and requesting that the Court “order the defendants to re-activate the ELL on

[her] housing unit.” (Dkt. 73.) The second was filed on June 28, 2021, regarding Hiller’s

denial of her June 16 request for more time for legal research and access to the ELL in

her housing unit and requesting a hearing on her Motion for Preliminary Injunction and

an order requiring Defendants to “maintain the present (before 6/8/21) status quo by

reactivating the ELL on [her] housing unit.” (Dkt. 74.) The Court has considered those

two letters in connection with this Order and Report and Recommendation.

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Procedure 8 and meet the principles articulated by the U.S. Supreme Court in Iqbal and

Twombly.

Under Rule 8(a)(2), a pleading must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The pleacling

standard articulated by Rule 8 “does not require detailed factual allegations, but it [does

demand] more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations

omitted). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do.’” Id. (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). Thus, 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.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “[T]he plausibility standard, which requires a federal court

complaint to state a claim for relief that is plausible on its face,... asks for more than a

sheer possibility that a defendant has acted unlawfully.” Ritchie v. St. Louis Jewish Light,

630 F.3d 713, 717 (8th Cir. 2011) (internal quotation and citation omitted).

“Determining whether a complaint states a plausible claim for relief will... be a contextspecific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679 (citation omitted).

Following Twombly and consistent with Iqbal, the Eighth Circuit explained:

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While a plaintiff need not set forth detailed factual allegations or specific

facts that describe the evidence to be presented, the complaint must include

sufficient factual allegations to provide the grounds on which the claim rests.

A district court, therefore, is not required to divine the litigant’s intent and

create claims that are not clearly raised, and it need not conjure up unpled

allegations to save a complaint.

Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (cleaned up). Pro se

complaints are construed liberally, but they still must allege sufficient facts to support the

claims advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (citations

omitted).

If matters outside the pleadings “are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.

12(d). “Though matters ‘outside the pleadings’ may not be considered in deciding a Rule

12 motion to dismiss, documents necessarily embraced by the complaint are not matters

outside the pleading.” Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir. 2017)

(quoting Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir.

2004)). Thus, while courts primarily consider the allegations in the complaint in

determining whether to grant a Rule 12(b)(6) motion, courts additionally consider items

subject to judicial notice, matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint whose authenticity is unquestioned,

without converting the motion into one for summary judgment. Id.; see also Miller v.

Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012); E. Coast Test Prep

T.T.C v. Allnurses.com, Inc., 307 F. Supp. 3d 952, 962 (D. Minn. 2018) (citing Levy v.

Ohl, All F.3d 988, 991 (8th Cir. 2007) (discussing court records)) (“Also included [in

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materials that are necessarily embraced by the pleadings] are public records that do not

contradict the complaint.”), aff’d, 971 F.3d 747 (8th Cir. 2020).

Defendants have moved for summary judgment in the alternative, which the Court

addresses in Section II.B.2.d. (Dkt. 52.) Summary judgment is appropriate where there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). As this wording suggests, the initial burden of

showing that no genuine issue of material fact exists lies with the movant. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is “material” only if resolving it

might affect a suit’s outcome under the governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, a factual dispute is “genuine” only

if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id.\ see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (citation omitted) (“Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for

trial.’”). When assessing a summary judgment motion, a court should believe the

nonmovant’s evidence and draw all justifiable inferences in the nonmovant’s favor.

Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59

(1970)).

Official Capacity Access to Courts Claims

Biron asserts that Defendants violated her rights under the First Amendment by

interfering with her access to the courts, specifically by failing to allow her meaningful,

adequate or reasonable access to the law library and typewriter; timely update the ELL;

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provide state law resources in the library; and deliver Biron’s mail which contained legal

information. (Dkt. 5

40-44.) Defendants argue that Biron “failed to sufficiently

demonstrate an actual injury,” and so her claims should be dismissed. (Dkt. 55 at 13.)

Legal Standard for Access to Courts Claims

“The Constitution guarantees prisoners a right to access the courts.” White v.

Kautzky, 494 F.3d 677, 679 (8th Cir. 2007) (collecting cases identifying constitutional

provisions guaranteeing access to the courts). “For prisoners, meaningful access to the

courts ‘requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.’” Id. (quoting Bounds v. Smith, 430 U.S. 817,

828 (1977)). “[Prisoners have a constitutional right of access to the courts but this right

does not guarantee the ability to discover grievances, and to litigate effectively once in

court.” Zink v. Lombardi, 783 F.3d 1089,1108 (8th Cir. 2015) (cleaned up) (quoting

Lewis v. Casey, 518 U.S. 343, 350 (1996)). The U.S. Supreme Court has held that a

prisoner’s right of legal access “guarantees no particular methodology but rather the

conferral of a capability—the capability of bringing contemplated challenges to sentences

or conditions of confinement before the courts.” Lewis, 518 U.S. at 356. The Court

continued:

When any inmate ... shows that an actionable claim of this nature which he

desired to bring has been lost or rejected, or that the presentation of such a

claim is currently being prevented, because this capability of filing suit has

not been provided, he demonstrates that the State has failed to furnish

“adequate law libraries or adequate assistance from persons trained in the

law.”

Id. (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)).

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However, a prisoner alleging a violation of her right of access to the courts must

allege an actual injury. See id. at 349. “Because Bounds did not create an abstract,

freestanding right to a law library or legal assistance, an inmate cannot establish relevant

actual injury simply by establishing that his prison’s law library or legal assistance

program is subpar in some theoretical sense.” Id. at 351. Instead, “a prisoner must

establish the state has not provided an opportunity to litigate a claim challenging the

prisoner’s sentence or conditions of confinement in a court of law, which resulted in

actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious underlying

legal claim.” White, 494 F.3d at 680 (citations omitted); see also id. (quoting Lewis, 518

U.S. at 353) (“To prove actual injury, White must ‘demonstrate that a nonfrivoulous [sic]

legal claim had been frustrated or was being impeded.’”).

Analysis of Official Capacity Access to Courts Claims

The Court recommends dismissal of Biron’s access to courts claims for failure to

adequately and plausibly allege an actual injury that resulted from the alleged denial of

access. As explained below, the Court recommends dismissal under Rule 12(b)(6) based

on the Amended Complaint and other materials it necessarily embraces.

Biron’s Allegations Regarding Biron v. Sawyer

First, the Court considers the allegations in the Amended Complaint regarding

Biron’s motion to amend in Biron v. Sawyer. Biron alleges that Hiller’s denial of access

to a typewriter and the ELL to draft her amended complaint caused Biron’s failure to

“follow local and federal court rules, and because of this, her motion for leave to amend

her complaint was denied” in Biron v. Sayer, resulting in “severe prejudice.” (Dkt. 5

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15-18.) She also identifies Hiller and Starr’s refusal to provide her with sufficient

access to the ELL and access to a typewriter to draft her objections to the Order and

Report and Recommendation in Biron v. Sawyer as a basis for her claim, although she

does not identify any prejudice resulting from this refusal. (Id. ^fij 19-28.)

Defendants concede that “[Biron’s] allegations regarding the motion to file an

amended complaint [in Biron v. Sawyer] are of the type that could support a claim.”

(Dkt. 55 at 17.) However, they first argue that Biron’s allegations on this topic “are

demonstrably false” because the motion to amend “was denied because it was legally

insufficient, not because she failed to follow a technical rule unknown to her because of a

problem with access to legal materials.” (Id. at 17-18 (citations omitted).) Defendants

further argue that “when Biron raised similar arguments regarding ELL and typewriter

access in [Biron v. Sawyer] in connection with her objections to Judge Brisbois R&R

recommending dismissal of her claims, Judge Nelson examined and rejected her

arguments.” (Id. at 20.)

Biron responds that “the district court in fact did not deny the amendment for

failure to state a claim under Bivens, but for failure to follow court rules made

inaccessible to her by defendants,” and points to Judge Nelson’s statement that “‘because

the court agrees with the Magistrate Judge’s nondispositive basis for denying leave to

amend, it need not reach the substantive basis for his ruling.’” (Dkt. 69 at 13 (quoting

Biron v. Sawyer, Dkt. 75 at 9 (D. Minn. Sept. 30, 2020).) Biron argues that she has

sufficiently alleged an actual injury because not following the Local Rules—which she

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contends was due to Defendants’ actions—“caused the denial of her Motion to Amend

and, consequently, the dismissal of her case.” (Id.)

In their Reply, Defendants focus on Judge Nelson’s comments in Biron v. Sawyer

that Biron had capably represented herself and that Biron could have sought more time in

light of her limited access to the law library. (Dkt. 72 at 1-2.) They argue that “it was

not FCI-Waseca’s COVID-19 related restrictions that caused Biron harm in [Biron v.

Sawyer], but rather her decision not to request additional time to draft her pleadings when

needed.” (Id. at 2 (citations omitted).) In other words, Defendants argue that the injury

resulted from Biron’s conduct, not theirs.

The Court has reviewed Judge Brisbois’ August 21, 2021 Order and Report and

Recommendation and Judge Nelson’s September 30, 2020 Order Adopting Order and

Report and Recommendation. It is plain that Judge Nelson based her affirmance of Judge

Brisbois’ denial of leave to amend on Biron’s procedural failings—both her failure to

meet and confer and to follow the Local Rule regarding amending pleadings—not the

futility of Biron’s proposed Bivens claim. See Biron v. Sawyer, Dkt. 75 at 9 (D. Minn.

Sept. 30, 2020). The Court focuses on the procedural failings rather than Defendants’

original futility-based argument. As to the procedural failings, as explained below, the

Court concludes that Biron’s litigation strategy, not the limitations on access to the ELL

and typewriter, resulted in denial of leave to amend in Biron v. Sawyer.

Biron’s motion to amend, filed on May 20, 2020, is a single-page handwritten

document seeking “leave to amend [the] Complaint to include damages against

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Defendants Hiller and Barnes in their individual capacities. ”18 Biron v. Sawyer, Dkt. 59

(D. Minn. May 20, 2020). Biron did not file a meet and confer statement, and it appears

undisputed that she did not meet and confer with the defendants regarding that action.19

Biron v. Sawyer, Dkt. 66 at 21 (D. Minn. August 21, 2020) (“There is no indication in the

Plaintiffs moving paper that she has attempted to meet and confer with Defendants

regarding the relief sought in Plaintiffs Motion. There is no meet and confer statement

and there is no indication in the record, whatsoever, that Plaintiff has conferred with

Defendants’ counsel in any way regarding her Motion to amend her Complaint.”). On

May 28, 2020, the defendants in Biron v. Sawyer filed an opposition to the amendment

based on Biron’s failure to file a copy of the proposed amended pleading and a version

showing how the proposed amended pleading differs from the operative pleading, as well

as Biron’s failure to specify the relief requested in violation of Federal Rule of Civil

Biron apparently had planned this amendment at least as of December 2019 but

chose to seek leave at a later time because she preferred to avoid having to file multiple

amended complaints. Biron v. Sawyer, Dkt. 15 (D. Minn. Dec. 16, 2019) (stating that

once she and her daughter received emergency relief of being able to communicate with

each other, “they intend to ... file an amended complaint adding claims for damages”);

see also Dkt. 74 at 4 (D. Minn. Sept. 28, 2020) (“Very early in this litigation, Plaintiff

made her intent to amend her complaint known to the Defendants and to this Court. Her

goal, because of the difficulties in drafting legal documents in prison, was to draft and

file one (1) amended complaint as soon as this Court rules on [her motions for joinder].”).

Biron does not explain why, having planned to amend for several months, she did not

research the relevant Local Rules and Federal Rules earlier.

It may be, based on Biron’s May 15,2020 email, that she did not wish to meet and

confer because she did not want to give the defendants advance notice of the proposed

amendment. See Biron v. Sawyer, Dkt. 64 (D. Minn. June 1, 2020) (“My last request for

access to the law library for preparation for possible litigation was denied by you. I

request a 2-hour block of time in the law library concerning case no. 19-cv-2938. I’ll not

explain to you the particular purpose as you are a defendant in that case.”).

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Procedure 7(b). Dkt. 61 (D. Minn. May 28, 2020). Defendants quoted the relevant

language of Local Rule 15.1(b) in their opposition. Id. at 1.

Biron filed a reply in support of her motion to amend on June 1, 2020, which she

signed on May 28, 2020. Biron v. Sawyer, Dkt. 63 (D. Minn. June 1, 2020). In her reply,

she acknowledged that she had been told the evening of May 28 that the defendants

objected to her motion because “she did not comply with certain local rules and federalrules of civil procedure.” Id. at 1. She stated that she had not been allowed “any access

to any legal materials or a typewriter since April 28, 2020.” Id. She asked the Court to

grant her motion, to “order the defendants to stop sabotaging her ability to prosecute her

case by barring her access to the law library and typewriter,” and for appointment of

counsel. Id. at 2. She did not ask the Court for permission to file the necessary papers

late or state that she was attempting to comply with Local and Federal Rules but needed

more time.

On June 23, 2020, Biron signed a cover letter that accompanied an “additional

exhibit” filed in support of her reply. Biron v. Sawyer, Dkt. 65-1 (D. Minn. June 25,

2020). The letter cited the defendants’ opposition, which, as noted above, quoted Local

Rule 15.1(b) when arguing for denial based on her non-compliance with that Rule. Id.

Thus, at least as of June 23,2020, Biron had the relevant text of Local Rule 15.1 before

her.20 See id. But she still did not attempt to file a copy of her proposed amended

It appears that Biron had access to the ELL, and therefore the Local Rules, before

this June 25, 2020 filing as BOP records indicate she accessed the ELL on May 28, 2020;

June 11, 2020; and June 18, 2020. (Dkt. 56-8, Ex. H at 100,104, 108 (May 28: 49 min.;

June 11:50 min.; June 18: 47 min.).) The Court does not rely on this evidence with

respect to its recommendation for dismissal under Rule 12(b)(6), as the public record in

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complaint, nor did she attempt to file a version of the proposed amended complaint that

showed how it differed from the operative complaint. Biron also did not ask the Court to

give her time to file a proposed amended complaint and version showing differences—

even though she asserted that “the defendants continue to prevent Ms. Biron from

accessing the law library and typewriter to draft a proposed Amended Complaint in

proper form unless and until this Court issues an order with a deadline.”21 She apparently

chose to rest on the original motion and her arguments regarding access to the law library

and typewriter despite her knowledge of the motion’s deficiencies and the fact that those

deficiencies were the basis for the defendants’ opposition.

On August 20, 2020, Biron signed a new motion (docketed on August 26, 2020) in

which she sought to substitute official capacity defendants with their successors and to

make certain amendments to the complaint, including again seeking to add a claim for

Biron v. Sawyer establishes her knowledge of Local Rule 15.1 and the basis for the

defendants’ opposition at least as of June 23,2020.

Biron suggested in her Objections to Judge Brisbois’ Order and Report and

Recommendation that she asked the Court to set a deadline for her so she could obtain

access to the law library. Biron v. Sawyer, Dkt. 74 at 8 (D. Minn. Sept. 28, 2020) (“Nor

did the Court issue an order with a deadline as requested by Plaintiff so she could

convince the Defendants to let her use the law library.” (emphasis added)). But despite

repeatedly referencing the requirement for a court deadline to obtain access to the ELL,

she never asked the Court to set a deadline. See, e.g., Biron v. Sawyer, Dkt. 63 at 1 (June

1, 2020) (referencing requirement); Dkt. 64 (email describing requirement of “imminent

deadline”); Dkt. 65 at 2 (again referencing requirement and stating she could not obtain

access unless the Court issues an order with a deadline). A request for a court order must

be made by motion and state the relief sought. Fed. R. Civ. P. 7. It is not enough to

reference BOP restrictions in filings that do not clearly identify what relief, if any, a party

is seeking. Thus, to the extent Biron suggests that her motion to amend was denied due

to the lack of deadline that would permit her access to the law library, the Court rejects

this argument.

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damages against Hiller and Barnes in their individual capacities. See Biron v. Sawyer,

Dkt. 68 (D. Minn. Aug. 26, 2020). The motion was filed with a partially typed and

partially handwritten proposed amended complaint and a version showing how the

proposed revisions differed from the operative complaint. See Biron v. Sawyer, Dkts. 68,

68-1, 68-2 (D. Minn. Aug. 26, 2020). In a cover letter, Biron stated that the August 20

motion was “to supplement” her previously filed motion to amend. Biron v. Sawyer, Dkt.

68-3 (D. Minn. Aug. 26,2020).)

On August 21, 2020, Judge Brisbois denied Biron’s May 20 motion to amend for

failure to comply with Local Rule 15.1, failure to meet and confer, and on futility

grounds. Biron v. Sawyer, Dkt. 66 (D. Minn. Aug. 21,2020).) The Order and Report and

Recommendation were docketed on August 21, 2020, before the Clerk’s Office received

Biron’s August 20 motion and supporting papers on August 26, 2020. Compare Biron v.

Sawyer, Dkt. 66 (D. Minn. Aug. 21, 2020), with id., Dkts. 68, 68-1, 68-2 (D. Minn. Aug.

26, 2020).) On August 22, 2020, Biron sent a letter to the Clerk’s Office noting this fact

and stating, “I never dreamed Magistrate Brisbois would outright deny my motion to

amend knowing that I have been restricted from all access to the law library by the very

. defendants I am suing, and was, therefore unable to draft and file the proposed First

Amended Complaint until now. »22 Biron v. Sawyer, Dkt. 69-1 (D. Minn. Aug. 27, 2020).

Biron’s August 22, 2020 claim that she had been “restricted from all access to the

law library ... and was, therefore, unable to draft and file the proposed First Amended

Complaint until now” appears to be inaccurate, as the ELL records show that she

accessed the ELL on May 28, June 11, June 18, June 25, July 2, and July 16,2020. (Dkt.

56-8, Ex. H at 89, 96 98, 100, 104, 108 (May 28: 49 min.; June 11: 50 min.; June 18: 47

min.; June 25: 52 min.; July 2: 4 min.; July 16: 50 min.).) Again, the Court need not rely

on this inconsistency for purposes of its Rule 12(b)(6) analysis.

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The letter concluded, “I will be objecting to his report and recommendation, but perhaps

he would like to review the complaint, and reconsider.”23 Id.

In sum, Biron had full knowledge of the deficiencies in her May 20 motion to

amend, knew what Local Rule 15.1(b) required, and knew the defendants in Biron v.

Sawyer opposed amendment based on those deficiencies for months before Judge

Brisbois denied her motion. She could have handwritten and filed a version of her

proposed amended complaint. She could have filed a version of the proposed amended

complaint showing how it differed from the amended complaint—as she did by

handwriting edits on the original complaint when moving to amend again in August.24

See Biron v. Sawyer, Dkt. 68-2 (D. Minn. Aug. 26, 2020). No rule requires Biron to use a

typewriter or computer to do either; in fact Local Rule 15.1(b) is clear that differences

between the proposed and operative pleading can be shown by “redlining, underlining,

strikeouts, or other similarly effective typographic methods. D. Minn. LR 15.1(b)

(emphasis added). She could have asked for time to comply with Local Rule 15.1(b). As

Judge Nelson noted, Biron was able at any time to seek “additional time or a stay of

If Biron wanted Judge Brisbois to reconsider his order in view of her August 20

motion or the limits on law library access, she should have sought permission to file a

motion for reconsideration pursuant to Local Rule 7.1(j), not suggested that “perhaps

[Judge Brisbois] would like to review the complaint, and reconsider” in a letter to the

Clerk of Court. See Fed. R. Civ. P. 7(b).

As Judge Nelson observed, and is true in this case, Biron’s “handwritten filings

are very legible, well-organized, and cite appropriate legal authority.” Biron v. Sawyer,

Dkt. 75 at 11 (D. Minn. Sept. 30, 2020).

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proceedings due to limited access to the law library and typewriters.”25 Biron v. Sawyer,

Dkt. 75 at 10 (D. Minn. Sept. 30, 2020). She could have sought reconsideration of Judge

Brisbois’ decision. But Biron chose to do none of these things. Instead, she spent her

time drafting a new motion that she filed in August 2020. (Dkts. 68, 68-1, 68-2.)

Biron argues that her allegations are “exactly” what the U.S. Supreme Court in

Lewis suggested would satisfy the injury requirement. (Dkt. 69 at 12.) In particular, she

argues: “The Court explained that to show an actual injury, an inmate ‘might show, for

example, that a complaint he prepared was dismissed for failure to satisfy some technical

requirement which, because of deficiencies in the prison’s legal assistance facilities, he

could not have known.’” {Id. (quoting Lewis, 518 U.S. at 351).) But the point here is

that even if her claim in Biron v. Sawyer was dismissed for failure to satisfy a technical

requirement, that failure was not one of which Biron “could not have known” due to

“deficiencies in the [law library].” Biron did know of the failure, at least as of May 28,

2020, when she learned of the basis for the defendants’ opposition, see Biron v. Sawyer,

Dkt. 63 (D. Minn. June 1, 2020), and she had the text of the relevant rule at least as of

June 23, 2020, see Biron v. Sawyer, Dkt. 65-1 (D. Minn. June 25,2020). Further, it was

not denial of access to the ELL and typewriter in May 2020 that resulted in denial of

Biron’s motion to amend and the dismissal of Biron v. Sawyer,26 it was her decision to do

Biron sought and was granted more time to file her objections based on her limited

access to the law library. Biron v. Sawyer, Dkt. 73 (D. Minn. Sept. 10, 2020).

Because Biron v. Sawyer was dismissed without prejudice, Dkt. 75 at 17 (D. Minn.

Sept. 30,2020), the Court questions the extent to which the denial of leave to amend and

dismissal actually prevented Biron from bringing an arguably meritorious and nonfrivolous claim based on the underlying facts. To the extent the dismissal prevents her

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*•

nothing to cure the deficiencies in the motion. See Surles v. Leach, No. 12-CV-12403,

2013 WL 5913388, at *17 (E.D. Mich. Oct. 31,2013) (rejecting reliance on Lewis and

recommending dismissal of access to courts claim because “even if Plaintiff s transfer to

the Mound Correctional Facility caused the May 2011 Complaint to be filed incorrectly,

the matter was ultimately dismissed because Plaintiff failed to properly correct the

signing deficiency, not because of Defendants’ actions”) (emphasis added), aff’d (Sept.

24, 2014).

In light of these facts, which are found in the judicial records of the case that

Biron raised in her Amended Complaint and which are not contrary to the nonconclusory

allegations in the Amended Complaint,27 Biron has failed, to plausibly allege that

Defendants “ha[ve] not provided an opportunity to litigate a claim ..., which resulted in

actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious underlying

from bringing a frivolous and not arguably meritorious claim, that would not constitute

actual injury. See White, 494 F.3d at 680.

The Court concludes that the court documents, including Biron’s filings, in the

record of Biron v. Sawyer are necessarily embraced by the pleadings and may be

considered here under the Rule 12(b)(6) standard. See E. Coast Test Prep, 307 F. Supp.

3d at 969 (citing Levy, All F.3d at 991) (on motion to dismiss defamation claim based on

statements about the litigation, considering discovery requests and previous orders and

concluding “[tjhese court documents are necessarily embraced by the pleadings”). Even

if all of the filings in Biron v. Sawyer were not necessarily embraced by the pleadings and

the Court must apply the summary judgment standard in considering them, for the

reasons stated in the Court’s alternative summary judgment analysis in Section II.B.2.d,

Biron has not raised a genuine dispute of material fact regarding an actual injury caused

by Defendants’ actions, and Defendants are entitled to summary judgment on this access

to courts claim. See id. at 970 (“Even if the documents above were not necessarily

embraced by the pleadings, there is nothing ATP can present as countervailing evidence,

and ATP’s claim that the Open Letter implies that ATP is seeking financial information

about Allnurses users is blatantly contradicted by the record, so that no reasonable jury

could believe it. Either way, the Open Letter is not defamatory.”) (cleaned up).

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legal claim.” White, 494 F.3d at 680. Biron had the opportunity to litigate her claim and

avoid injury by fixing the deficiencies in her motion to amend. She chose not to. She has

not plausibly alleged that the injury—denial of the motion to amend and dismissal of

Biron v. Sawyer—resulted from Defendants’ conduct (denial of access to the ELL and

typewriter) rather than her own. The Court therefore recommends dismissal of Biron’s

official capacity access to courts claims.

Biron’s Other Allegations of Prejudice in the Amended

Complaint

The remainder of the Amended Complaint makes general allegations of prejudice

with regard to various ongoing legal matters but fails to allege any instance where Biron

was actually hindered in presenting nonfrivolous and arguably meritorious claims in

those legal matters. For example, Biron claims that Carvajal’s and Starr’s “failure to

timely update the [ELL],” “failure to provide state law resources,” and “failure to deliver

Plaintiffs mail... which contained legal information ... prejudices [her] litigation.”

(Dkt. 5

43-45.) With respect to mail, Biron alleges that “important legai information

relevant to Plaintiffs active litigation” was not delivered and that “[fjailure to deliver

important state of N.H. legal information prejudiced Plaintiff in her litigation against

FBOP officials at FMC Carswell, Texas.” (Id. ffl[ 31-32.) With respect to state law

resources, Biron alleges that the absence of state law resources “has prejudiced Plaintiff

in matters of state family law; state attorney discipline law, and state tort law which

informs all claims and statutes of limitations under the Federal Tort Claims Act,” and

“many federal convictions and sentences are based on prior state convictions, and without

access to the relevant state’s law, post conviction petitions cannot be filed.” (Id. 129.)

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And with respect to ELL updates, Biron alleges that updates “only” four times per year

“prejudic[es] Plaintiffs ability to litigate her active civil and criminal cases.” (Id. f 30.)

Finally, Biron claims that Defendants’ “failure to [allow or ensure] Plaintiff meaningful,

adequate, or reasonable access to the law library and typewriter ... prejudices Plaintiff s

litigation.” (Id. Tflj 40-42.)

These claims are entirely nonspecific and conclusory as to injury because the

nature of the prejudice is not alleged. Biron alleges that she has ongoing litigation, in

various courts and of various kinds, but does not identify any aspects of her cases that

were frustrated or impeded by Defendants’ conduct with respect to the ELL, limiting

access to a typewriter, or Biron’s mail. (See id.

9-12, 29-32,40-42.) All of her

allegations of prejudice amount to only “labels and conclusions,” Twombly, 550 U.S. at

555, and do not allege “that a nonfrivoulous [sic] legal claim had been frustrated or was

being impeded,” White, 494 F.3d at 680 (cleaned up). See Hartsfield v. Nichols, 511 F.3d

826, 832 (8th Cir. 2008) (“The district court thus properly noted Hartsfield failed to

allege he was actually prevented from filing a complaint, or a filed complaint was

dismissed for lack of legal adequacy. ... Therefore, Hartsfield’s claim that any

complaint he would have filed would have been insufficient is speculative, and the

district court properly dismissed this claim.”); Kind v. Frank, 329 F.3d 979, 981 (8th Cir.

2003) (citing Lewis, 518 U.S. 343) (“Kind asserts he was denied his constitutional right

of access to the courts because the jail interfered with his mail, prevented him from

accessing certain legal materials, and denied him sufficient amounts of writing paper. ...

There is nothing in the record to show Kind lost a specific claim in any legal proceeding

'•

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as a result of the jail’s alleged interference.”); Sorenson v. Minn. Dep’t ofHum. Servs.,

No. 20-CV-501 (NEB/LIB), 2020 WL 7481756, at *15 n.16 (D. Minn. Nov. 13, 2020)

(even if plaintiff had standing to assert access to the courts claim, he “merely asserts in a

conclusory manner that the proposed claims could not be brought due to the actions of

Defendants,” which “are merely legal conclusions couched as factual allegations, which

the Court is not bound to accept them as true,” and therefore plaintiff “failed to plausibly

allege that he, or anyone else, was actually prevented from accessing the courts ), R.&R.

adopted, 2020 WL 7425233 (D. Minn. Dec. 18, 2020); Blair-Hanson v. Johnson, No. 19CV-2195 (NEB/TNL), 2020 WL 6121269, at *7 (D. Minn. May 22, 2020) (plaintiff

failed to state a claim where he “alleged a single instance of his legal mail being opened

outside of his presence without more” and did not “articulateQ how the opening of this

piece of legal mail resulted in actual prejudice” or plead “facts from which it could

reasonably be inferred that such prejudice even occurred”), R.&R. adopted, 2020 WL

5105775 (D. Minn. Aug. 31, 2020).28

Although Defendants set forth the standard for dismissal under Federal Rule of

Civil Procedure 12(b)(6) (Dkt. 55 at 12) and argue in a section heading in their brief that

the claim is “not plausible” (id. at 15), Defendants also rely on jurisdictional arguments

more appropriate to a motion under Rule 12(b)(1). (Id. at 17 (“As a jurisdictional issue,

she has not properly alleged an actual injury.).) Some cases addressing injury in prisoner

access to courts claims analyze the question as one of standing. See, e.g., White, 494

F.3d at 680 (“Because the actual injury requirement concerns the prisoner’s standing to

bring a claim, and thus our jurisdiction,.. . we will first consider whether White suffered

any actual injury.”); Sorenson, 2020 WL 7481756, at * 15 (“Plaintiff has failed to

demonstrate that Defendants’ actions resulted in any actual harm or injury to Plaintiffs

own right to access the courts, hence Plaintiff lacks standing to bring his purported access

to the courts claim.”). Here, the Court views Biron’s claims as alleging injury too

generally and insufficiently, rendering analysis under Rule 12(b)(6) is more appropriate.

In the alternative, the Court recommends dismissal for lack of jurisdiction due to lack of

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Moreover, to the extent that Biron alleges prejudice with respect to “family law

litigation” or “attorney discipline matters” (Dkt. 5 f 12; see also id. H 29)—or anything

other than litigation regarding her conviction or conditions of confinement—such an

injury is not within the scope of a prisoner’s right of access to the courts. See Lewis, 518

U.S. at 354-55 (“[T]he injury requirement is not satisfied by just any type of frustrated

legal claim. ... Bounds does not guarantee inmates the wherewithal to transform

themselves into litigating engines capable of filing everything .... The tools it requires

to be provided are those that the inmates need in order to attack their sentences, directly

or collaterally, and in order to challenge the conditions of their confinement. Impairment

of any other litigating capacity is simply one of the incidental (and perfectly

constitutional) consequences of conviction and incarceration. ); Larson v. Lake, No. 17CV-3551 (NEB/ECW), 2019 WL 5150832, at *7 (D. Minn. June 10, 2019) (“Plaintiffs

have failed to present any evidence that an actionable claim related to their sentences or

conditions of confinement which they desired to bring has been lost or rejected.

Although Larson stated that he is a pro se defendant and plaintiff in three other state

cases, he did not state—or point to any evidence suggesting—that the cases challenge his

sentence or conditions of confinement, nor that he was harmed in any way by the

allegedly inadequate resources at the law library.”) (cleaned up), R.&R. adopted as

modified sub nom. Larson v. Carlton Cnty. Jail, 2019 WL 4187839 (D. Minn. Sept. 4,

2019), aff’d, 810 F. App’x 489 (8th Cif. 2020).

standing insofar as her allegations are too general to constitute an allegation of injury at

all.

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Biron’s Allegations of Prejudice in Other Filings

Finally, the Court addresses Biron’s allegations of prejudice in filings other than

the Amended Complaint. For example, in her response to the Motion to Dismiss, Biron

offers some more detail about her need for state law information, stating she needed

access to but could not timely access “N.H. R.S.A. 169:c et seq.,” and asserting, “The

lack of access prejudiced her because the N.H. statute proved that arguments that [an

Assistant U.S. Attorney] was making in litigation were based on confidential documents

and information from a N.H. juvenile case,” and, “If Biron had timely access to this law

she could have shut down [the attorney’s] improper use of this information that

prejudiced her in two cases in Texas (one still ongoing) and violated N.H. law. (Dkt. 69

at 17-18.) Biron admits that these facts are “not spelled out in this level of detail in her

Complaint” but contends that she has nonetheless “clearly stated a claim.” (Id. at 18.)

These allegations do not demonstrate the requisite prejudice to overcome a motion to

dismiss for at least two reasons.

First, as set forth in Section II. A, on a motion to dismiss, the Court only considers

the allegations in the operative complaint and materials necessarily embraced by the

operative complaint. The Court therefore need not consider these assertions at all, as they

were not alleged in Biron’s Amended Complaint. See Thomas v. United Steelworkers

Loc. 1938, 743 F.3d 1134, 1140 (8th Cir. 2014)

Second, even if the Court considered Biron’s assertions in her Response, she has

not sufficiently identified any injury in those filings. With respect to the New Hampshire

statutes, Defendants argue that “the Court is left to guess which case was affected, what

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the prejudice was, what the likely outcome would have been, or when it happened.”

(Dkt. 72.) The Court agrees. Biron generally references “N.H. R.S.A. 169-c et seq.,”

which is the New Hampshire Child Protection Act, and claims her lack of access to this

Act “prejudiced her litigation against FBOP officials at FMC Carswell, Tx.” (Dkt. 69 at

16.) But she did not identify which portion of the Act she believed was violated by the

Assistant U.S. Attorney in the Texas litigation or which of her Texas lawsuits was

affected, much less set forth a non-frivolous legal theory for how a violation of a New

Hampshire statute would affect her legal claim against the BOP. And while Biron

continues to assert that she needs access to the ELL and a typewriter due to the number of

lawsuits she is pursuing {see, e.g., Dkt. 25 H 5-11 (detailing status of other litigation and

Biron’s legal work); Dkt. 60 at 1-2 & n.2 (same)), she fails to identify any instance where

she was unable to pursue nonfrivolous legal claim in any of those matters. In sum, even

if the Court considered Biron’s assertions of prejudice made outside of the Amended

Complaint, they still do not “demonstrate that a nonfrivoulous [sic] legal claim had been

frustrated or was being impeded,” White, 494 F.3d at 680 (cleaned up).

For all the foregoing reasons, the Court recommends that the Defendants’ Motion

to Dismiss be granted as to Biron’s official capacity access to courts claims. (See Dkt. 5

1140-45.)

Alternative Summary Judgment Analysis

Defendants move in the alternative for summary judgment on all claims. (Dkt.

52.) Having recommended dismissal of Biron’s official capacity access to courts claims

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for the reasons stated above in Sections II.B.2.a-c, the Court alternatively recommends

granting summary judgment to Defendants on these claims.

As noted in Section II.A, if a court considers matters outside the pleadings in

addressing a motion to dismiss, Rule 12 requires application of the Rule 56 summary

judgment standard instead of the 12(b)(6) standard. Fed. R. Civ. P. 12(d). Rule 12(d)

further requires that parties “be given a reasonable opportunity to present all the material

that is pertinent to the motion” when a court treats a motion to dismiss as one for

summary judgment. However, explicit or affirmative notice of the possibility of

conversion to a summary judgment framework is not required. Barron ex rel. D.B. v.

S.D. Bd. ofRegents, 655 F.3d 787, 792 (8th Cir. 2011). “‘[Pjarties have constructive

notice that the court will treat the motion as one for summary judgment when the moving

party states that it is moving for summary judgment and the parties submit and refer to

materials outside the complaint.” Machen v. Iverson, No. CIV. 11-1557 DWF/JSM, 2012

WL 566977, at *12 (D. Minn. Jan. 23, 2012) (quoting Riehm v. Engelking, 538 F.3d 952,

962 (8th Cir. 2008)), R.&R. adopted, 2012 WL 567128 (D. Minn. Feb. 21, 2012). “At

the same time, in the case involving a pro se party, the Court must proceed with caution

in converting a motion to dismiss to a motion for summary judgment. Id. (citing Beacon

Enter., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983)).

Here, Biron had constructive notice that the Motion to Dismiss would be treated as

one for summary judgment and had a reasonable opportunity to respond and present all

pertinent material. Defendants (1) explicitly moved in the alternative for summary

judgment (Dkt. 52) and (2) in their opening brief, presented a separate factual

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background in support of the motion for summary judgment that addressed ELL access,

typewriter access, and mail procedures and relied on the Kallis declaration and exhibits

(Dkt. 55 at 5-101); set forth the summary judgment standard (id. at 29-30); and argued

specifically that they were entitled to summary judgment regarding claims related to FCIWaseca’s mail policy (id. at 30-33). Biron, in response, also set forth the summary

judgment standard (Dkt. 69 at 1-2), raised arguments addressing the Kallis declaration

(id. at 2-7), and relied on material outside the pleadings (id. at 3-6 (citing Dkt. 70 (Biron

Decl.) and Dkt. 60 (Biron Reply Mot. Prelim. Inj.))). Considering all of these

circumstances, the Court concludes that Biron had adequate notice and opportunity to

respond and conducts a Rule 56 analysis in the alternative. See Pinson v. Hadaway, No.

18-CV-3420-NEB-KMM, 2020 WL 6121357, at *4 (D. Minn. July 13, 2020) (finding

that notice was adequate where defendants explicitly stated they were submitting

materials outside the pleadings and, if such materials were considered, court would be

required to convert motion to one for summary judgment, defendants defined and made

arguments using the summary judgment standard, and pro se plaintiff also submitted

materials outside the pleadings), R.&R. adopted, 2020 WL 5543749 (D. Minn. Sept. 16,

2020).

Regarding Biron’s allegations that Defendants’ actions related to law library and

typewriter access resulted in Biron’s failure to follow court rules, and because of that

failure, her motion to amend her complaint in Biron v. Sawyer was denied (Dkt. 5 Vt 1518, 40-42), Biron has not identified any dispute of material fact for trial that would

preclude summary judgment. Biron presented no evidence from which a reasonable juror

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could conclude that Defendants’ actions, rather than her own failure to cure the

deficiencies in her motion to amend, resulted in denial of that motion. See Larson, 2019

WL 5150832, at *7 (“Plaintiffs have failed to present any evidence that an actionable

claim related to their sentences or conditions of confinement which they desired to bring

has been lost or rejected. ... [Tjhere is no evidence that Plaintiffs claim was frustrated

or impeded by the alleged inadequacies in the law library. Indeed, Plaintiffs filed

[complaints] setting forth their allegations along with several motions, briefs, and

affidavits. Plaintiffs have not identified any lost or rejected claims or a claim that was or

is being prevented by the allegedly inadequate law library. Thus, there is no genuine

dispute of material fact that Plaintiffs have not suffered an actual injury, as required in an

access to courts claim.”) (cleaned up).

Rather than presenting any evidence relating to injury or causation, Biron argues

that the Kallis declaration “contains indisputably false statements that call into question

the veracity of the entire declaration,” specifically that “the false premises in paragraphs

12 and 19 of Kallis’ declaration negate the entirety of defendants’ rationale for not

activating the [ELL] on the housing units sooner.” (Dkt. 69 at 2 (citing Dkt. 56).) In

other words, she presented evidence directed to how the TRULINCS terminals function

and Defendants’ rationale for limiting access to the ELL and typewriter during the

pandemic. Even if the Court accepts Biron’s evidence as true, it would not alter the

Court’s conclusion as to summary judgment, as both are irrelevant to the question of

whose conduct resulted in denial of the motion to amend in Biron v. Sawyer. This alone

justifies summary judgment, as “a complete failure of proof concerning an essential

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element of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex, All U.S. at 323. Moreover, Biron’s evidence as to function and rationale does

not rebut Defendants’ evidence showing Biron used the ELL (and thus was able to access

the Local Rules) in May, June, and July 2020, after she filed her motion to amend and

weeks before her motion was denied. (See Dkt. 56, Ex. H at 89-108; supra nn.20, 22.)

Indeed, Biron does not dispute the accuracy of the ELL records, which were filed with

Defendants’ opening brief. For all of these reasons, the Court recommends summary

judgment on Biron’s access to courts claim to the extent it is based on denial of the

motion to amend in Biron v. Sawyer.29

The Court considers Biron’s claims to the extent they are based on how

Defendants’ actions related to ELL and typewriter access, ELL updates and content, and

mail delivery resulted in prejudice with regard to other ongoing legal matters. (Dkt. 5

9-12, 19-31, 40-45.) Biron has had ample opportunity to submit evidence

demonstrating she was actually hindered in presenting nonfrivolous and arguably

meritorious claims in those legal matters, including by identifying the specific injury m

i a

Biron argues that “[i]f the defendants do not concede the above-discussed points

[about the alleged false statements in Kallis’ declaration],... limited discovery should be

allowed.” (Dkt. 69 at 5.) Since the facts into which Biron proposes to conduct discovery

are not directed at the missing essential element of actual injury caused by Defendants,

this argument is unavailing. With respect to actual injury, Biron has not filed a Rule

56(d) affidavit showing that she cannot present facts essential to justify her opposition,

sought discovery, or offered any evidence to explain why she did not attempt to cure the

deficiencies in her motion to amend in Biron v. Sawyer or ask for more time to do so.

“Simply put, Plaintiff has done nothing to convince this court that [summary judgment as

to the access to courts claims] is not appropriate at this time.” Schiffler v. Home Depot

USA, Inc., No. CIV. 07-4303 JRT/LIB, 2013 WL 980334, at *8 (D. Minn. Feb. 15,

2013), R.&R. adopted, 2013 WL 980330 (D. Minn. Mar. 13, 2013).

J t

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specific case in an affidavit. She failed to do so. “Mere allegations, unsupported by

specific facts or evidence beyond the nonmoving party’s own conclusions, are

insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d

516, 527 (8th Cir. 2007) (citing Celotex, All U.S. at 324); see also Jackson v. MikeLopez, No. CV 17-4278 (JRT/BRT), 2020 WL 736682, at *9 (D. Minn. Jan. 27, 2020)

(“In deciding a summary-judgment motion, a court need not accept a nonmoving party’s

unsupported allegations, conclusory statements, or other statements that are blatantly

contradicted by the record, such that no reasonable jury could believe them.”) (cleaned

up) (citing and quoting Eighth Circuit cases), R.&R. adopted sub nom. Jackson v. Lopez,

2020 WL 733048 (D. Minn. Feb. 13, 2020). Instead, Biron disputes the veracity of

Kallis’ description of how TRULINCS terminals function and FCI-Waseca’s mailroom

procedures. (See Dkt. 69 at 4-5.) Any dispute of fact on those points does not preclude

entry of summary judgment because it is irrelevant to the question of actual injury with

respect to her ongoing legal matters. See Celotex, All U.S. at 323 (complete failure of

proof concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial).

In sum, considering the facts presented in conjunction with Defendants’

alternative motion for summary judgment, Biron has failed to raise a genuine dispute that

Defendants “ha[ve] not provided an opportunity to litigate a claim ..., which resulted in

actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious underlying

legal claim.” White, 494 F.3d at 680.

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Individual Capacity Access to Courts Claim Against Hiller

Biron asserts claims against Hiller in her individual capacity and specifically

alleges that Hiller, during the COVED-19 pandemic when inmate movement was severely

restricted, denied Biron’s request to use the ELL and typewriter in May 2020 and then

again later (“when she received the Report and Recommendation”), as well as Biron’s

request for a typewriter in September 2020. (Dkt. 5

5, 13,15-17, 19-20, 26-27.)

Defendants argue that “[t]o the extent Biron asserts claims against Defendant Hiller in

her individual capacity, the claims are not cognizable under Bivens, and Hiller is entitled

to the complete defense of qualified immunity.” (Dkt. 55 at 11, see also id. at 22-29.)

As explained in Section II.B, the Court concludes that Biron has failed to state an

access to courts claim against Defendants in their official capacities and, alternatively,

that summary judgment should be granted for Defendants on the official capacity claims.

The same reasoning applies to Hiller in her individual capacity. Further, even if Biron

had stated an access to courts claim, the Court concludes that qualified immunity would

bar her claim against Hiller.

Here, the Court assumes without deciding that Biron’s access to court claim is

cognizable under Bivens and proceeds to address the issue of qualified immunity. See

Wood v. Moss, 572 U.S. 744, 757, 764 (2014) (assuming without deciding that Bivens

extends to First Amendment claims and holding agents were entitled to qualified

immunity); Farah v. Weyker, 926 F.3d 492, 503 (8th Cir. 2019) (“Even if we assume that

Yassin’s unlawful-arrest claim is viable under Bivens, however, Weyker still claims that

she is entitled to qualified immunity .... So we must address the two familiar qualified-

a *

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immunity questions: assuming Yassin’s allegations are true, did Weyker violate her

constitutional rights? And if so, were those rights clearly established? ) (cleaned up).

Legal Standard for Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability

for civil damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Wood, 572 U.S. at 757 (cleaned up); see also Ziglar v.

Abbasi, 137 S. Ct. 1843, 1866-67 (2017) (discussing qualified immunity and citing

cases); Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of qualified

immunity protects government officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.”). “[Defendants seeking dismissal under Rule

12(b)(6) based on an assertion of qualified immunity ‘must show that they are entitled to

qualified immunity on the face of the complaint.’” Carter v. Huterson, 831 F.3d 1104,

1107 (8th Cir. 2016) (quoting Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir.

2005)). The pleading standard under Iqbal and Twombly (see supra Section II.A) applies.

Wood, 572 U.S. at 757-58.30

Defendants present this issue as one of jurisdiction under Rule 12(b)(1), though

they do not appear to cite any authority holding that this is the correct standard. (See Dkt.

55 at 22-23.) As another court in this District recently observed, “A district court within

the Eighth Circuit considered this question, and its ‘independent review of the relevant

case law demonstrates that courts within the Eighth Circuit do not treat qualified

immunity as a subject-matter jurisdiction issue, but rather as a Rule 12(b)(6) issue.

Braun v. Walz, No. CV 20-333 (DSD/BRT), 2021 WL 268321, at *11 (D. Minn. Jan. 27,

2021) (quoting Rohlfing v. City of St. Charles, No. 12-CV-1670 (SPM), 2013 WL

*•

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Analysis of Individual Capacity Access to Courts Claim Against Hiller

The Court concluded in Section H.B that Biron has failed to plausibly allege an

access to courts claim, or alternatively that summary judgment should be granted for

Defendants, because (1) the specific instance of injury alleged—denial of the motion to

amend in Biron v. Sawyer—resulted from Biron’s conduct, not Defendants denial of an

opportunity to litigate that claim, and (2) she has not alleged any other prejudice as to a

non- frivolous and arguably meritorious claim relating to her sentence or conditions of

confinement. See White, 494 F.3d at 680. Consequently, Biron has not plausibly alleged

a violation of a statutory or constitutional right and thus has not met the first prong of

Wood. See Westv. Whitehead, No. CIV 06-4193,2008 WL 895937, at *3 (D.S.D. Mar.

31, 2008) (“The allegations and undisputed facts establish no constitutional violation with

regard to the access to the courts claim and the defendants are entitled to qualified

immunity and dismissal of this claim also.”) (granting Rule 12(b)(6) motion).

Even if Biron’s allegations were enough to allege a violation of a constitutional

right, the Court further concludes that any such right as asserted by Biron was not

“clearly established.” The U.S. Supreme Court has defined this requirement as follows:

“Clearly established” means that, at the time of the officer’s conduct, the law

was “‘sufficiently clear’ that every ‘reasonable official would understand that

what he is doing’” is unlawful. In other words, existing law must have placed

the constitutionality of the officer’s conduct “beyond debate.” This

demanding standard protects “all but the plainly incompetent or those who

knowingly violate the law.”

To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent. The rule must be “settled law,” which

1789269, at *2 (E.D. Mo. Apr. 26, 2013)), R.&R. adopted, 2021 WL 1171693 (D. Minn.

Mar. 29, 2021).

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means it is dictated by “controlling authority” or “a robust ‘consensus of

cases of persuasive authority.”’ It is not enough that the rule is suggested by

then-existing precedent. The precedent must be clear enough that every

reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply. Otherwise, the rule is not one that “every reasonable

official” would know.

The “clearly established” standard also requires that the legal principle

clearly prohibit the officer’s conduct in the particular circumstances before

him. The rule’s contours must be so well defined that it is “clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted.” This requires a high “degree of specificity.” We have

repeatedly stressed that courts must not “define clearly established law at a

high level of generality, since doing so avoids the crucial question whether

the official acted reasonably in the particular circumstances that he or she

faced.” A rule is too general if the unlawfulness of the officer’s conduct

“does not follow immediately from the conclusion that [the rule] was firmly

established.”

D.C. v. Wesby, 138 S. Ct. 577, 589-90 (2018) (citations omitted).

The Court concludes that Biron’s allegations do not preclude application of

qualified immunity because they do not identify any controlling authority or show a

robust consensus of cases of persuasive authority that would clearly prohibit Hiller s

conduct under the particular circumstances of this case. This case involves prison

operations in the midst of a novel coronavirus pandemic that, as Biron herself alleges, is

the reason why the BOP and FCI-Waseca implemented restrictions on inmate activities

and movement, including access to the ELL and typewriters. Biron has not identified any

authority indicating that prison officials cannot implement restrictions along the lines of

those implemented at FCI-Waseca—which still permitted some access to the ELL and

permitted inmates to pursue their cases using handwritten materials. The only authorities

she cites—Bounds and Lewis—provide no more than the general principle that, as Biron

states,” [t]he right of inmate access to the courts is well-established.” (Dkt. 69 at 29-30.)

* *

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This is not specific enough. The question is not whether the general right of inmate

access to the courts was well-established, the question is whether every reasonable

official in Hiller’s “particular circumstances”—that is, a pandemic involving a previously

unknown virus—“would understand that what [they are] doing”—restricting inmate

activity and movement in an effort to prevent the spread of that virus—“is unlawful.”

See D.C. v. Wesby, 138 S. Ct. at 589-90 (cleaned up). Biron cites no authority that comes

close to establishing as much.

Accordingly, the Court concludes that to the extent Biron has stated individual

capacity claims against Hiller, Hiller is entitled to qualified immunity. There was no

right to access a law library and a typewriter, with the level of access, timely updates, and

resources that Biron contends the law library ought to have, that was clearly established

at the time of the challenged conduct.31

Claims for Violation of Regulations

Biron’s Amended Complaint includes allegations that “Defendants’ failure to

allow reasonable access to an adequate law library,” “failure to provide access to a

typewriter to prepare legal documents,” and “ad hoc policy and practice of returning

The Court notes that Biron at times seems to base her claims on the motivations of

Defendants. (See, e.g., Dkt. 69 at 24 (“Defendant Hiller and her cohorts denied Ms.

Biron sufficient access not because other inmates had requested access, or because it

could not be done safely, but because they disagreed with Ms. Biron’s litigation

strategy.”); id. at 30 (“Hiller did not deny access because of health and safety, but

because she, in her expert legal opinion, did not feel Ms. Biron’s motion to amend was a

necessary step in the litigation ....”).) Even if these allegations were in the Amended

Complaint (and they are not), Biron has not alleged (or identified) any factual content

that would allow the Court to find such allegations plausible, and they are not entitled to

weight on a Rule 12(b)(6) motion. See Iqbal, 556 U.S. at 662.

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incoming inmate mail to the post office unopened because of the exterior appearance of

the envelope violates the FBOP’s established regulations.” (Dkt. 5 || 48-50.) Although

the nature of these claims (or their legal basis) is unclear from the Amended Complaint,

the allegations quote several regulations regarding legal materials and preparing legal

documents (Dkt. 5 1fl[ 33-35 (quoting portions of 28 C.F.R. §§ 543.10, 543.11 (appears to

quote 543.11(a)), 543.11(h)) and mail procedures {id.

36-37 (quoting portions of 28

C.F.R. §§ 540.12, 540.14)). She alleges that the ELL “is inadequate under the

Constitution and federal regulations” based on several alleged deficiencies. {Id.

29-

30.) And in her claims, Biron invokes the Administrative Procedure Act (“APA”) when

she states that the BOP’s “Central Office’s response condoning Defendants’ failure to

provide reasonable access to an adequate law library and typewriter” and “to open and

inspect all general correspondence and condoning the return of unopened mail to the post

office because of the exterior appearance of the envelope” both “constitute[] final agency

action pursuant to 5 U.S.C. § 704.” {Id.

46-47.)

To the extent Biron bases constitutional claims on alleged violations of BOP

policies, or regulations, those claims would fail. “‘[TJhere is no federal constitutional

liberty interest in having ... prison officials follow prison regulations.’” HernandezPacheco v. Fisher, No. CIV. 10-2088 JRT/TNL, 2011 WL 4929417, at *7 (D. Minn.

Sept. 12, 2011) (quoting Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003)), R.&R.

adopted, 2011 WL 4808187 (D. Minn. Oct. 11, 2011); see also Jackson v. Gutzmer, No.

CV 16-3831 (JRT/BRT), 2019 WL 952182, at *6 (D. Minn. Feb. 27, 2019) (“‘[A]

violation of prison regulations in itself does not give rise to a constitutional violation.’”)

•

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(quoting Bonner v. Fed. Bureau ofPrisons, 196 F. App’x 447, 448 (8th Cir. 2006)), off d,

784 F. App’x 472 (8th Cir. 2019). To the extent Biron bases any constitutional claim on

violations of BOP regulations or policies, the Court recommends their dismissal.32

However, Biron, in her response to the Motion to Dismiss, stated that these are

Accardi claims, brought under the APA, challenging the BOP’s failure to follow their

own regulations. (Dkt. 69 at 7-9.) Defendants argue that Biron has failed to state an

Accardi claim, because she “failed to demonstrate how FCI Waseca’s policies .. . violate

any governing regulation.” (Dkt. 72 at 4; see also id (“Biron failed to explain how FCI

Waseca violated those regulations, which each allow for variation and flexibility. ...

[Mjerely identifying applicable regulations (which themselves provide for broad

authority) is not the same as stating a valid claim.”).)33

Defendants initially argued, in the alternative, that summary judgment was

appropriate as to Biron’s claims related to the mail policy—understood as alleging that

the policy interfered with Biron’s right of access to the courts—because the “policy

passes constitutional muster under Turner v. Safely.” (Dkt. 55 at 30-31 (citing 482 U.S.

78, 89-90 (1987)); see also id. at 33 (“FCI Waseca’s mail policy, which requires general

correspondence to be communicated on white paper and addressed in ink or by stamp,

places a minimal burden on inmate correspondence and does not violate Biron’s

constitutional rights under a Turner analysis.”).) Given Biron’s response, which does not

conduct a Turner analysis and instead characterizes her claims related to regulations as

Accardi claims, i.e., claims for violations of regulations, not claims that the regulations

impinge on her constitutional rights, the Court need not address Defendants’ argument

under Turner.

Biron argues that Defendants “failed to acknowledge and have, therefore, forfeited

any affirmative defense to Ms. Biron’s claims that they have violated their own agency

regulations regarding inmate legal activities and incoming general correspondence.”

(Dkt. 69 at 7-8 (citations omitted).) The Court finds that the general references to “ final

agency action pursuant to 5 U.S.C. § 704” and violations of “FBOP’s established

regulations” did not sufficiently put Defendants on notice that Biron was making Accardi

claims such that the Court would find Defendants forfeited any defense to those claims.

As Defendants noted, Biron only identified her claims as Accardi claims in her response

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Legal Standard for Accardi Claims

A case from the District of Columbia recently summarized “the Accardi doctrine”

as follows:

This doctrine arises from a 1954 Supreme Court decision, United States ex

rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), in which the Court vacated

a deportation order because it was issued without procedures that conformed

to the relevant agency regulations. The Court stated that “Regulations with

the force and effect of law supplement the bare bones” of federal statutes,

and that, even in areas of expansive discretion, agencies must follow their

own “existing valid regulations.” Id. at 266, 268. Two decades later, in

Morton v. Ruiz, 415 U.S. 199,232 (1974), the Supreme Court returned to the

doctrine—this time striking down a Bureau of Indian Affairs benefits

determination because it did not comply with the procedures set forth in the

agency’s internal manual, In doing so, the Court noted that Accardi's

teachings apply with particular force in those cases in which “the rights of

individuals are affected,” stating that “it is incumbent upon agencies to

follow their own procedures... even where [they] are possibly more rigorous

than otherwise would be required.” Id. at 235.

This Circuit and district courts here have subsequently invoked the doctrine,

noting that “Accardi has come to stand for the proposition that agencies may

not violate their own rules and regulations to the prejudice of others.”

Damus v. Nielsen, 313 F. Supp. 3d 317, 335-36 (D.D.C. 2018) (some citations omitted);

accord Spencer v. Rios, No. 18-CV-2639 (MJD/TNL), 2019 WL 9313598, at 5 (D.

Minn. Apr. 23, 2019) (“The requirement that an agency be barred from taking action

inconsistent with its internal regulations when doing so would affect individuals rights

has been referred to by some courts as the Accardi doctrine. ), R.&R. adopted, (D. Minn.

June 5, 2019); Woodv. Smith, No. 2:17-CV-137-JLH-BD, 2018 WL 1613799, at *3

(E.D. Ark. Mar. 12, 2018) (quoting/?? re U.S., 197 F.3d 310, 315 (8th Cir. 1999), and

brief (se

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