                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

 JAMES T. COLE,

                         Plaintiff,

                         v.                        Case No. 17-cv-02471 (CRC)

 UNITED STATES DEPARTMENT OF
 JUSTICE, et al.,

                         Defendants.

                                      MEMORANDUM OPINION

       Federal inmate James T. Cole seeks to enjoin the Bureau of Prisons’ (“BOP”) plan to

discontinue funding for microwave ovens in federal prisons using profits derived from inmate

trust funds. Compl., ECF 1, ¶ 2. This, he alleges, violates BOP Program Statement 4500.11,

Trust Fund/Deposit Manual (“BOP PS 4500.11”), and “Circular No. 2244 act of Congress,”

which refers to Department of Justice Circular No. 2244, Rules Governing the Control of

Prisoner Funds at the Several Penal and Correctional Institutions (Jan. 1, 1932) (“DOJ Circular

2244”). Id. ¶ 1. Cole alleges that inmates will suffer from arteriosclerosis if they are denied use

of microwaves because many foods purchased in prison commissaries require microwaving to

reduce their saturated fat content. Id. ¶ 6.

       The government moved to dismiss Cole’s pro se complaint under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6) in April 2018. See Mem. Supp. Mot. Dismiss (“MTD”), ECF

No. 11-1. When Cole did not timely respond by August 2018, the Court issued a standard

“Fox/Neal” Order, 1 advising Cole that if he did not respond to the motion to dismiss by October



       1
        See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
1, 2018, the Court may deem the matter as conceded. See Order, ECF No. 13. Cole did not file

an opposition. Instead, he filed a “Motion for Continuance for Discovery to Be Had,” explaining

that while he intends to rebut defendants’ arguments in a lengthy brief, he is unable to do so

without factual development. Mot., ECF No. 14, at 1. He explains that at this point, he has not

had a “reasonabl[e] opportunity to present his defense” because the Court has not issued a

scheduling order or allowed discovery. Id. at 2.

       The Court will deny Cole’s motion because discovery is not available at this stage of the

litigation nor is it necessary. When addressing a motion to dismiss, the Court must take all

factual allegations in the complaint as true and construe them in the plaintiff’s favor. See

Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). Given this well-established

rule, discovery need not occur before the Court decides whether the plaintiff has alleged

sufficient facts to state a claim. Cole cites to this Court’s recent decision in United States v.

$215,587.22, 306 F. Supp. 3d 213 (D.D.C. 2018), as an example of the Court denying a motion

to dismiss in order to allow for further factual development. Mot. at 2. But that is not what

happened in $215,587.22. Rather, as is always the case, the Court first considered the merits of

the motion—that is, whether the plaintiff had adequately stated a claim upon which relief could

be granted. 306 F. Supp. 3d at 217. Only after concluding that the government had done so did

the Court deny the motion and allow the case to proceed along the usual path to discovery. Id. at

216. The Court declines to deviate from the normal sequence of events here.

       Although Cole’s failure to respond permits the Court to treat the motion to dismiss as

conceded, the Court will instead reach the merits. For the reasons that follow, the Court will

grant the government’s motion to dismiss.




                                                   2
       The government has moved to dismiss the complaint for lack of standing, failure to

exhaust his administrative remedies, and failure to state a claim. Assuming Cole fully exhausted

his administrative remedies and has standing to sue, Cole fails to identify any cause of action to

support his claim. 2

       Cole first alleges “a justiciable claim that defendants are violating PS 4500.11.” Compl.

¶ 1. Fatal to this argument, however, is the detail that BOP program statements do not carry

force of law. Instead, the Supreme Court has described BOP program statements as “internal

agency guideline[s], which [are] akin to an ‘interpretive rule,’” rather than rules subject to the

notice-and-comment requirements of the Administrative Procedure Act. Reno v. Koray, 515

U.S. 50, 60–61 (1995) (internal quotation marks, citation, and alterations omitted). Although the

D.C. Circuit has yet to address this question, the Ninth Circuit has held conclusively:

“noncompliance with a BOP program statement is not a violation of federal law.” Reeb v.

Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). As such, Cole does not have a private cause of

action to sue for a violation of non-binding BOP internal guidance.

       Cole next alleges “a justiciable claim that defendants are violating . . . Circular No. 2244

act of Congress.” Compl. ¶ 1. To be sure, as the beneficiaries of the trust fund, inmates do have

a statutory right to seek to enjoin the use of those funds for unauthorized purposes—i.e., those

that are not for the benefit of the inmate population as a whole. See Maydak v. United States,

363 F.3d 512, 521 (D.C. Cir. 2004) (citing Washington v. Reno, 35 F.3d 1093, 1102–03 (6th Cir.




       2
          The Court recognizes its obligation to determine whether it has jurisdiction before
considering the merits. The government has challenged Cole’s standing based on the speculative
nature of the sole injury he asserts: the future onset of arteriosclerosis. But it strikes the Court
that being deprived of the ability to cook or heat food offered to inmates in prison commissaries
is likely a sufficient injury, standing alone, to confer standing. Because this issue was not
briefed, the Court will simply assume for purposes of this motion that Cole has standing.

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1994)). But Cole has not brought a claim under 31 U.S.C. § 1321, the statute that requires BOP

to operate the inmate trust fund “in compliance with the terms of the trust” (which are set out in

DOJ Circular 2244). Even if he had, Cole does not have a statutory right to compel BOP to use

inmate trust funds for a specific purpose, like funding microwaves. See Washington, 35 F.3d at

1104 (explaining that even as “beneficiaries,” “the inmates themselves cannot determine when

distributions from the Fund should be made or for what purpose such distributions should be

made”). The thrust of Cole’s complaint is that the Court should enjoin BOP’s new policy

because “it was not Congress[’s] intent for the B.O.P. to stop the funding of microwaves for the

inmate population.” Compl. at 3. In other words, he does not seek to enjoin an unauthorized use

of the funds; he seeks to compel a particular use of the funds. This he cannot do.

       Accordingly, Cole has failed to state a claim upon which relief may be granted. For the

foregoing reasons, the Court will grant defendants’ motion to dismiss and deny plaintiff’s motion

to permit discovery. A separate order shall accompany this memorandum opinion.




                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date: October 5, 2018




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