                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 11 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ERNEST JACK HILL, III,

                Plaintiff-Appellant,

    v.                                                   No. 02-1561
                                                    (D.C. No. 00-RB-2511)
    MICHAEL V. PUGH, Warden;                              (D. Colo.)
    G. L. HERSHBERGER, Regional
    Director, B.O.P.; KATHLEEN
    HAWK-SAWYER, Director, B.O.P.,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Ernest Jack Hill, a prisoner in the general population of the United States

Penitentiary, Administrative Maximum, Florence, Colorado (ADX) appeals the

district court’s dismissal of his civil rights action. We affirm.

      In his amended complaint, Mr. Hill alleged jurisdiction under        Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics        , 403 U.S. 388 (1971) and

28 U.S.C. § 1331, and asserted that defendants have subjected him to unnecessary

solitary confinement and sensory deprivation in disregard of his history of mental

illness. 1 Mr. Hill claimed that: (1) his conditions of confinement and the

facility’s lack of adequate psychiatric care violated his Eighth Amendment right

to be free from cruel and unusual punishment; (2) the same circumstances

violated his due-process and equal-protection rights under the Fifth Amendment;

and (3) defendants failed to comply with Federal Bureau of Prisons’ regulations,

in contravention of the Administrative Procedures Act (APA).        2
                                                                        He sought money




1
       We refer to Mr. Hill’s complaint, R., Vol. 1, Doc. 22; his addendum to
complaint, id. , Doc. 23; and his clarification and supplement, id., Vol. 2, Doc. 55,
as the “amended complaint.”
2
      The amended complaint also advanced a claim of retaliation for seeking
redress in the courts and claims under 42 U.S.C. § 1983, the International
Covenant on Civil and Political Rights, and the United Nations Convention
Against Torture. On appeal, Mr. Hill does not raise any meaningful arguments
concerning these claims and, as a consequence, we do not address them.

                                          -2-
damages and injunctive relief. On appeal, Mr. Hill challenges the district court’s

multiple reasons for granting defendants’ motion to dismiss.   3



      We first address Mr. Hill’s procedural attacks on the district court’s denial

of his motion to amend and the basis for its rulings under Fed. R. Civ. P.

12(b)(6). The resolution of these issues affects the scope of our review of his

remaining claims.

      With his motion to amend, Mr. Hill sought to substitute a claim under the

Federal Tort Claims Act (FTCA) for his APA claim, to supply further allegations

concerning defendants’ personal participation in Mr. Hill’s mental-health care,

and to name additional defendants. We review the district court’s decision to deny

leave to amend a complaint for abuse of discretion.      Ben Ezra, Weinstein, & Co.

v. America Online Inc ., 206 F.3d 980, 987 (10th Cir. 2000).

      Concerning the addition of an FTCA claim, we note that Mr. Hill filed his

amended complaint before he had satisfied the FTCA requirement of exhaustion

of administrative remedies.    See 28 U.S.C. § 2675(a). In FTCA actions,

      as a general rule, a premature complaint cannot be cured through
      amendment, but instead, plaintiff must file a new suit. Allowing
      claimants generally to bring suit under the FTCA before exhausting
      their administrative remedies and to cure the jurisdictional defect by
      filing an amended complaint would render the exhaustion


3
      In a lengthy and thoughtful ruling, the magistrate judge recommended
granting defendants’ motion to dismiss. The district court conducted a de novo
review, then adopted the magistrate judge’s recommendation.

                                           -3-
       requirement meaningless and impose an unnecessary burden on the
       judicial system.

Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (quotation and citation

omitted). The district court did not abuse its discretion in denying Mr. Hill’s

motion to add an FTCA claim.

       Further, the district court denied the motion to amend on grounds of

untimeliness and undue delay. “Where [a] party seeking amendment knows or

should have known of the facts upon which the proposed amendment is based but

fails to include them in the original complaint, the motion to amend is subject to

denial.” Parker v. Champion , 148 F.3d 1219, 1222 (10th Cir. 1998) (alteration in

original, quotation omitted). The denial of Mr. Hill’s motion to amend was well

within the district court’s discretion, particularly in light of its liberality in

accepting Mr. Hill’s addendum to complaint and his clarification and supplement

of the complaint.

       Thus, the claims, allegations, and defendants included only in Mr. Hill’s

motion to amend have no part in this court’s review. As a consequence, and as

Mr. Hill essentially concedes, he has no valid FTCA claim for defendants’ alleged

disregard of prison regulations or Eighth Amendment claim relating to allegedly

inadequate mental-health care.

       The second procedural matter is Mr. Hill’s contention that the district court

considered evidentiary matters outside the amended complaint and, therefore, it

                                            -4-
should have converted defendants’ dismissal motion into a summary judgment

motion. See Fed. R. Civ. P. 12(b). This argument is based entirely on a footnote

in the court’s discussion of defendants’ Rule 12(b)(6) motion referring to

information presented during a hearing on Mr. Hill’s motion for a temporary

restraining order.   See R., Vol. 5, Doc. 201, at 25, n.6.

       “A motion to dismiss for failure to state a claim upon which relief can be

granted must be converted into a motion for summary judgment whenever the

district court considers matters outside the pleadings.”     Lowe v. Town of Fairland ,

143 F.3d 1378, 1381 (10th Cir. 1998). “Reversible error may occur . . . if the

district court considers matters outside the pleadings but fails to convert the

motion to dismiss into a motion for summary judgment.”         Id. Nevertheless,

a district court’s consideration of matters outside the pleadings may be harmless

if the dismissal can be justified under Rule 12(b)(6) without reference to matters

outside of the pleadings.   Id. In evaluating the district court’s Rule 12(b)(6)

rulings, therefore, this court is confined to the allegations in Mr. Hill’s amended

complaint.

       Having resolved Mr. Hill’s preliminary issues, we next consider the

sufficiency of his complaint, reviewing de novo the district court’s dismissals

under Rule 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(2) for lack

of personal jurisdiction, and Rule 12(b)(6) for failure to state a claim for which


                                             -5-
relief may be granted.    Soma Med. Int’l v. Standard Chartered Bank,   196 F.3d

1292, 1295 (10th Cir. 1999) (concerning dismissals under Rule 12(b)(2));

Ordinance 59 Ass’n v. United States Dep’t of Interior Sec’y,    163 F.3d 1150, 1152

(10th Cir. 1998) (concerning dismissals under Rule 12(b)(1) and 12(b)(6)).

Because Mr. Hill is proceeding pro se, we construe his pleadings liberally.

Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam).

       “‘Jurisdiction to resolve cases on the merits requires both authority over

the category of claim in suit (subject-matter jurisdiction) and authority over the

parties (personal jurisdiction), so that the court’s decision will bind them.’”

Gadlin v. Sybron Int’l Corp ., 222 F.3d 797, 799 (10th Cir. 2000) (quoting

Ruhrgas AG v. Marathon Oil Co ., 526 U.S. 574, 577 (1999)). “‘[T]here is no

unyielding jurisdictional hierarchy’ requiring federal courts to sequence one

jurisdictional issue before the other.”   Id. (quoting Ruhrgas AG , 526 U.S. at 578).

       In this case, the district court first examined whether it had personal

jurisdiction over nonresident defendants G. L. Hershberger, the Regional Director

for the North Central Region of the Bureau of Prisons in Kansas City, Kansas,

and Katherine Hawk-Sawyer, the Director of the Federal Bureau of Prisons,

whose office is in Washington, D.C. Jurisdictional requirements are satisfied if,

“after reviewing the defendant[s’] interactions and connections with the forum

state, the court can conclude” that defendants “purposefully availed [themselves]


                                           -6-
of the protection and benefits of the laws” of Colorado, the forum state.       United

States v . Botefuhr, 309 F.3d 1263, 1272 (10th Cir. 2002) (quotation omitted).

“[T]he mere foreseeability of causing injury in another state” is insufficient to

establish the required contacts.   Trierweiler v. Croxton & Trench Holding Corp       .,

90 F.3d 1523, 1534 (10th Cir. 1996) (citing         Burger King Corp. v. Rudzewicz,

471 U.S. 462, 474 (1985)).

       Mr. Hill’s amended complaint alleges that Mr. Hershberger and

Ms. Hawk-Sawyer have overall responsibility for Bureau of Prisons’ operations in

Colorado and that Mr. Hershberger, with the consent of Ms. Hawk-Sawyer, had

authority over assignment of prisoners to ADX. It also alleges Mr. Hill and his

attorney have sent both Mr. Hershberger and Ms. Hawk-Sawyer administrative

grievances and letters warning of the potential detrimental effects of ADX

placement. This alleged conduct falls far short of the purposeful availment

necessary to establish jurisdiction over defendants Hershberger and

Hawk-Sawyer. It is not reasonable to suggest that federal prison officials may be

hauled into court simply because they have regional and national supervisory

responsibilities over facilities within a forum state. The district court properly

dismissed without prejudice all claims against these two defendants.        4




4
     The district court’s personal jurisdiction ruling relieved Ms. Hawk-Sawyer
and Mr. Hershberger from potential liability to Mr. Hill in a Colorado forum. The
                                                                     (continued...)

                                              -7-
       Next, the district court analyzed its subject matter jurisdiction and

determined that Mr. Hill’s claims for money damages against defendants in their

official capacities were barred by the doctrine of sovereign immunity. As the

court recognized, it is well established that federal employees sued in their

official capacities are immune from a      Bivens suit. See, e.g., Hatten v. White,

275 F.3d 1208, 1210 (10th Cir. 2002). Therefore, these claims were properly

dismissed for lack of subject matter jurisdiction.

       Mr. Hill also sought to evade the sovereign immunity bar by means of

a claim under the APA, which generally waives sovereign immunity in agency

review actions seeking equitable relief.     See United Tribe of Shawnee Indians v.

United States , 253 F.3d 543, 550 (10th Cir. 2001). His amended complaint

alleges that, by originally assigning him to ADX and subsequently failing to

change his assignment, defendants violated bureau of prisons’ policy.

Specifically, he charges that defendants ignored a program statement providing

that ADX should be reserved for inmates who pose a serious threat to others and

who are not currently diagnosed as suffering from serious psychiatric illnesses.




4
 (...continued)
discussion of Mr. Hill’s claims in the following text, therefore, is primarily
addressed to the sufficiency of the case against remaining defendant Mr. Pugh.
However, the analysis is equally applicable to the other two defendants.

                                             -8-
       Bureau of Prisons’ program statements, however, are “internal agency

guidelines” that are not “subject to the rigors of the [APA], including public

notice and comment.”     Jacks v. Crabtree , 114 F.3d 983, 985 n.1 (9th Cir. 1997)

(quotation omitted); see Reno v. Koray , 515 U.S. 50, 61 (1995) (describing a

bureau of prisons program statement as an “internal agency guideline . . . akin to

an ‘interpretive rule’ that ‘do[es] not require notice and comment’”) (quoting

Shalala v. Guernsey Mem’l Hosp      ., 514 U.S. 87, 99 (1995)). “Whether or not” the

Bureau of Prisons makes its program statements known, they “create entitlements

(meaning something that may be enforced to prevent substantive transgressions)

only if adopted in one of the ways the APA prescribes . . . .”    Miller v. Henman,

804 F.2d 421, 426 (7th Cir. 1986). Because Mr. Hill does not allege that the

program statement at issue was adopted under APA procedures, the district court

properly dismissed the APA claim.

       After resolving the above issues relating to jurisdiction and sovereign

immunity, the district court turned to the question of whether the amended

complaint stated a claim upon which relief can be granted.       See Rule 12(b)(6).

Mr. Hill’s first substantive contention is that his placement and retention in ADX

violate his due process rights.

       We are unable to discern a possible due process violation arising from

Mr. Hill’s classification. Prisoners are not entitled to any “particular degree of


                                             -9-
liberty.” Templeman v. Gunter , 16 F.3d 367, 369 (10th Cir. 1994). Further, a

review of the facts alleged in the complaint shows that, notwithstanding

Mr. Hill’s rhetoric, his placement does not impose an “atypical, significant”

hardship upon him in relation to the ordinary incidents of prison life.      Sandin v.

Conner , 515 U.S. 472, 485 (1995).

       Additionally, this situation does not give rise to an equal-protection

violation. Mr. Hill alleges that, as an inmate in the ADX general population, he is

similarly situated to inmates placed in the ADX control unit for disciplinary

reasons, but that he is not allowed a hearing comparable to the one afforded

inmates in the control unit.    See 28 C.F.R. § 541.43 (setting out hearing procedure

for inmates recommended for placement in a control unit). Because the

classification of prisoners based upon their situs of incarceration does not employ

a suspect class or burden a fundamental right, it “is accorded a strong

presumption of validity.”      Heller v. Doe ex rel. Doe , 509 U.S. 312, 319 (1993).

The only proper judicial inquiry is whether the challenged classification bears

a rational relationship to a legitimate penological concern.      See Shifrin v. Fields,

39 F.3d 1112, 1114 (10th Cir. 1994).

       As Mr. Hill has acknowledged, he was placed in ADX for his commission

of bank fraud, wire fraud, and money laundering offenses while imprisoned in

another facility on earlier charges. The amended complaint states that, in


                                            -10-
sentencing Mr. Hill, the trial court recommended to the Bureau of Prisons that

“the defendant be . . . held under the most restrictive environment possible, with

limited access to visitors, telephones and other inmates.” R., Vol. 1, Doc. 22

at ¶ 36. The trial court’s statement provides a rational basis for the difference in

hearing opportunities between Mr. Hill’s prison classification and another

inmate’s disciplinary assignment to the ADX control unit.

       Finally, we measure Mr. Hill’s cruel and unusual punishment allegations

against prison officials’ Eighth Amendment duty to maintain “humane conditions

of confinement,” including “adequate food, clothing, shelter, and medical care.”

Farmer v. Brennan , 511 U.S. 825, 832 (1994). A plaintiff claiming a violation of

the Eighth Amendment must satisfy both an objective test (whether the conditions

can be considered cruel and unusual) and a subjective test (whether the

defendants acted with a culpable state of mind).       Wilson v. Seiter , 501 U.S. 294,

298, 303 (1991).

       The objective component of the Eighth Amendment test requires allegations

that an inmate was deprived of “the minimal civilized measure of life’s

necessities.” Rhodes v. Chapman , 452 U.S. 337, 347 (1981). “To the extent that

[an inmate’s] conditions are restrictive and even harsh, they are part of the

penalty that criminal offenders pay for their offenses against society.”      Id. “Mere

‘inactivity, lack of companionship and a low level of intellectual stimulation do


                                            -11-
not constitute cruel and unusual punishment.’”   Caldwell v. Miller , 790 F.2d 589,

600-01 n.16 (7th Cir. 1986) (quoting   Bono v. Saxbe , 620 F.2d 609, 614 (7th Cir.

1980)).

      We cannot conclude that Mr. Hill’s Eighth Amendment allegations state a

claim upon which relief may be granted. He contends that ADX conditions are

cruel and unusual in that he is isolated in his cell twenty-three hours a day for

five days a week and twenty-four hours the remaining two days. He asserts that

the resulting sensory deprivation amounts to cruel and unusual punishment. He

admits, however, that “his minimal physical requirements - food, shelter, clothing

and warmth” have been met. R., Vol. 1, Doc. 22, at ¶ 17. The situation described

in the amended complaint shows neither an “unquestioned and serious deprivation

of basic human needs,” Rhodes , 452 U.S. at 347, nor intolerable or shocking

conditions, id. at 348.

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.


                                                     Entered for the Court



                                                     Michael W. McConnell
                                                     Circuit Judge




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