UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ ALTON DAVIS, Plaintiff - Appellant,

v. FEDERAL BUREAU OF PRISONS; CHARELE SAMUELS; ADX PENITENTIARY - MAX; DAVID B. BERKEBILE; T. HALL; CHRISTOPHER SYLISVOLL; PATRICIA RANGEL; R. TURNER; WILLIAM TRUE; K. HALILIA; M. SMITH; FRANK CORDOVA; J. OL IVER; ADX SUPERMAX PRISON; B. TRUE; C. SYLISOLL; P. RANGEL; F. CORDOVA, Defendants - Appellees. No. 18-1477 (D.C. No. 1:15-CV -00884-WJM-NRN) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before MATHESON , PHILLIPS , and CARSON , Circuit Judges.

_________________________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 9, 2020 Christopher M. Wolpert Clerk of Court2 Alton Davis, a federal pr isoner proceeding pro se, 1 appeals from the district court’s dismissal of his Bivens action under Federal Rule of Civil Procedure 12(b)(1) and (6). 2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. BACKGROUND A jury convicted Mr. Davis of conspi ring and attempting to commit Hobbs Act robberies of suspected drug dealers, using firearms and causing two deaths in relation to those attempted robberies, and conspiring to distribute a nd possess with intent to distribute more than 100 k ilograms of marijuana. See United States v. Davis , 689 F.3d 179, 181-83 (2d Cir. 2012) (upholding judgment and deta iling underlying facts). The district court sentenced Mr. Davis to concurrent life senten ces, and he is now incarcerated at the United States Peniten tiary, Administrative Maximum (“ADX”) in Florence, Colorado. Shortly after his conviction, the Fe deral Bureau of Prisons (“BOP”) implemented Special Admi nistrative Measures (“SA Ms”) for Mr. Davis’s

1 Because Mr. Davis is proceeding pr o se, “we construe his pleadings liberally.” Ledbetter v. City of Topeka , 318 F.3d 1183, 1187 (10th Cir. 2003). We make some allowances for deficiencies, such as unfamiliarity with pleading requirements, failure to cite appropriate legal authority, and confusion of legal theories. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). But we “cannot take on the responsib ility of serving as [his] attorney in constructing arguments and searching the record.” Id.

2 The district court stat ed that the action was fi led under 42 U.S.C. § 1983; however, it falls under Bivens v. Six Unknown Agen ts of Federal Bureau of Narcotics , 403 U.S. 388 (1971), becau se Mr. Davis sued federal prison officials, not persons acting “under color of st ate law” as requi red by § 1983. See Doe v. Woodard , 912 F.3d 1278, 128 9 (10th Cir.), cert. denied , 139 S. Ct. 2616 (2019).3 confinement, citing his proclivity for vi olence and his conduct while incarcerated— he attempted to order the murder of two fe deral law enforcement o fficials. Mr. Davis unsuccessfully challenged the SAMs in a pr evious lawsuit, alleging that the SAMs denied him “his right to communicate with family, friends, the pr ess, and attorneys”; “adequate access to the cour ts”; and “adequate access to medical services and treatment for serious medical conditi ons, bladder cancer and diabetes.” Davis v. Holder , No. 12-CV-02122-REB-KMT , 2014 WL 1713429, at *1 (D. Colo. Apr. 23, 2014). The district court dismissed th at case under Rule 12(b)(2) and (6). Id. at *2. The BOP renewed the SAMs restrictions for four years, during which time officials transferred Mr. Da vis to ADX. In September 2014, after the restrictions were terminated, the BOP placed Mr. Davi s on Correspondence Restrictions (“CRs”) under 28 C.F.R. § 540.15 for a six-mont h transition period. Because the BOP deemed him a security risk, the CRs prohibited oral or written communications with anyone other than immediate family memb ers. The BOP removed the CRs in March 2015 and has no plan to reinstate them, acco rding to a sworn declaration by Michael Carr, an associate warden at ADX. See R., Vol. II at 190. Even so, like all ADX inmates, the BOP monitors Mr. Davis’ s communications for safety reasons. Mr. Davis filed this lawsu it, alleging that (1) the CRs imposed on him violated his First, Fourth, Fifth, Eighth, and Fo urteenth Amendment rights; (2) the ADX’s policies violated his First Amendment right s and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-1 to -4, because he is unabl e to attend Muslim prayer services and pray with other Muslim s; and (3) the BOP an d its officials were4 deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. His claims evolved, as di d the named defendant s, and his second amended complaint is now the operative complaint, see R., Vol. II at 107-51. The BOP and the individual defendants file d a series of motions to dismiss, which resulted in the increm ental dismissal of all clai ms against all parties as outlined below. In an order dated March 24, 2016, the district court ruled on the motion to dismiss the original complain t. It found that Mr. Davis’ s claims were not moot under Rule 12(b)(1) because the alleged injurious conduct was in effect for too short of a duration to be litigated fully and there wa s a reasonable expectation of repetition. But it dismissed the claims without prejudi ce under Rule 12(b)(6) fo r failure to state a claim—prompting Mr. Davis to file an amended (and later a second amended) complaint with the court’s permission. In an order dated April 7, 2017, the district court ruled on the motion to dismiss the second amended complaint. Th is time, it held that Mr. Davis’s First Amendment claims were moot under the constituti onal mootness doctrine and dismissed them without prejudice under Rule 12(b)(1) for lack of subject matter jurisdiction. It dismisse d the remaining constitutional claims with prejudice under Rule 12(b)(6) for repeated fa ilure to state a claim. And it dismissed the claims against a former director of the BOP for lack of pe rsonal jurisdiction under Rule 12(b)(2). Only the RFRA clai m against the BOP remained.5 The BOP served written discovery on the RFRA claim, but Mr. Davis failed to respond despite multiple cour t orders directing him to do so. Citing Mr. Davis’s failure to prosecute his ca se, the BOP filed a motion for involuntary dismissal under Federal Rule of Civil Pro cedure 41(b), which the magi strate judge recommended granting. Mr. Davis objected to the magi strate judge’s report and recommendation, but the district court adopted it and dismi ssed the case with pr ejudice in an order dated November 16, 2018. Mr. Davis appeals on two grounds. Firs t, he challenges the district court’s dismissal of the claims relating to the CRs as moot under Rule 12(b)(1). Second, he challenges the dismissal of his RFRA claim under Rule 41(b). DISCUSSION I. The district court did not err in dism issing the constitutional claims relating to the CRs as moot. As discussed above, the dist rict court dismissed the majority of Mr. Davis’s claims as moot under Rule 12(b)(1) in it s April 7, 2017 order after finding that the BOP had removed his CRs in March 2015 and has no plans to reinstate them. The district court based its ruling primarily on a sworn declaration by Associate Warden Carr. We review a dismissal under Rule 12(b)(1) based on constitutional mootness de novo. Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1122 (10th Cir. 2010). We revi ew the district court’s findi ngs of jurisdictional facts for clear error, “view[ing] the evidence in the light most favorable to the district court’s ruling.” Rio Grande Silvery Minnow v. Bureau of Reclamation , 599 F.3d6 1165, 1175 (10th Cir. 2010) (internal quotation marks omitt ed). “A finding is clearly erroneous when although there is eviden ce to support it, the reviewing court on the entire evidence is left with the definite a nd firm conviction that a mistake has been committed.” Id. (internal quotation marks omitted). On appeal, Mr. Davis accuses the associat e warden of lying in his declaration but does not present evidence to contradict th e declaration. Mr. Davis also complains that he never received a memorandum confirming th at ADX had removed the CRs, without explaining why he believes a memo randum is required. Finally, Mr. Davis appears to argue that the BOP has unfairly administered its safe ty-oriented policies and has singled him out for harsher tr eatment than other ADX prisoners when monitoring his communications, mail, and cell activity. We affirm for substantiall y the same reasons stated in the district court’s April 7, 2017 order. See R., Vol. III at 396-97, 400-02. The record sup ports the facts underlying the district court’s jurisdic tional decision, and we see no clear error therein. Furthermore, the district court carefully outli ned the applicable law and correctly explained why these claims do not present a live case or controversy as required by Article III of the Constitution. Our recent decision in Prison Legal News v. Fe deral Bureau of Prisons , 944 F.3d 868 (10th Cir. 2019), bolst ers the district court’s dete rmination that Mr. Davis’s claims are moot. As explai ned above, the associate ward en submitted a declaration stating that the BOP has removed the CRs that Mr. Davis is challenging and has no plans to reinstate them. The district c ourt relied heavily on this declaration in7 determining Mr. Davis’s clai ms are moot, stating that it proves the CRs are no longer in effect and “cannot be reas onably expected to resume.” R., Vol. III at 400-01. Similarly, the prison warden in Prison Legal News submitted a declaration stating that ADX would no longer refuse to distri bute certain publications to inmates—the contested behavior in that ca se. 944 F.3d at 876-77. In upholding the district court’s mootness determination, we reasoned that the declaration showed the BOP had altered the challenged policy such that it would not recur. Id. at 873, 883-84. II. The district court did not abuse its di scretion in dismissing this action under Rule 41(b) for failure to prosecute. In addition, the district court dismisse d Mr. Davis’s RFRA claim (and thus his lawsuit) under Rule 41(b) after he failed to respond to the BOP’s written discovery and to comply with the district court’s or ders directing him to do so. We review a dismissal under Rule 41(b) fo r an abuse of discretion. Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n , 886 F.3d 852, 859-60 (10th Cir. 2018). “An abuse of discretion occurs where a decision is premis ed on an erroneous c onclusion of law or where there is no rational basis in the evidence fo r the ruling.” Planned Parenthood of Kan. v. Andersen , 882 F.3d 1205, 1223 (10th Ci r.) (internal quotation marks omitted), cert. denied , 139 S. Ct. 638 (2018). We discern no abuse of discretion here. Mr. Davis states on a ppeal that he did not respond to the discovery because he did not understand it and he was waiting for the district court to appoin t counsel to assist him; be sides, he was overwhelmed by the number of pending motions. But it is well established that a pa rty’s pro se status8 does not excuse compliance with fundamental court rules, see Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008), and the district court repeatedly reminded Mr. Davis of the severe consequences of n oncompliance. As for legal representation, the district court clearly advised Mr. Davi s there was no guarant ee an attorney would undertake his representation despite a pending appointmen t order, and “[u]ntil that time, Plaintiff [was] responsib le for representing himself in all aspects of this case, including responding to discove ry requests and any related motions.” R., Vol. III at 543. In its November 16, 2018 order, the di strict court painstakingly outlined the chain of events that led to the Rule 41(b) dismissal. It then correctly explained the interplay between Federal Rules of Civi l Procedure 16(f), 37( b)(2)(A), and 41(b), which together allow a district court to dism iss an action if a part y fails to prosecute his case by disobeying a scheduling or other c ourt order. R., Vol. IV at 126. Finally, it carefully applied the factors that a cour t must consider in evaluating whether to dismiss an action, which th is court enumerated in Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992). It found that (1) Mr. Davis’s noncompliance prejudiced the BOP by causing it to expend considerable resources; (2) his failure to prosecute interfered with the ju dicial process; (3) his litigation failures were willful in that he ignored court orders; (4) the district c ourt provided Mr. Davis with advance notice that it could dismiss his case as a sanc tion; and (5) no lesser sanction would be effective. We agree with the district court’s analysis and affirm for substantially the same reasons articulated in that order. See R., Vol. IV at 126-33.9 III. Pending Motions We grant Mr. Davis’s motion for leave to proceed wit hout prepayment of costs and fees but remind him that he is obligat ed to continue making partial payments until the entire fee has been paid. We also grant Mr. Davis’s motion to file his reply brief out of time based on his representation that he placed his reply brief in the prison mail system before the April 11, 2019 deadline; accordingly, th e reply brief filed on April 23, 2019, is accepted for filing. However, we deny his motion to file the twenty-seven exhibits attached to that reply brief. The BOP has established th at many of the exhibits are already part of the record on appeal, such th at it would be duplic ative to file them again. See Aplees’ Resp. to Mot. to File Exhs . at 2-4 (May 13, 2019) (addressing Exhibits 3-6, 8-12, 15, 17-19, 22-23). The BOP also has established that the remaining exhibits were not before the district court, such that it would be inappropriate for this court to consider them on appeal. See id. at 4-6 (addressing Exhibits 1-2, 7, 13-14, 16, 20-21, 24-27). CONCLUSION For the foregoing reasons, we affirm th e judgment of the district court.

Entered for the Court

Joel M. Carson III Circuit Judge