UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JEFFREY R. SIMMERMAKER, 

 Plaintiff - Appellant, 

v. 

DONALD TRUMP; UNITED STATES 

ATTORNEY GENERAL; UNITED 

STATES OF AMERICA; FEDERAL 

BUREAU OF PRISONS; FEDERAL 

CORRECTIONAL INSTITUTION-FCI 

FLORENCE; CARTER, Warden-FCI 

Florence, 

 Defendants - Appellees. 

No. 21-1123 

(D.C. No. 1:20-CV-01671-KMT) 

(D. Colo.) 

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ORDER AND JUDGMENT*

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Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges. 

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Jeffrey Simmermaker, a federal prisoner proceeding pro se, appeals the district 

court’s dismissal of his complaint asserting claims related to his prison’s response to 

the COVID-19 pandemic. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

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

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 26, 2022

Christopher M. Wolpert 

Clerk of Court

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2 

I. Background 

The operative complaint decries the response by the Federal Correctional 

Institution located in Florence, Colorado (FCI Florence) to the COVID-19 pandemic, 

including its alleged failure to follow CDC guidelines regarding social distancing and 

its implementation of a policy that allegedly deprives inmates’ access to musical 

instruments. As a legal basis for redress, the complaint invokes 18 U.S.C. §§ 3626 

and 4042, “generally references the First Amendment, and uses language associated 

with the Eighth and Fifth Amendment doctrines of deliberate indifference, due 

process, and equal protection.” R. at 283. 

 The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6) for 

failure to state a claim. It found that §§ 3626 and 4042 do not create a right of 

action. To the extent the complaint could be construed to bring constitutional claims, 

the court found the complaint failed to adequately allege any constitutional violation. 

The district court dismissed Simmermaker’s First Amendment allegations in 

part because the complaint did not allege Simmermaker “plays a musical instrument, 

or that his own freedom of expression has been curtailed by the alleged depravation,” 

R. at 287, and in part because the complaint did not allege the prison’s policy 

limiting access to musical instruments was unrelated to a legitimate penological 

interest. It dismissed Simmermaker’s Eighth Amendment claim because the 

complaint did not allege prison officials knowingly disregarded the risks from 

COVID-19. The court determined that the complaint did not state a plausible Fifth 

Amendment due-process violation because it did not allege any practice at FCI 

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Florence was atypical in the prison setting. And the court held that the complaint 

failed to state a cognizable equal-protection claim because it did not allege 

Simmermaker is similarly situated with inmates who have been treated differently. 

 Simmermaker appeals the district court’s dismissal of his complaint. 

II. Discussion 

 We review de novo a district court’s dismissal for failure to state a 

claim. VDARE Found. v. City of Colo. Springs, 11 F.4th 1151, 1169 (10th Cir. 

2021). Because Simmermaker is proceeding pro se, “we liberally construe his 

filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 

(10th Cir. 2013). Our “broad reading of [Simmermaker’s] complaint does not relieve 

[him] of the burden of alleging sufficient facts on which a recognized legal claim 

could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

 The district court’s reasoned decision explains why Simmermaker’s complaint 

fails to allege facts sufficient to state a claim. And Simmermaker does not point to 

any facts alleged in his complaint that would undermine the district court’s 

reasoning. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 

2015) (“The first task of an appellant is to explain to us why the district court’s 

decision was wrong.”). We affirm for substantially the reasons given by the district 

court. 

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III. Conclusion 

We affirm the district court’s entry of final judgment. We grant 

Simmermaker’s motion to proceed on appeal without prepayment of costs or fees. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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