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.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BALDOCK , and PHILLIPS , Circuit Judges.

________________ _________________ Jeffrey Simmermaker, a federal prisoner pr oceeding pro se, appeals the district court’s dismissal of his complaint asserting claims related to hi s prison’s response to the COVID-19 pandemic. Exercising jurisd iction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 26, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1123 Document: 010110637205 Date Filed: 01/26/2022 Page: 12 I. Background The operative complaint decries the re sponse by the Federal Correctional Institution located in Floren ce, Colorado (FCI Florence) to the COVID-19 pandemic, including its alleged failure to follow CDC guidelines regarding so cial distancing and its implementation of a policy that allege dly deprives inmates’ access to musical instruments. As a legal basis for redr ess, the complaint invokes 18 U.S.C. §§ 3626 and 4042, “generally referenc es the First Amendment, a nd uses language associated with the Eighth and Fifth Amendment doctr ines of deliberate indifference, due process, and equal protect ion.” R. at 283. The district court dismissed the compla int under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. It found that §§ 3626 and 40 42 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 Simmermak er’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 comp laint 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 offici als 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 a ny practice at FCI Appellate Case: 21-1123 Document: 010110637205 Date Filed: 01/26/2022 Page: 23 Florence was atypical in the prison setting. And the court held that the complaint failed to state a cognizable equal-prot ection claim because it did not allege Simmermaker is similarly situated with inma tes who have been tr eated differently. Simmermaker appeals the district cour t’s dismissal of his complaint.
II. Discussion We review de novo a district cour t’s dismissal for failure to state a claim. VDARE Found. v. Ci ty of Colo. Springs , 11 F.4th 1151, 1169 (10th Cir. 2021). Because Simmermaker is proceedi ng 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 sufficien t 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 suffici ent 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 substa ntially the reasons gi ven by the district

court. Appellate Case: 21-1123 Document: 010110637205 Date Filed: 01/26/2022 Page: 34 III. Conclusion We affirm the district court’s en try 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 Appellate Case: 21-1123 Document: 010110637205 Date Filed: 01/26/2022 Page: 4