RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BOYD N. BOLAND, Magistrate Judge.

This matter arises on Defendant's Motion to Dismiss [Doc. #25, filed 11/20/2013] (the "Motion"). I respectfully RECOMMEND that the Motion be GRANTED.

I. STANDARD OF REVIEW

The plaintiff is proceeding pro se, and I must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

In ruling on a motion to dismiss, the court must accept the plaintiff's well-pleaded allegations as true and must construe all reasonable inferences in favor of the plaintiff. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). The complaint must contain specific allegations sufficient to establish that it plausibly supports a claim for relief. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir. 2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

II. BACKGROUND

The plaintiff is currently incarcerated by the Federal Bureau of Prisons ("BOP") at the United States Prison, Administrative Maximum in Florence, Colorado ("ADX"). He filed his Amended Prisoner Complaint [Doc. #8] (the "Complaint") on July 31, 2013. On August 7, 2013, the court dismissed all claims except the plaintiff's equal protection claim against defendant Warden Berkebile [Doc. #9].

The Complaint contains the following allegations:

1. On March 20, 2012, the plaintiff was transferred from the ADX to the "D/B Unit" at the United States Penitentiary ("USP"), which is a "pre-transfer step-down unit that is a 12 month program for rehabilitation to go back out to" the USP. Complaint, p. 4.1

2. The plaintiff was in the step-down program for 3 ½ months. On July 11, 2012, he and his cell mate received an incident report. They were transferred back to the ADX on July 18, 2012, to await a hearing on the issue. The plaintiff requested a copy of the videotape of the incident to submit as evidence before the Disciplinary Hearing Officer ("DHO"). Id.

3. The DHO hearing was held on July 30, 2012. The DHO found the plaintiff guilty of the charged offense without reviewing the videotape. The plaintiff was sent to ADX administrative segregation. The DHO expunged the incident report issued to the cell mate, and the cell mate was reinstated to the step down program. Id.

4. The plaintiff did not receive a copy of the DHO Report until February 8, 2013, approximately seven months after the hearing. Id. at pp. 6, 8. The plaintiff filed an administrative appeal of the disciplinary conviction. The Regional Director remanded the matter back to the DHO for reconsideration on April 25, 2013. The DHO expunged the disciplinary conviction, but Warden Berkebile has refused to reinstate the plaintiff in the step down program. Id. at p. 8.

5. The plaintiff was treated differently from his cell mate in violation of his equal protection rights. Id.

The plaintiff's only request for relief is that Warden Berkebile reinstate him in the step down program.2 Id. at p. 10.

III. ANALYSIS

The Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend XIV, § 1. The equal protection guarantee applies to the federal government through the Due Process Clause of the Fifth Amendment. Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1152 (10th Cir. 2000). Equal protection mandates that the government shall treat similarly situated persons alike. Id.

The plaintiff alleges that he was not treated the same as his similarly situated cell mate. In Templeman v. Gunter, 16 F.3d 367 (10th Cir. 1994), the plaintiff alleged that he was regressively transferred to administrative segregation in violation of his equal protection rights because he was not treated the same as similarly situated inmates. In upholding the district court's dismissal of the plaintiff's equal protection claim, the circuit court stated:

Id. at 371. See also Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006) (stating that because inmate classification is discretionary, it is not plausible to claim that there are other inmates who are similar in every relevant respect for purposes of equal protection claims).

As in Templeman, it is not plausible that the plaintiff's cell mate was similar to the plaintiff in every relevant respect. To the contrary, both the incident report and the DHO report state that the plaintiff was charged with making alcohol in his cell, and he admitted that the substance was his, not his cell mate's.3

The Complaint does not allege any facts that would invoke the equal protection clause. The Motion should be granted insofar as it seeks dismissal of the plaintiff's equal protection claim.

IV. CONCLUSION

I respectfully RECOMMEND that the Defendant's Motion to Dismiss [Doc. #25] be GRANTED and that the Complaint be DISMISSED.4