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Ajaj v. Federal Bureau of Prisons

United States District Court, D. Colorado

January 17, 2017

AHMAD AJAJ, Plaintiff,
FEDERAL BUREAU OF PRISONS; WARDEN JOHN OLIVER, in his individual capacity; WARDEN DAVID BERKEBILE, in his individual capacity; ASSOCIATE WARDEN TARA HALL, in her individual capacity; RELIGIOUS COUNSELOR GEORGE KNOX, in his individual capacity; and OFFICER D. PARRY, in his individual capacity, Defendants.


          R. Brooke Jackson United States District Judge

         This matter is before the Court on plaintiff's and individual defendants' motions to reconsider portions of the Court's prior order adopting Magistrate Judge Kristen L. Mix's recommendation, see ECF No. 111.[1] See ECF No. 117 (plaintiff's motion); ECF No. 116 (defendants' motion). For the reasons below, the Court DENIES plaintiff's motion but GRANTS defendants' motion.

         I. BACKGROUND

         The background of this dispute has been extensively addressed. See, e.g., ECF No. 97 at 2-9; ECF No. 111 at 2-3. Stated again briefly, this case involves a lawsuit filed on May 11, 2015 by Ahmad Ajaj, a Muslim inmate at the Administrative Maximum Facility (“ADX”) in Florence, Colorado. Mr. Ajaj originally filed this lawsuit purely as a means to compel the government to administer to him his medications before sunrise and after sunset during the Islamic holy month of Ramadan. See ECF No. 1. However, in his amended complaint Mr. Ajaj greatly expanded the scope of this action. See ECF No. 29. He alleged that the Federal Bureau of Prisons (“BOP”) and numerous of its employees had violated his First Amendment rights in several additional ways, as well as his Fifth Amendment right to equal protection and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. Id. He also added a claim under the Federal Tort Claims Act (“FTCA”) against the United States. Id.

         On February 10, 2016 defendant BOP, defendant United States, and the individual named defendants filed separate motions to dismiss Mr. Ajaj's amended complaint. ECF Nos. 63, 64, 65. The Court subsequently referred these motions to Magistrate Judge Kristen L. Mix. ECF No. 82. On August 30, 2016 Magistrate Judge Mix recommended in a sixty-four-page order that this Court grant the United States' motion, and grant in and part and deny in part the remaining two motions to dismiss. ECF No. 97. After de novo review, the Court adopted in full Magistrate Judge Mix's recommendations on October 25, 2016. See ECF No. 111. The Court accordingly dismissed plaintiff's First Amendment claims for damages against the individual BOP employees, his First Amendment claim for an injunction against the BOP based on his original Ramadan allegation, his RFRA claims for damages, and his FTCA claim against the United States.[2]

         On November 21, 2016 both plaintiff and the remaining individual defendants filed motions for partial reconsideration of the Court's order adopting in full Magistrate Judge Mix's recommendations. ECF Nos. 116, 117. These motions have been fully briefed.

         II. ANALYSIS

         After reviewing the parties' motions, the Court finds that it did not err when it dismissed plaintiff's First Amendment claims for damages, but that the Court erred when it held that defendants had waived their argument that plaintiff has no Fifth Amendment cause of action for damages. Reaching that argument now, the Court grants defendants' motion to dismiss those claims.[3] I discuss plaintiff's motion for partial reconsideration first, followed by defendants' motion.

         A. Plaintiff's Motion for Partial Reconsideration.

         Mr. Ajaj's motion for partial reconsideration is “narrow.” ECF No. 117 at 2. He asks this Court to reconsider its dismissal of only two of his implied claims for damages under the First Amendment against the individual defendants-i.e. two of plaintiff's First Amendment “Bivens” claims, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397(1971). These include: (1) his claim premised on the BOP officials' alleged failures to administer to Mr. Ajaj his medications at certain times so that he can maintain his Ramadan fast; and (2) his related claim concerning his medications and Sunnah fasts.[4] See ECF No. 117 at 2. However, because I find that the Court did not err in finding that plaintiff has adequate alternative avenues to redress these alleged wrongs and that, in any event, special factors counsel against recognizing these novel claims, plaintiff's motion is denied. See, e.g., Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 860 (10th Cir. 2015) (explaining this “two-step analytical framework”).

         1. Mr. Ajaj has Alternative Remedies for his First Amendment Fasting Claims for Damages.

         Plaintiff's first argument for reconsideration is that the Court erred by suggesting that his Fifth Amendment Bivens claims (contained within Count IV of the amended complaint) were “adequate alternatives” that precluded recognizing the two First Amendment Bivens claims mentioned above (contained within Count I). See ECF No. 117 at 3-4. He points out that since his Fifth Amendment claims do not include these fasting-based factual allegations, that they are not adequate substitutes to redress those alleged wrongs. See id. On this narrow point, the Court agrees: plaintiff's Fifth Amendment Bivens claims are not adequate alternatives for these specific factual allegations because his Fifth Amendment claims do not appear to contain them, but more importantly because the Court now dismisses those Fifth Amendment claims as well, see infra Part II.B.

         Nevertheless, I find that plaintiff's motion must still be denied because he retains other adequate alternatives besides those Fifth Amendment claims to redress these alleged First Amendment wrongs. Although the Court did not reference these alternatives specifically by name in its prior order, it incorporated Magistrate Judge Mix's recommendation that explained them well and at great length.[5] To briefly summarize two of them, they include: (1) filing a grievance as part of the BOP's administrative remedy program; and (2) filing a lawsuit for injunctive relief.[6] See ECF No. 97 at 43-45; 28 C.F.R. § 542.10(a) (the BOP's administrative remedy program); K.B. v. Perez, No. 16-1155, 2016 WL 7030320, at *2 (10th Cir. Dec. 2, 2016) (recognizing these two alternatives as “adequate” and precluding the creation of a Bivens claim premised on alleged First or Fifth Amendment violations); accord Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (noting that inmates at private prisons, like those at BOP facilities, “have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP's Administrative Remedy Program (ARP), ” and that injunctive relief and the BOP's “program provide[] . . . means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring.”).

         Mr. Ajaj nonetheless highlights the Tenth Circuit's recent decision in Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853 (10th Cir. 2016) and its earlier decision in Smith v. United States, 561 F.3d 1090 (10th Cir. 2009), arguing that the Tenth Circuit does not consider either of these two alternatives adequate.[7] I'm not convinced. Neither of these decisions analyzed in any depth the adequacy of an injunction or the BOP's alternative remedy program as alternatives to Bivens liability. Instead, they primarily concerned the adequacy of the Animal Welfare Act and the Inmate Accident Compensation Act as alternative remedial mechanisms to redress alleged Fourth Amendment and Eighth Amendment violations respectively. See, e.g., Big Cats, 843 F.3d at 862; Smith, 561 F.3d at 1099. Neither statute or Amendment is at issue here.

         Furthermore, that these cases concerned alleged violations of the Fourth and Eighth Amendments further undermines plaintiff's argument. The Fourth and Eighth amendments are the “core” of Bivens, which is a doctrine the Tenth Circuit in Big Cats expressly acknowledged the Supreme Court has consistently refused to expand since recognizing those applications and a few other limited ones dissimilar to the claims plaintiff asserts here. See Big Cats, 843 F.3d at 858 (“[T]he Court has steadfastly retreated from a broad application of the doctrine, refusing to extend implied causes of action to other constitutional provisions, and cabining the contexts in which it will allow Bivens claims to proceed.”). By contrast, plaintiff's First Amendment Bivens claims are novel. See, e.g, Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[W]e have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First ...

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