United States District Court, D. Colorado
FINDINGS, CONCLUSIONS AND ORDER OF JUDGMENT
Brooke Jackson United States District Judge.
Ajaj, represented by law students and professors from the
Civil Rights Clinic of the University of Denver Sturm College
of Law, filed this lawsuit on May 11, 2015. At that time he
was an inmate incarcerated in solitary confinement at the
United States Penitentiary Administrative Maximum Security
facility in Florence, Colorado. Mr. Ajaj is a devout Muslim.
In his original Complaint he alleged that his rights under
the Religious Freedom Restoration Act of 1993
(“RFRA”), 42 U.S.C. § 2000bb, and the First
Amendment to the United States Constitution were being
violated because he was not allowed to consume food and
drink, and take medications, outside the fasting hours of
dawn to dusk during the holy month of Ramadan. ECF No. 1.
the years that followed the case has gone through numerous
changes. In an Amended Complaint filed on October 9, 2015
plaintiff added claims under the Fifth Amendment and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C §
1346(b). He also named 15 individual defendants in addition
to the Bureau of Prisons. His claims were expanded to include
Sunnah fasts. He also alleged failure to honor his
requirement of a halal diet, lack of meaningful access to an
Imam, and inability to participate in group prayer. ECF No.
October 25, 2016 the Court after a de novo review
adopted the recommendations of United States Magistrate Judge
Kristin L. Mix to dismiss plaintiff's FTCA claims and to
dismiss in part his official capacity and individual capacity
claims. ECF No. 111. On December 7, 2016 the Court issued a
Scheduling Order. ECF No. 124. The case was set for a Trial
Preparation Conference on December 19, 2017 and a two-week
jury trial beginning January 8, 2018. ECF No. 122. On January
17, 2017 the Court denied the parties' respective motions
to reconsider portions of the Court's order on
defendants' motions to dismiss. ECF No. 135. In August,
2017, at the request of the parties, several pretrial
deadlines were reset. ECF No. 160.
9, 2017 the Court, at the request of the parties, referred
the case to Magistrate Judge Mix for a settlement conference.
Unfortunately, a settlement was never achieved. On December
4, 2017 the parties jointly asked the Court to reopen
discovery and to vacate and reset the trial. Among other
things the parties reported that the BOP had posted a
position for a fulltime Islamic Chaplain at the Federal
Correctional Complex in Florence, Colorado. ECF No. 189. The
trial was reset for August 27, 2018 with a Trial Preparation
Conference on August 9, 2018. ECF No. 193.
January 29, 2018 the sole remaining defendant, Federal Bureau
of Prisons, informed the Court that Mr. Ajaj had been
transferred to the United States Penitentiary in Terre Haute,
Indiana. ECF No. 199. The next day plaintiff's counsel
informed the Court that they were attempting to obtain
information as to how the conditions at the new facility
might affect Mr. Ajaj's claims. ECF No. 200. Counsel
expressed concern that the transfer might have been motivated
by an attempt to render this case moot.
a status hearing on March 2, 2018 the Court informed the
parties that it did not consider that the transfer
necessarily mooted the claims, and that it would not consider
the case to be moot unless Mr. Ajaj were provided a halal
diet, some sort of meaningful access to an Imam, and the
ability to participate in group prayer in the Indiana
facility. ECF No. 206 at 5-7. The Court also informed the
parties that it would not require Mr. Ajaj to go through the
process of exhausting his administrative remedies again just
because he was transferred. Id. at 7-8. Government
counsel informed the Court that she understood that group
prayer is available to Mr. Ajaj at USP Terre Haute.
Id. at 8. However, the facility did not have a
contract Imam or a certified halal diet available at that
time. Id. at 9, 11-12.
April 18, 2018 the parties stipulated to the dismissal of
plaintiff's First Amendment claim, leaving (1) the RFRA
claim related to Mr. Ajaj's ability to observe Sunnah
fasts, to have access to an halal diet, to have access to an
Imam, and to have the ability to engage in congregate prayer,
and (2) an equal protection claim under the Fifth Amendment.
ECF No. 211. In May plaintiff filed a motion for a partial
summary judgment on the Imam issue. ECF No. 219. The BOP
likewise filed a motion for summary judgment in which it
argued (1) that plaintiff did not exhaust his administrative
remedies with respect to conditions at USP Terre Haute; (2)
plaintiff's claims about the ADX were moot; and (3) this
Court is not an appropriate forum to resolve claims
concerning conditions at an out-of-district facility. ECF No.
August 21, 2018 this Court issued an order (1) denying
plaintiff's motion for summary judgment; (2) granting in
part and denying in part defendant's motion for summary
judgment; (3) reiterating an earlier order denying
plaintiff's request that he be transported to Colorado
for trial; (4) denying without prejudice plaintiff's
motion to exclude certain testimony; and (5) denying a motion
in limine filed by the plaintiff. ECF No. 243. Essentially, I
agreed that the claims concerning conditions at the ADX were
now moot. However I found that Mr. Ajaj's claims
concerning violation of his religious rights could be decided
by this Court in this case to the extent that the same
conditions about which he complained at the ADX (and as to
which he had exhausted his administrative remedies there)
existed at USP Terre Haute. I also found that Mr. Ajaj no
longer had standing to challenge BOP policies regarding
communal prayer because he now had the ability to do so
through USP Terre Haute's “Life Connections
Program” in which he had enrolled.
parties sought reconsideration of that order for different
reasons. See ECF Nos. 250 and 251. The Court
modified its summary judgment order only to the extent that
it found that Mr. Ajaj's claim concerning delivery of his
medications had not been sufficiently raised and preserved.
ECF No. 265. The Court on August 20, 2018 denied the
BOP's motion to continue the trial (by then just one week
away) based on the illness of one of the defense attorneys on
the case. ECF No. 267.
all the dust settled, two issues remained for trial: Mr.
Ajaj's alleged entitlement to (1) a certified halal diet;
and (2) meaningful access to an Imam. Only equitable remedies
two significant events occurred shortly before trial. First,
on either August 20 or 21, 2018 Hugh Hurwitz, the Acting
Director of the Bureau of Prisons, contacted Jeffrey E.
Krueger, the Complex Warden at FCC Terre Haute, and asked him
to see if he could obtain certified halal meals for Mr. Ajaj
in a short timeframe. According to Warden Krueger, this was
an effort to get the diet issue resolved before the trial as
well as to accommodate Mr. Ajaj's religious needs. Almost
overnight FCC Terre Haute was able to contract to purchase a
supply of halal-certified meals for Mr. Ajaj from a
relatively nearby Illinois vendor as well as a microwave
dedicated to heating only the halal meals. On August 24,
2018, the last business day before trial, Complex Warden
Krueger issued a memorandum to Ismail Oliver, the Food
Service Administrator for FCC Terre Haute, confirming the new
policy. Defendant Ex. C-9. That same day Mr. Ajaj began
receiving certified halal meals with the noon meal. The meals
are prepackaged and are reviewed by the prison's Chief
Dietician to assure nutritional values.
Krueger testified that delivery of these meals to Mr. Ajaj
will continue (subject to abuse of the privilege such as
selling food to others or an institutional emergency such as
a lockdown) until a long-term solution such as a national
contract or national vendor is implemented. Although Warden
Krueger is moving up to a regional position, it oversees
Terre Haute and several other BOP facilities, and he will
make sure that the policy will not be rescinded by his
successor. If a national solution is not implemented the
policy will continue potentially indefinitely.
are no current plans to transfer Mr. Ajaj again. However, if
he is transferred before a national policy is implemented,
his meals at the new institution will be reviewed by the
BOP's central office. Warden Krueger testified that most
of the 200 to 300 Muslim inmates at FCC Terre Haute are on a
kosher diet, but if others want what Mr. Ajaj is now getting
they will be accommodated as well.
the new policy provides for three meals a day, the vendor is
only providing prepackaged lunch and dinner meals. However,
the word “halal” means “permitted.”
Fruits and vegetables are always permitted. Items that are
not permitted included pork, meat not slaughtered in an
approved manner, carrion and alcohol. Mr. Oliver testified
that Mr. Ajaj's breakfasts include dry cereals certified
by General Mills as halal, boiled eggs that are naturally
halal, fruit, dairy and tea. He is trying to expand the menus
so that Mr. Ajaj will not be eating the ...