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Ajaj v. Federal Bureau of Prisons

United States District Court, D. Colorado

September 13, 2018

AHMAD AJAJ, Plaintiff,


          R. Brooke Jackson United States District Judge.

         Ahmad 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.

         Over 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. 29.

         On 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.

         On May 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.

         On 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.[1] 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.

         During 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.

         On 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. 222.

         On 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.

         Both 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.

         When 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 were sought.

         Then, 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.

         Warden 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.

         There 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.

         Although 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 ...

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