Ajaj v. Bureau of Prisons et al

Filing 135

ORDER: 117 MOTION for Reconsideration of Order [Doc. 111] filed by Ahmad Ajaj is DENIED. 116 MOTION for Reconsideration re 111 Order filed by D. (I) Parry, George Knox, John Oliver, David Berkebile, Tara Hall., George Knox (Religious Counselor, in his individual capacity), John Oliver (Warden, in his individual capacity), D. (I) Parry (in his individual capacity), David Berkebile (Warden, in his individual capacity) and Tara Hall (Associate Warden, in her individual capacity) is GRANTED. Individual defendants are dismissed from this lawsuit. by Judge R. Brooke Jackson on 1/17/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 15-cv-00992-RBJ-KLM
AHMAD AJAJ,
Plaintiff,
v.
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.

ORDER

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
1

The Court will refer to the “individual defendants” in this Order simply as “defendants” unless it is
distinguishing them from the other current or former defendants in this action.
1

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.
2

The United States was subsequently dismissed from this lawsuit, as were numerous individual named
defendants aside from those named in the caption above. See ECF No. 111.
2

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”).
3

As the Court explained in its prior order, plaintiff maintains two Fifth Amendment claims for damages
against the individual defendant—one based on their alleged failure to provide access to an Imam, and
one based on their alleged failure to allow Muslim inmates to conduct group prayer. See ECF No. 111 at
14.

4

In its prior order, the Court combined these claims into one. See ECF No. 111 at 5. Here, for ease of
analysis, the Court refers to these claims separately.
3

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

5

In her extensive and well-researched recommendation, which the Court reminds plaintiff it incorporated
in its prior order and adopted in full, Magistrate Judge Mix also noted numerous other persuasive reasons
why the Court should refrain from recognizing these novel claims. See ECF No. 97 at 41–50.

6

Plaintiff has availed himself of both alternative remedies. See, e.g., ECF No. 29 at ¶¶ 199, 212, 273, 282.
4

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

7

Plaintiff contends that the Tenth Circuit’s unpublished opinion in K.B. v. Perez, No. 16-1155, 2016 WL
7030320, at *2 (10th Cir. Dec. 2, 2016), which defendants rely on as evidence that the Tenth Circuit does
consider these alternatives adequate, see ECF No. 120, is unpersuasive in light of these published circuit
decisions, see ECF No. 131. As described infra, I find that argument unconvincing.
5

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 Amendment.”). Thus, the very claims underlying Smith
and Big Cat render those decisions inapposite. See Malesko, 534 U.S. at 68 (noting that the
Court has refused to “extend Bivens liability to any new context or new category of defendants”
since 1980) (emphasis added).
Finally, Smith and Big Cats are unconvincing because their omitted analysis about
whether injunctive relief and the BOP’s administrative remedy program are adequate alternative
remedies is not difficult to resolve against creating a Bivens remedy. The Supreme Court in
Malesko described it well. Explaining that these remedies were available to private prison
inmate-plaintiffs as well as to inmates in BOP-run facilities, the Court noted that these remedies
“provide[] . . . [a] means through which allegedly unconstitutional actions and policies [by BOP
officials] can be brought to the attention of the BOP and prevented from recurring.” 8 Malesko,
534 U.S. at 74; see also 28 C.F.R. § 542.10(a); Koprowski v. Baker, 822 F.3d 248, 268 (6th Cir.
2016) (Sutton, J. dissenting). Thus, the Court explained, these remedies are “adequate” because
they accomplish the very objective that originally led the Court to establish the Bivens doctrine

8

As the Supreme Court has also noted, in deciding whether an alternative remedial mechanism is
“adequate,” courts need not decide whether they are explicitly or implicitly designated as replacements,
nor whether they are equally effective as a Bivens remedy might be. See, e.g., Minneci v. Pollard, 132 S.
Ct.617, 623–25 (2012). They also need not compensate a plaintiff with monetary damages in order to be
adequate alternatives. Big Cats, 843 F.3d at 863.
6

in the first place: deterring unconstitutional behavior by government officials. 9 See, e.g.,
Malesko, 534 U.S. at 70 (“The purpose of Bivens is to deter individual federal officers from
committing constitutional violations.”). All of plaintiff’s First Amendment claims for damages
were therefore properly dismissed.
2. The “Mootness” of One of Plainitff’s Related Claims for Injunctive Relief does
not Warrant the Creation of a Bivens remedy.
Plaintiff next contends that because the Court dismissed as “moot” his claim for
injunctive relief against the BOP based its Ramadan pill administration, that his Bivens claim
based on that same allegation has no alternative remedial mechanism. ECF No. 117 at 5–7. He
therefore argues that his Bivens claim must be allowed to proceed because it is his only remedy
to redress that alleged wrong. Id.
Again, I am not convinced. As mentioned above, regardless of whether plaintiff could
file a claim for injunctive relief, he has the adequate alternative remedy of the BOP’s
administrative remedy program to redress that alleged First Amendment violation. See supra
Part II.A.1; see also ECF No. 97 at 41–50 (explaining the additional reasons counseling against
recognizing these claims, which the Court adopted in full). Furthermore, because the Court
found that plaintiff’s claim for an injunction was moot (due to the BOP’s revision of its pill line
procedures to accommodate Muslim inmates’ Ramadan fasts), plaintiff has not only already
received the relief he desires, but he also retains the ability to re-file his claim for an injunction
should the BOP make this controversy “live” again.

9

To the extent plaintiff argues that his injunctive relief is inadequate because it targets BOP as an entity
and not the individual BOP officials carrying out the policy, I note that plaintiff voluntarily dismissed his
official capacity claims for injunctive relief against the individual BOP defendants. See ECF No. 71 at 4
n.4.
7

Thus, for inmates in plaintiff’s shoes, it is not “damages or nothing.” See Bivens, 403
U.S. at 410 (Harlan, J. concurring). Far from it. 10 Cf. id. (“It will be a rare case indeed in which
an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief
from any court” because unknown federal agents stormed his apartment unannounced); Davis v.
Passman, 442 U.S. 228, 245 (1979) (“Moreover since respondent is no longer a Congressman . .
. equitable relief in the form of reinstatement would be unavailing. And there are available no
other alternative forms of judicial relief.”).
3. “Special Factors” Likewise Warranted Dismissal.
Finally, as the Court noted in its prior order, plaintiff’s motion for reconsideration must
also be denied because “special factors” counsel hesitation before recognizing plaintiff’s First
Amendment Bivens claims. See Big Cats, 843 F.3d at 860 (citing Wilkie v. Robbins, 551 U.S.
537, 550 (2007)); ECF No. 97 at 49–50 (explaining in great detail these special factors); ECF
No. 111 at 6 (incorporating and adopting Magistrate Judge Mix’s analysis on this point).

10

To the extent that Mr. Ajaj contends the Bivens doctrine requires that he have a judicial vehicle as an
alternate mechanism to redress any alleged wrongs, I note that there is no such requirement. See, e.g.,
Chappell v. Wallace, 462 U.S. 296, 304 (1983) (refusing to create a Bivens remedy for a naval service
members because “[a]ny action to provide a judicial response . . . would be plainly inconsistent with
Congress’ authority in this field.”). Moreover, it has come to the Court’s attention that in the course of
his argument, plaintiff appears to argue that an alternative remedy for a Bivens claim is only “adequate” if
it affords monetary relief for the past harm allegedly suffered. This misconstrues the law. See Koprowski
v. Baker, 822 F.3d 248, 267 (6th Cir. 2016) (Sutton, J. dissenting) (“But the key implication of an
alternative remedial scheme is that the pros and cons of that regime suffice from Congress’s perspective,
not necessarily the litigant’s perspective.”). A Bivens claim extracts money from individual government
officials as a means of preventing or deterring a constitutional harm from reoccurring. See Malesko, 534
U.S. at 70. Whether an alternative remedy is “adequate” is therefore a question of whether that remedy
can prevent the constitutional harm of which the plaintiff complains. A Bivens a claim is therefore not a
claim to obtain money for money’s sake. See Big Cats, 2016 WL 7187301, at *7 (“[T]here is no need for
congruent remedies or even money damages to deny a Bivens remedy[.]”). See also Koprowski, 822 F.3d
at 267–68 (Sutton, J. dissenting) (“On several occasions, the Court has held that a Bivens action was
precluded by remedies that made ‘no provision for . . . money damages against officials responsible for
unconstitutional conduct.’”) (citing Schweiker v. Chilicky, 487 U.S. 412 424 (1988); Bush v. Lucas, 462
U.S. 367, 388 (1983)).
8

Plaintiff nevertheless argues that because the Supreme Court has previously expressed
doubt about one of these special factors that the Court chose to reference in its prior order—
deference to prison administrators, see Carlson, 446 U.S. at 19—that the Court’s prior order was
made in error. 11
Plaintiff’s argument misses the forest for the trees. Regardless of whether or not he is
correct that deference to prison officials does not count as a “special factor” in any and all
inmate-plaintiff circumstances, the Tenth Circuit has recently and explicitly acknowledged that a
separate “special factor” counseling hesitation is that “extending Bivens would be contrary to the
strong trend of limiting its reach.” K.B., 2016 WL 7030320, at *2 (citing Minneci v. Pollard,
132 S. Ct. 617, 622 (2012); Malesko, 534 U.S. at 74). That is exactly what plaintiff seeks to do
here. See supra. The Court therefore rightly dismissed his claims for that reason alone. 12
Furthermore, as Magistrate Judge Mix similarly noted, see ECF No. 97 at 50; ECF No.
111 at 6, the Supreme Court has acknowledged that fears concerning an “onslaught of litigation”
counsel against expanding Bivens, see Wilkie v. Robbins, 551 U.S. 537, 562 (2007) (reasoning
that “Congress is in a far better position than a court to evaluate the impact of a new species of
litigation” and that “Congress can tailor any remedy to the problem perceived, thus lessening the
risk of raising a tide of suits threatening legitimate initiative on the part of the Government’s
employees”). The Tenth Circuit has echoed these concerns in a related context. K.B., 2016 WL

11

Plaintiff’s arguments on whether or not “special factors” counsel hesitation assumes that he has no
alternative remedies available to him. See ECF No. 117 at 7–8. Because plaintiff does have alternative
remedies, see supra, his arguments on this point are additionally unavailing.

12

As an unpublished decision, K.B. is not precedent but may be cited for its persuasive value. See 10th
Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”). Furthermore, it is important to point out that the two published Tenth Circuit cases on which
plaintiff predominately relies—Big Cats and Smith—did not analyze this “special factor” because those
cases mainly concerned alleged Constitutional violations that would not have “extended” Bivens. See Big
Cats, 843 F.3d at 856 (Fourth Amendment); Smith, 561 F.3d at 1099 (Eighth Amendment).
9

7030320 at *2 (“Moreover, [expanding Bivens] could lead to unintended, unpredictable, and farreaching consequences, including inviting a wide range of actions by family members of
prisoners. Should Congress wish to confer the right to bring such actions, it has the authority to
do so; but we decline to imply a cause of action of such potentially broad scope under these
circumstances.”).
For all of the reasons discussed above, the Court properly dismissed plaintiff’s novel First
Amendment Bivens claims. Plaintiff’s motion for partial reconsideration is accordingly denied.
B. Individual Defendants’ Motion for Reconsideration.
The Court next turns to defendants’ motion for partial reconsideration. See ECF No. 116.
Defendants argue that the Court erred when it refused to dismiss plaintiff’s Fifth Amendment
equal protection Bivens claims. Id. Specifically, they ask this Court to reconsider its decision
not to reach the merits of their argument for dismissal—raised for the first time in their objection
to Magistrate Judge Mix’s recommendation—that the Court should not recognize these Fifth
Amendment Bivens remedies in this novel context. Id. at 4–9. In the alternative, they ask the
Court to reconsider its refusal to grant defendants’ motion to dismiss based on qualified
immunity. Id. at 9–15. I find defendants’ first argument for reconsideration persuasive.
Like the issue of qualified immunity, the lack of a Bivens remedy is a purely legal issue
concerning the ability of a plaintiff to state a claim. See K.B., 2016 WL 7030320 at *2 (not
reaching the issue of qualified immunity after finding that the plaintiff had no Bivens remedy);
see also Big Cats, 843 F.3d at 856 (noting that “whether a Bivens remedy exists . . . [is]
sufficiently implicated by the qualified immunity defense”). While the Tenth Circuit does not
appear to have addressed whether and to what extent defendants waive an argument on this
point, the Tenth Circuit has instructed that a defendant can raise the affirmative defense of

10

qualified immunity at virtually any time. See, e.g., Escobar v. Mora, 496 F. App’x 806, 815
(10th Cir. 2012) (explaining “the unique nature of qualified immunity, which serves as an
immunity from the burdens of litigation rather than a mere defense to liability . . . should remain
available to the defendant at multiple stages of the case”) (citations omitted).
In my prior order, I relied on Tenth Circuit precedent regarding the waiver of arguments
generally in the Magistrate Judge recommendation-context to find that defendants had waived
their “no Bivens remedy” argument. See ECF No. 111 at 16 (citing United States v. Garfinkle,
261 F.3d 1030, 1031 (10th Cir. 2001)). However, given the Tenth Circuit’s permissive
allowance of arguments on the related issue of qualified immunity, I now realize that finding was
in error. Accordingly, I now conclude that defendants did not waive their argument about a lack
of Bivens remedy by asserting it for the first time in their objection to Magistrate Judge Mix’s
recommendation. 13 See also Saucier v. Katz, 533 U.S. 194, 200, 121 (2001) (“Where the
defendant seeks qualified immunity, a ruling on that issue should be made early in the
proceedings so that the costs and expenses of trial are avoided where the defense is
dispositive.”); Williams v. McNeil, 557 F.3d 1287, 1290 (11th Cir. 2009) (“[A] district court does
not abuse its discretion by considering an argument that was not presented to the magistrate
judge.”).
Reaching defendants’ argument on this point now, I find that for the same reasons the
Court refuses to recognize plaintiff’s First Amendment Bivens claims, it must also refuse
plaintiff’s invitation to create these novel Fifth Amendment equal protection Bivens claims. 14

13

That the Supreme Court has been unwavering in its refusals to expand Bivens since 1980 likewise
supports allowing defendants to be heard on this point. See Minneci v. Pollard, 132 S. Ct. 617, 622
(2012) (collecting cases).

14

Although the Supreme Court has previously recognized a Fifth Amendment equal protection Bivens
claim in the employment context, see Davis v. Passman, 442 U.S. 228 (1979), plaintiff’s Fifth
11

See Supra Part II.A–C (explaining plaintiff’s adequate alternatives for redressing the wrongs he
alleged suffered and the special factors that counsel against creating new Bivens remedies in this
particular context). 15 Accordingly, the Court grants defendants’ motion for reconsideration and
dismisses with prejudice plaintiff’s Fifth Amendment claims for damages contained within
Count IV of plaintiff’s Amended Complaint.
ORDER
For the reasons above, the Court DENIES plaintiff’s motion for reconsideration [ECF
No. 117] but GRANTS defendants’ motion [ECF No. 116]. Accordingly, the Court dismisses
with prejudice plaintiff’s Fifth Amendment claims for damages against the remaining individual
defendants contained within Count IV of plaintiff’s Amended Complaint. With no claims
remaining against the individual defendants, the Court dismisses them from this lawsuit.
DATED this 17th day of January, 2017.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

Amendment Bivens claims are novel because the context of Davis (Congressional employment) is quite
different from the context here: allegations by an inmate at a maximum security prison that several BOP
employees denied him the right to engage in congregate prayer and meet with an Imam. See, e.g., Wilson
v. Libby, 498 F. Supp. 2d 74, 86 (D.D.C. 2007) (“Bivens actions are not recognized Amendment by
Amendment in a wholesale fashion. Rather, they are context-specific.”), aff’d, 535 F.3d 697 (D.C. Cir.
2008); see also Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (“[T]he Supreme Court has warned
that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts.”)
(Internal quotation marks and citations omitted).
15

Plaintiff also maintains claims under RFRA as alternative mechanisms to remedy these specific
allegations.
12