Ajaj v. United States of America et al

Filing 137

MEMORANDUM AND ORDER re: Report and Recommendation 115 . Signed by Judge J. Phil Gilbert on 7/11/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AHMAD M. AJAJ,
Plaintiff,
vs.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Case No. 14-cv-01245-JPG-RJD

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
115) of Magistrate Judge Reona J. Daly with regard to the following:
Plaintiff’s Motion for Appointment of Counsel (Doc. 82);
Defendants’ Motion to Dismiss for failure to State a Claim or in the
alternative, Motion for Summary Judgment (Doc. 84);
Plaintiff’s Motion to Stay the Filing of Plaintiff’s Response to Defendants’
Motion to Dismiss (Doc. 90);
Plaintiff’s Motion for Order Directing defendants’ Attorney to Serve
Plaintiff a Clear and Legible Copy of All Attachments to Defendants’
Motion to Dismiss (Doc. 98);
Plaintiff’s Motion for an Order Directing the US Marshals to Serve
Defendants with Amended Complaint (Doc. 100);
Plaintiff’s Motion to Strike All the Attachments to Defendants’ Motion to
Dismiss or in the alternative, Motion to Convert the Motion to Dismiss to
a Motion for Summary Judgment and allow the plaintiff to Conduct
Discovery prior to responding (Doc. 101);
Plaintiff’s Motion to Strike All the Arguments Raised on Behalf of the
Defendants (Doc. 102);
Plaintiff’s Motion to Amend/Correct Amended Complaint (Doc. 104);
Plaintiff’s Motion to Notify the Court that Defendants’ Response is
Illegible (Doc. 106);
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Defendant Patterson’s Motion to Dismiss (Doc. 108); and
Defendant Allen’s Motion for Joinder (Doc. 109).
Also before the Court is Plaintiff’s Motion (Doc. 135) to take Judicial Notice.
1. Background.
Plaintiff is an inmate currently incarcerated at ADX- Florence U.S. Penitentiary in
Florence, Colorado.

This action arose while the plaintiff was incarcerated at the U.S.

Penitentiary in Marion, Illinois and generally alleges that the plaintiff was subject to a pattern
and practice of excessive force and harassment; that plaintiff was subject to conditions of
confinement that exacerbated his medical conditions; and that he was transferred to a facility
without consideration of medical needs due to defendants’ prejudice against plaintiff’s race,
religion, ethnicity, national origin and political beliefs. (Doc. 22).
2. Procedural History.
Upon threshold screening of plaintiff’s first amended complaint (Doc. 18), the plaintiff was
allowed to proceed on the following claims:
Count 1: Defendants Fozzard, Roal, Hollingworth, Baney, Parent, Neumann,
Szoke, Rivas, Cardona, Patterson, and Howard, and by implication the United
States and Bureau of Prisons, subjected Plaintiff Ajaj to excessive force and
harassment in violation of the Eighth Amendment, the Equal Protection Clause of
the Fourteenth Amendment, Federal Tort Claims Act, the APA and the Alien Tort
Claims Act;
Count 2: Defendants Roal, Hollingworth, Baney, Parent, Davis, Scofield, Harvey,
Irvin, Neumann, Fozzard, Szoke, Rivas, Cardona, Allen, Patterson, Alexander,
Winklmeier, Kendig Howard and McCleary, and by implication the United States
and the Bureau of Prisons, subjected Plaintiff to conditions of confinement,
including the denial of proper medical care, in violation of the Eighth
Amendment, the Equal Protection Clause of the Fourteenth Amendment, Federal
Tort Claims Act, the APA, and the Alien Tort Claims Act; and
Count 3: Defendants Roal, Hollingworth, Baney, Parent, Davis, Scofield, Harvey,
Irvin, Neumann, Fozzard, Szoke, Rivas, Cardona, Allen, Patterson, Alexander,
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Winklmeier, Kendig Howard and McCleary, were involved in Plaintiff’s transfer
to ADX-Florence in violation of the Eighth Amendment, the Equal Protection
Clause of the Fourteenth Amendment and Federal Tort Claims Act.
Defendants moved for a more definite statement and the Court granted the motion. (Doc.
59). Plaintiff filed a more definite statement – which was titled and docketed as a Second
Amended Complaint (Doc. 78).

However, plaintiff was denied leave to file an amended

complaint (Doc. 44). “Dismissal followed by the filing of a new complaint may actually be a
better response than ordering the plaintiff to file a more definite statement of his claim,
Fed.R.Civ.P. 12(e), which results in two documents, the complaint and the more definite
statement, rather than one compliant document.” Davis v. Ruby Foods, Inc., 269 F.3d 818, 820
(7th Cir. 2001).
Such is the problem in this case. The defendants’ motions and the R&R address the
second amended complaint; however, there is no second amended complaint in this matter, but
two pleading documents – the amended complaint (Doc. 18) and the more definite statement
(Doc. 78). Therefore, the Clerk of Court is directed to modify docket entry 78 to reflect “More
definite statement” and remove any reference to an amended pleading.

The two pleading

documents also cause other difficulties which the Court will discuss below.
The Court also notes that on March 17, 2017, defendant USA filed a Notice of Substitution
(Doc. 122). The Notice indicates that the USA should be substituted for defendants “Garret
Fozzard, Wendy Roal, Lisa Hollingsworth, Jeffrey Baney, John Parent, Blake Davis, Milt
Neumann, Henry Rivas, Steven Cordona, Lawrence Howard, Dr. David Szoke, Marla Patterson,
Eleanor Alexander, and Michael Winklmeier.” The Notice further notes that the USA should be
substituted for all claims “(other than for claims alleging a violation of the Constitution of the
United States.)” The above listed defendants were terminated on March 21, 2017; however,

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some of these defendants had claims against them alleging a violation of the Constitution of the
United States and should not have been terminated.
Therefore, the Clerk of Court is DIRECTED to reinstate defendants Garret Fozzard,
Wendy Roal, Lisa Hollingsworth, Jeffrey Baney, John Parent, Blake Davis, Milt Neumann,
Henry Rivas, Steven Cordona, Lawrence Howard, Dr. David Szoke, Marla Patterson, Eleanor
Alexander, and Michael Winklmeier. Defendants Melissa Winn, Robert Roloff, Keith Harrison,
Bashar Murad, Steve Julian, “FNU” Bradford, and Luke Ormandy remain terminated as they are
not listed within plaintiff’s amended complaint (Doc. 18).
3. Standard.
The Court may accept, reject or modify, in whole or in part, the findings or recommendations
of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court
must review de novo the portions of the report to which objections are made. The Court has
discretion to conduct a new hearing and may consider the record before the magistrate judge
anew or receive any further evidence deemed necessary. Id. “If no objection or only partial
objection is made, the district court judge reviews those unobjected portions for clear error.”
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

The Court has received

objections. As such, it will review those portions to which objections have been filed de novo.
4.

Analysis.

The defendants’ motions and the R & R address plaintiff’s second amended complaint and as
the R & R notes, “the second amended complaint is not a model of clarity.” However, the main
problem, as stated above, it that there is no second amended complaint. The more definite
statement confuses – rather than clarifies – the initial three counts. Although the R & R
recommends that the plaintiff should not be allowed to amend his complaint, the Court believes

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that a clear, precise pleading is exactly what is needed. This matter has been proceeding for over
two years and has not progressed beyond the initial pleading stage. It is difficult to discern the
claims asserted when taking the 34 pages of the amended complaint in consideration with the
threshold order and 56 pages of the more definite statement – along with the 20 pages of exhibits
attached to the more definite statement.
Therefore, the Court is granting plaintiff’s Motion (Doc. 104) to Amend with limitations.
The Court is adopting the R & R recommendation on the manner in which the plaintiff’s claims
need to be clarified. The plaintiff’s amended complaint is limited to the following counts:
Count 1: Defendant Fozzard subjected Plaintiff to excessive force and harassment in
violation of the Eighth Amendment.
Count 2: Defendants Roal, Hollingworth, Baney, Parent, Davis, Neumann, Rivas,
Cardona, Howard, Szoke, and Patterson either acted with deliberate indifference or
intentionally facilitated the conduct of Defendant Fozzard and other staff in violation of
the Eighth Amendment.
Count 3: Defendant Fozzard subjected Plaintiff to excessive force and harassment due
to Plaintiff’s race, ethnicity, religion, and politics in violation of the Equal Protection
Clause.
Count 4: Defendants Roal, Hollingworth, Baney, Parent, Davis, Neumann, Rivas,
Cardona, Howard, Szoke, and Patterson either acted with deliberate indifference or
intentionally facilitated the conduct of Defendant Fozzard and other staff due to
Plaintiff’s race, ethnicity, religion, and politics in violation of the Equal Protection
Clause.
Count 5: Defendant USA is liable under the FTCA and Illinois law for the negligent
conduct of Defendants Fozzard, Roal, Hollingworth, Baney, Parent, Davis, Neumann,
Rivas, Cardona, Howard, Szoke, and Patterson and other staff that resulted in excessive force
and harassment.
Count 6: Defendants USA, Bureau of Prisons, Fozzard, Roal, Hollingworth, Baney,
Parent, Davis, Neumann, Rivas, Cardona, Howard, Szoke, and Patterson are liable under the
Alien Tort Claims Act for violating international law by discriminating on the basis of race.
Count 7: Defendant Szoke violated the Eighth Amendment by failing to provide
adequate treatment for Plaintiff’s spinal condition, mental disorders, gastrointestinal
disorders, and breathing difficulties.
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Count 8: Defendants Roal, Hollingworth, Baney, Parent, Davis, Scofield, Harvey, Irvin,
Neumann, Rivas, Cardona, Allen, Patterson, Winklemeire, Kendig, Howard, McLeary,
and Fozzard violated the Eighth Amendment by failing to address Plaintiff’s medical
needs with respect to mental disorders, gastrointestinal disorders, and breathing
difficulties.
Count 9: Defendants Sjoke, Roal, Hollingworth, Baney, Parent, Davis, Scofield,
Harvey, Irvin, Neumann, Rivas, Cardona, Allen, Patterson, Winklemeier, Kendig,
Howard, McLeary, and Fozzard violated the Equal Protection Clause by neglecting
Plaintiff’s medical needs on the basis of race, ethnicity, and religion.
Count 10: Defendants Roal, Baney, Parent, Cardona, Neumann, Rivas, Howard,
Patterson, Alexander, and Davis violated the Eighth Amendment by referring Plaintiff for a
transfer to the Administrative Maximum Facility in Florence, Colorado, despite his
serious medical needs.
Count 11: Defendants Szoke and Winklemeier violated the Eighth Amendment by
failing to take any action to prevent the transfer to the Administrative Maximum Facility
in Florence, Colorado, despite his serious medical needs.
Count 12: Defendants Roal, Baney, Parent, Cardona, Neumann, Rivas, Howard,
Patterson, Alexander, Davis, Szoke, and Winklemeier violated the Equal Protection
Clause by facilitating or failing to act to prevent the transfer to the Administrative
Maximum Facility in Florence, Colorado, despite his serious medical needs.
Count 13: Defendants USA, Bureau of Prisons, Roal, Baney, Parent, Cardona,
Neumann, Rivas, Howard, Patterson, Alexander, Davis, Szoke, and Winklemeier are liable
under the Alien Tort Claims Act for violating international law by subjecting Plaintiff to
torture by facilitating or failing to act to prevent the transfer to the Administrative
Maximum Facility in Florence, Colorado, despite his serious medical
needs.
To be clear – the plaintiff is directed to only include the above counts in his second amended
complaint. He is directed to add necessary facts – such as dates, medical condition, etc., but
plaintiff is NOT permitted to exceed one page per count. He is NOT permitted to add additional
defendants to the counts and he is NOT permitted to add additional counts. He is directed to
label the pleading, “Second Amended Complaint” and to file the amended complaint within 30
days of this order.

Plaintiff and defendants are directed to refer to the counts as indicated above

in future filings.

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Plaintiff is WARNED that failure to file a Second Amended Complaint within the allotted
time may result in the dismissal of this matter. The plaintiff is further WARNED that failure to
following the instruction given in this Order may also result in the striking portions of the
amended pleading and/or dismissal of claims.
Based on the granting of plaintiff leave to amend, defendants’ Motion (Doc. 84) to
Dismiss; defendant Allen’s Motion (Doc. 109) for Joinder; Defendant Patterson’s Motion (Doc.
108) to Dismiss; Plaintiff’s Motions (Docs. 101 and 102) to Strike; and Plaintiff’s Motion (Doc.
135) to Take Judicial Notice are moot. Plaintiff’s Motion (Doc. 100) for Order Directing the US
Marshall to Serve is moot as there is no current amended pleading on file.
Plaintiff’s Motion (Doc. 90) to Stay the Filing of his Response to Defendants’ Motion to
Dismiss is moot because the plaintiff filed a response (Doc. 105) on August 23, 2016. Plaintiff’s
Motion (Doc. 98) for Order Directing defendant’s Attorney to Serve Plaintiff a Clear and Legible
Copy of All Attachments to Defendants’ Motion to Dismiss and Plaintiff’s Motion (Doc. 106) to
Notify the Court that Defendants Response is Illegible are moot since the defendants indicate
that they have, “produced an entirely new copy of all of the attachments” to the plaintiff. (Doc.
107).
The Court adopts the R & R recommendation with regard to plaintiff’s Motion (Doc. 82)
for Appointment of Counsel. The Court has considered plaintiff’s objection, but agrees with the
R & R that plaintiff may refile for appointment of counsel following the resolution of the
exhaustion and statute of limitation issues.
The parties are directed to review Local Rule 7.1 with regard to motion practice in this
Court and the Court is reminding all parties that it will enforce page limitations on all future
motions.

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5.

Conclusion.

The Court has reviewed the R & R, the objections, and the responses thereto. The Court has
further conducted a de novo review of issues objected to and not found moot. Based on its
review, the Court ADOPTS the R & R in part and REJECTS the R & R in part.
In summary, based on the above:
Plaintiff’s Motion for Appointment of Counsel (Doc. 82) is DENIED;
Defendants’ Motion to Dismiss for failure to State a Claim or in the
alternative, Motion for Summary Judgment (Doc. 84) is MOOT;
Plaintiff’s Motion to Stay the Filing of Plaintiff’s Response to Defendants’
Motion to Dismiss (Doc. 90) is MOOT;
Plaintiff’s Motion for Order Directing defendants’ Attorney to Serve
Plaintiff a Clear and Legible Copy of All Attachments to Defendants’
Motion to Dismiss (Doc. 98) is MOOT;
Plaintiff’s Motion for an Order Directing the US Marshals to Serve
Defendants with Amended Complaint (Doc. 100) is MOOT;
Plaintiff’s Motion to Strike All the Attachments to Defendants’ Motion to
Dismiss or in the alternative, Motion to Convert the Motion to Dismiss to
a Motion for Summary Judgment and allow the plaintiff to Conduct
Discovery prior to responding (Doc. 101) is MOOT;
Plaintiff’s Motion to Strike All the Arguments Raised on Behalf of the
Defendants (Doc. 102) is MOOT;
Plaintiff’s Motion to Amend/Correct Amended Complaint (Doc. 104) is
GRANTED;
Plaintiff’s Motion to Notify the Court that Defendants’ Response is
Illegible (Doc. 106) is MOOT;
Defendant Patterson’s Motion to Dismiss (Doc. 108); and
Defendant Allen’s Motion for Joinder (Doc. 109) is MOOT; and
Plaintiff’s Motion (Doc. 135) to Take Judicial Notice is MOOT.

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As a reminder, Plaintiff’s Motion to Amend/Correct Amended Complaint (Doc. 104) is
GRANTED limited to the restrictions as follows: plaintiff is directed to only include the counts
listed above. He is directed to add necessary facts – such as dates, medical condition, etc., but
plaintiff is NOT permitted to exceed one page per count. He is NOT permitted to add additional
defendants to the counts and he is NOT permitted to add additional counts. He is directed to
label the pleading, “Second Amended Complaint” and to file the amended complaint within 30
days of this order.
The Clerk of Court is DIRECTED to modify docket entry 78 to reflect “More definite
statement” and remove any reference to an amended pleading. The Clerk of Court is further
DIRECTED to reinstate defendants Garret Fozzard, Wendy Roal, Lisa Hollingsworth, Jeffrey
Baney, John Parent, Blake Davis, Milt Neumann, Henry Rivas, Steven Cordona, Lawrence
Howard, Dr. David Szoke, Marla Patterson, Eleanor Alexander, and Michael Winklmeier.
Magistrate Judge Daly is DIRECTED to conduct a review of plaintiff’s Second
Amended Complaint, once filed, and ensure compliance with this Order. If plaintiff’s Second
Amended Complaint survives review, the Magistrate Judge shall direct service in accordance
with Federal Rules of Civil Procedure 4, to include service by Untied States Marshal as
appropriate, and order defendants to timely file an appropriate responsive pleading to the
complaint and not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Finally, Plaintiff is REMINDED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court
will not independently investigate his whereabouts.

This shall be done in writing and not

later than 7 days after a transfer or other change in address occurs. Failure to comply with

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this order will cause a delay in the transmission of court documents and may result in
dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: 7/11/2017
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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