Ajaj v. United States of America et al

Filing 147

MEMORANDUM AND ORDER, denying 141 MOTION for Reconsideration re 137 Memorandum & Order. Signed by Judge J. Phil Gilbert on 10/10/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AHMAD M. AJAJ,
Plaintiff,

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

v.
UNITED STATES OF AMERICA, et. al.,
Defendants.

MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This matter comes before the Court on plaintiff Ahmad M. Ajaj’s motion for
reconsideration (Doc. 141) of the Court’s order (Doc. 137) adopting in part and rejecting in part
Magistrate Judge Reona J. Daly’s Report and Recommendation (“Report”) (Doc. 115). For the
following reasons, the Court denies Ajaj’s motion.
This litigation began in 2014 while Ajaj was incarcerated at United States Penitentiary,
Marion (USP Marion). He has made numerous allegations against the defendants, including
violations of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment,
the Federal Tort Claims Act, the Administrative Procedure Act, and—via alleged violations of
international law—the Alien Tort Claims Act. In 2015, the Court screened Ajaj’s first-amended
complaint and allowed the following claims to proceed:
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;

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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, 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, Federal Tort Claims Act,
and, the Alien Tort Claims Act.
On June 11, 2017, Magistrate Judge Daly recommended disentangling the claims into 13
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.

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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.
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.
(Doc. 115.) Ajaj objected to the Report on numerous grounds. (Doc. 128.) This Court conducted
a de novo review of the objected-to issues not moot and directed Ajaj to file a second-amended
complaint that adopted the 13-count enumeration. (Doc. 137.)

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Ajaj has since filed a motion urging the Court to reconsider that memorandum and order.
(Doc. 141.) First, Ajaj argues that the Court improperly dismissed his Federal Tort Claims Act
claim in count two of the first-amended complaint in light of Gil v. Reed, 381 F.3d 649, 658–661
(7th Cir. 2004). Second, he argues that the Court failed to address his objections to the Report’s
recommended dismissal of count two’s claims under the Alien Tort Claims Act and the
Administrative Procedure Act. Third, Ajaj claims that the Court failed to address his objection to
the Report’s proposed dismissal of count three’s claim under the Federal Tort Claims Act.
Finally, Ajaj asserts that the order failed to address his objection to the Report’s recommended
dismissal of count three’s claim under the Rehabilitation Act.
Ajaj does not indicate, however, under which procedural rule he brings his motion. The
Court will thus construe the motion as a motion to reconsider pursuant to Federal Rule of Civil
Procedure 60(b). It is well settled that Rule 60(b) relief is an extraordinary remedy and is granted
only in exceptional circumstances. McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir.
2000) (citing Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994)). Under Rule
60(b), a court may relieve a party from an order where there is ‘mistake, inadvertence, surprise,
or excusable neglect”, “newly discovered evidence that, with reasonable diligence could not have
been discovered in time to move for a new trial”, or “fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an opposing party.” FED.R.CIV.P. 60(b).
“Motions for reconsideration serve a limited function; to correct manifest errors of law or fact or
to present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246,
251 (7th Cir. 1987).
Ajaj has not demonstrated any of the exceptional circumstances required to succeed on a
Rule 60(b) motion. Rather, Ajaj reasserts the same arguments he made in his objection to the

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Report—arguments that this Court previously reviewed de novo and found to be without merit.
(Doc. 137) (“[t]he Court has further conducted a de novo review of issues objected to and not
found moot”).
Accordingly, the Court DENIES Ajaj’s motion to reconsider. (Doc. 141.)
IT IS SO ORDERED.
DATED: OCTOBER 10, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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