Ajaj v. United States of America et al

Filing 220

ORDER GRANTING 217 MOTION for Leave to File an Amended Complaint to Voluntarily Dismiss Counts 9-12 filed by Ahmad M Ajaj. Plaintiff is GRANTED leave to file the Fourth Amended Complaint instanter. ORDER GRANTING 219 MOTION for Ext ension of Time to File Response/Reply to Defendants' Motion for Summary Judgment, Doc. 204 (Unopposed) filed by Ahmad M Ajaj. Plaintiff is GRANTED an extension of time, up to and including 4/30/2019, to file any response as to 204 MOTION to Dismiss Counts 1-7 and 9-12, or in the Alternative, for Summary Judgment. Signed by Magistrate Judge Reona J. Daly on 4/16/2019. (ely)

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

)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-1245-JPG-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff Ahmad Ajaj, an inmate in the custody of the United States Bureau of Prisons
(“BOP”), filed this action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were
violated while he was incarcerated at United States Penitentiary in Marion (“USP-Marion”).
Upon filing the Third Amended Complaint (Doc. 185), he proceeds on the following counts:
Count 1:
Count 2:
Count 3:
Count 4:
Count 5:
Count 6:
Count 7:
Count 8:

Count 9:
Count 10:

Eighth Amendment – Cruel and Unusual Punishment (Fozzard)
Eighth Amendment – Failure to Protect (Roal, Baney, and Parent)
First Amendment – Free Exercise (Roal, Hollingsworth, Baney, Parent,
Roloff, Neumann, Fozzard, Rivas, Cardona, Irvin, and Howard)
First Amendment – Retaliation (Fozzard, Roal, Parent, Baney, Cardona,
Neuman, Szoke, Rivas, Alexander, Patterson, Winklmeier, and Howard)
Eighth Amendment – Deliberate Indifference (Szoke, Roal, Irvin, and
Winklmeier)
Fifth Amendment – Equal Protection (Szoke, Fozzard, Rivas, Cardona,
Neumann, Hollingsworth, Winklmeier, and Roal)
Fifth Amendment – Due Process (Roal, Baney, Parent Neumann, Szoke,
Winklmeier, Rivas, Cardona, Patterson, Alexander, and Howard)
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (Fozzard, Roal,
Hollingsworth, Parent, Baney, Irvin, Cardona, Winklmeier, Neumann,
Szoke, Rivas, Alexander, Roloff, and Howard)
Federal Tort Claims Act – Hate Crimes (Fozzard)
Federal Tort Claims Act – Intentional Infliction of Emotional Distress
(Hollingsworth, Cardona, Irvin, Neumann, Rivas, Marla Patterson,
Page 1 of 4

Count 11:
Count 12:

Alexander, Szoke, Winklmeier, Roloff, and Howard)
Federal Tort Claims Act – Battery (Fozzard)
Federal Tort Claims Act – Willful & Wanton Conduct (Roal,
Hollingsworth, Winklmeier, Parent Baney, Neumann, Rivas, Szoke, Roloff,
and Cardona)

Defendants filed five motions to dismiss (Docs. 201-205). In response to the Motion to
Dismiss Counts 1-7 and 9-12, or in the Alternative, for Summary Judgment (Doc. 204), Plaintiff
filed a Motion for Leave to Amend His Complaint to Voluntarily Dismiss Counts 9-12.
Defendants filed a Response objecting to Plaintiff being granted leave to amend.
Plaintiff’s claims in Counts 9-12 are based on the Federal Tort Claims Act (“FTCA”).
Defendants argued in their motion that the FTCA claims were not timely filed. Defendants further
argued that a judgment against Plaintiff on his FTCA claims bars his Bivens claims (Counts 1-7).
Plaintiff seeks leave to amend the complaint to narrow the issues and to avert the risk that he could
lose his Bivens claims on the technical ground that he also pled FTCA claims.
Defendants argue Plaintiff should not be allowed to amend his complaint at this stage
because he chose to pursue his claims under the FTCA and Bivens knowing the advantages and
drawbacks of pursuing both causes of action. The individual Defendants argue they would be
unduly prejudiced by Plaintiff’s voluntary dismissal of the FTCA claims, because without a ruling
on the merits they would be unable to assert the FTCA’s judgment bar as a defense to the Bivens
claims. Defendants further argue since this case was filed in 2014, Plaintiff has had abundant
opportunities to amend his pleadings, requiring Defendants to file three separate rounds of
dispositive motions. Defendants assert Plaintiff’s re-evaluation of the merits of his FTCA claims
is belated, and undue delay justifies denial of the motion for leave to amend. Additionally,
Defendants argue Plaintiff has a history of alleging “far-flung conspiracies” and that without a
ruling on the merits, there is no guarantee that Plaintiff would not try to resurrect the FTCA claims
Page 2 of 4

as a continuing wrong.
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that
leave to amend should be freely given "when justice so requires." The Seventh Circuit maintains
a liberal attitude toward the amendment of pleadings "so that cases may be decided on the merits
and not on the basis of technicalities." Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.
1977). The Circuit recognizes that "the complaint merely serves to put the defendant on notice
and is to be freely amended or constructively amended as the case develops, as long as amendments
do not unfairly surprise or prejudice the defendant." Toth v. USX Corp., 883 F.2d 1297, 1298 (7th
Cir. 1989); see also Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996) ("The Federal Rules of
Civil Procedure create [a system] in which the complaint does not fix the plaintiff's rights but may
be amended at any time to conform to the evidence.") (quotation omitted). A court may also deny
a party leave to amend if there is undue delay, dilatory motive or futility. Guise v. BMW
Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).
The Court acknowledges the pleading stage of this case has been abnormally long and
convoluted. While the Court understands Defendants frustration with filing multiple rounds of
dispositive motions, the case should be decided on the merits and not on the basis of technicalities.
Plaintiff will be granted leave to file a Fourth Amended Complaint dismissing Counts 9-12.
Plaintiff should file the Fourth Amended Complaint instanter.
Plaintiff is GRANTED an extension of time, up to and including April 30, 2019, to respond
to Defendants’ Motion for Summary Judgment regarding Counts 1-7.
IT IS SO ORDERED.

Page 3 of 4

DATED: April 16, 2019
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

Page 4 of 4