Ajaj v. United States of America et al

Filing 271

ORDER GRANTING 268 Plaintiff's First Motion for Reconsideration of Memorandum and Order; 259 Defendant Federal Bureau of Prisons' Motion to Strike Fifth Amended Complaint; and 260 Defendants' Motion to Dismiss Fifth Amended Compl aint. COUNT 8 is REINSTATED against Defendants Fozzard, Roal, Hollingsworth, Parent, Baney, Irvin, Cardona, Winklmeier, Neumann, Szoke, Rivas, Alexander, and Howard. The Clerk's Office is DIRECTED to REINSTATE Fozzard, Roal, Hollingsworth, Paren t, Baney, Irvin, Cardona, Winklmeier, Neumann, Szoke, Rivas, Alexander, and Howard as defendants in CM/ECF and TERMINATE all other defendants as parties to this action. The Scheduling Clerk is DIRECTED to set a date and time for a telephonic status conference as soon as possible. Signed by Judge J. Phil Gilbert on 3/12/2021. (jsy)

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

Case No. 14-cv-01245-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Now before the Court are the following: (a) Plaintiff’s First Motion for Reconsideration of
Memorandum and Order dated August 13, 2019 (Doc. 230) filed January 20, 2021 (Doc. 268);
(b) Defendant Federal Bureau of Prison’s (“BOP”) Motion to Strike Fifth Amended Complaint
filed August 20, 2020 (Doc. 259); and (c) Defendants’ Motion to Dismiss Fifth Amended
Complaint for Failure to State a Claim filed on August 20, 2020 (Doc. 260). For the reasons set
forth below, all three motions shall be GRANTED.
As a result, the Fourth Amended Complaint (Doc. 221) shall serve as the operative
complaint. Count 1 shall proceed against Defendant Fozzard. Count 8 shall proceed against
Defendants Fozzard, Roal, Hollingsworth, Parent, Baney, Irvin, Cardona, Winklmeier, Neumann,
Szoke, Rivas, Alexander, and Howard. All other claims and parties are considered dismissed for
the reasons already set forth in this Court’s prior Orders. Finally, to expedite this matter, the Court
will schedule a status conference as soon as possible.
BACKGROUND
Plaintiff filed this lawsuit to complain about violations of his federal statutory and
constitutional rights by the BOP and its employees. His claims arose from events that occurred at
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several federal institutions between May 1997 and May 2012. He asserted claims against the
defendants pursuant to Bivens (Counts 1 through 7), the Religious Freedom Restoration Act
(“RFRA”) (Count 8), and the Federal Tort Claims Act (“FTCA”) (Count 9 through 12), as follows:
Count 1: Eighth Amendment cruel and unusual punishment claim (Fozzard);
Count 2: Eighth Amendment failure to protect claim (Roal, Baney, and Parent);
Count 3: First Amendment free exercise claim (Roal, Hollingsworth, Baney, Parent,
Roloff, Neumann, Fozzard, Rivas, Cardona, Irvin, and Howard);
Count 4: First Amendment retaliation claim (Fozzard, Roal, Parent, Baney, Cardona,
Neumann, Szoke, Rivas, Alexander, Patterson, Winklmeier, and Howard);
Count 5: Eighth Amendment deliberate indifference claim (Szoke, Roal, Irvin, and
Winklmeier);
Count 6: Fifth Amendment equal protection claim (Szoke, Fozzard, Rivas, Cardona,
Neuman, Hollingsworth, Winklmeier, and Roal);
Count 7: Fifth Amendment due process claim (Roal, Baney, Parent, Neumann, Szoke,
Winklmeier, Rivas, Cardona, Patterson, Alexander, and Howard);
Count 8: RFRA claim (Fozzard, Roal, Hollingsworth, Parent, Baney, Irvin, Cardona,
Winklmeier, Neumann, Szoke, Rivas, Alexander, Roloff, and Howard);
Count 9: FTCA claim for hate crimes (Fozzard);
Count 10: FTCA claim for intentional infliction of emotional distress (Hollingsworth,
Cardona, Irvin, Neumann, Rivas, Marla Patterson, Alexander, Szoke,
Winklmeier, Roloff, and Howard);
Count 11: FTCA claim for battery (Fozzard); and
Count 12: FTCA claim for willful and wanton conduct (Roal, Hollingsworth, Winklmeier,
Parent, Baney, Neumann, Rivas, Szoke, Roloff, and Cardona).
(See Docs. 1, 18, 146, 185, 221, and 258). To date, Plaintiff has submitted five versions of the
complaint.
The Third Amended Complaint (Doc. 185) prompted Defendants to file several motions to
dismiss claims and parties. (See Docs. 200-205). Before disposing of the motions, Plaintiff
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requested and received permission to file a Fourth Amended Complaint voluntarily dismissing his
FTCA claims (Counts 9 through 12). (See Docs. 217, 220-21). This narrowed the case to seven
Bivens claims (Counts 1 through 7) and a RFRA claim (Count 8).
On August 13, 2019, this Court entered a Memorandum and Order disposing of five
motions to dismiss (Docs. 200-203, 205). (See Doc. 230). In the Order, the Court dismissed
Counts 3, 4, 6, 7, and 8 (all with prejudice), as well as all claims against Defendant Roloff (with
prejudice). (Id. at 5). Counts 1, 2, and 5 remained pending. (Id.). However, the Court
subsequently entered an order disposing of two of these remaining claims in response to the motion
to dismiss filed at Document 204. (See Doc. 255). In the Order, the Court dismissed Count 2
(without prejudice) on exhaustion grounds and Count 5 (with prejudice) on statute of limitations
grounds. (Id.). Only Count 1 against Defendant Fozzard survived. (Id.).
FIRST MOTION TO RECONSIDER (Doc. 268)
Plaintiff now seeks reinstatement of Count 8 against Defendants Fozzard, Roal,
Hollingsworth, Parent, Barney, Irvin, Cardona, Winklmeier, Neumann, Szoke, Rivas, Alexander,
and Howard. In support of the motion, Plaintiff relies on the United States Supreme Court’s recent
decision in Tanzin v. Tanvir, -- U.S. --, 141 S.Ct. 486 (decided Dec. 10, 2020), holding that
RFRA’s remedies provision permits litigants to obtain money damages against federal officials in
their individual capacities. Id.
When considering this issue pre-Tanzin, this Court reached the opposite conclusion.
(Doc. 230). RFRA authorizes a “[a] person whose religious exercise has been burdened in
violation of this section [to] assert that violation as a claim or defense in a judicial proceeding and
obtain appropriate relief against a government.” Id. In the Memorandum and Order dated August
13, 2019, this Court noted that the question of whether money damages against an individual

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federal officer constitutes “appropriate relief” against “a government” remained unsettled. After
considering the split of authority and the arguments raised by the parties, the Court sided with
those courts which held that RFRA does not authorize money damages against federal officials in
their individual capacities. The Court dismissed Count 8 against all individual defendants. (Id.).
In the wake of the Supreme Court’s decision in Tanzin, Plaintiff asks the Court to allow
him to proceed with his RFRA claim against the individual federal officials. (Doc. 268).
Defendants agree that this Court’s legal conclusion regarding the availability of money damages
against these individuals was erroneous, but they maintain that the error was harmless. Defendants
instead ask the Court to leave its decision undisturbed, after finding that qualified immunity shields
the individuals from liability. (See Doc. 269).
The Court has inherent authority to reconsider nonfinal orders, like the one at issue in
Document 230. Rule 54(b) of the Federal Rules of Civil Procedure provides that “any order or
other decision, however designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all of the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.” See FED. R. CIV. P. 54(b). The Supreme Court has explained
that “every order short of a final decree is subject to reopening at the discretion of the district
judge.” Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983). According
to the Seventh Circuit Court of Appeals, “nonfinal orders are generally modifiable.” Sims v. EGA
Prods., Inc., 475 F.3d 865, 870 (7th Cir. 2007). With that said, motions for reconsideration
generally serve a limited purpose—“to correct manifest errors of law or fact or to present newly
discovered evidence.” Rodriguez v. City of Chicago, 2012 WL 4795702, at *1 (N.D. Ill. 2012)

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(quoting Caisse v. Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir.
1996)).
There is no question that Tanzin renders this Court’s prior decision on the same issue
erroneous, and the Court finds that it is an error warranting reinstatement of Count 8 against
Defendants Fozzard, Roal, Hollingsworth, Parent, Barney, Irvin, Cardona, Winklmeier, Neumann,
Szoke, Rivas, Alexander, and Howard. Defendant Roloff, who was also named in connection with
this claim, was dismissed from this action with prejudice on different grounds, and Plaintiff has
not challenged this dismissal. (Doc. 230, p. 5).
The Court rejects Defendants’ invitation to leave its Order dismissing Count 8 undisturbed
because qualified immunity shields the individual defendants from liability. This is an affirmative
defense that may shield some or all of the defendants from liability. However, the issue has neither
been properly raised nor fully briefed. If Defendants seek to raise the issue, they are free to do so
in a separate dispositive motion.
MOTIONS TO STRIKE / DISMISS FIFTH AMENDED COMPLAINT (Docs. 259 and 260)
When the Court dismissed Count 8 against the individual defendants, it also granted
Plaintiff leave to file a Fifth Amended Complaint adding only a claim for injunctive relief against
the BOP. (See Doc. 230, 251, and 256). Although he filed a timely Fifth Amended Complaint,
Plaintiff did not comply with the Court’s Orders to only add a claim for injunctive relief against
the BOP. In addition to re-pleading claims that were previously dismissed, Plaintiff set forth
additional factual allegations against then-dismissed defendants in Count 8. This is certainly not
the first time Plaintiff has failed to properly amend a complaint in direct violation of the Court’s
instructions and orders. He was previously warned that the Court will not tolerate more haphazard
amendments. See Doc. 230 (“This case has now dragged on for five years and is barely past the

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pleading stage. Because of Ajaj’s extremely haphazard approach in his pleadings, the Court has
had to warn him again and again about what he can and cannot do when filing new complaints.
(Docs. 137, 140). The Court will not grant him further leniency.”). The Fifth Amended Complaint
violates this Court’s Orders at Documents 230, 251, and 256, and it shall be dismissed.
Accordingly, Defendant BOP’s Motion to Strike Fifth Amended Complaint (Doc. 259) and
Defendants’ Motion to Dismiss Fifth Amended Complaint are GRANTED. The Fourth Amended
Complaint now controls this action.
DISPOSITION
IT IS ORDERED that Plaintiff’s First Motion for Reconsideration of Memorandum and
Order dated August 13, 2019 (Doc. 268), Defendant Federal Bureau of Prison’s Motion to Strike
Fifth Amended Complaint (Doc. 259) and Defendants’ Motion to Dismiss Fifth Amended
Complaint (Doc. 260) are GRANTED.
IT IS ORDERED that COUNT 8 is REINSTATED against Defendants Fozzard, Roal,
Hollingsworth, Parent, Baney, Irvin, Cardona, Winklmeier, Neumann, Szoke, Rivas, Alexander,
and Howard.
The Clerk’s Office is DIRECTED to REINSTATE Fozzard, Roal, Hollingsworth, Parent,
Baney, Irvin, Cardona, Winklmeier, Neumann, Szoke, Rivas, Alexander, and Howard as
defendants in CM/ECF and TERMINATE all other defendants as parties to this action.
The Fourth Amended Complaint (Doc. 221) now serves as the operative complaint.
Count 1 will proceed against Defendant Fozzard, and Count 8 will proceed against Defendants
Fozzard, Roal, Hollingsworth, Parent, Baney, Irvin, Cardona, Winklmeier, Neumann, Szoke,
Rivas, Alexander, and Howard.

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The Scheduling Clerk is DIRECTED to set a date and time for a telephonic status
conference as soon as possible.
IT IS SO ORDERED.
DATED: 3/12/2021
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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