Ajaj v. United States of America et al

Filing 5

IT IS HEREBY ORDERED that, on or before December 31, 2014, Plaintiff shall file an amended complaint in compliance with this order. Failure to file an amended complaint will result in the dismissal of this action without prejudice, pursuant to Federal Rule of Civil Procedure 41. (Amended Pleadings due by 12/31/2014). Signed by Judge Staci M. Yandle on 11/25/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AHMAD M. AJAJ,
No. 40637-054,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
BUREAU OF PRISONS,
WENDY J. ROAL,
LISA J.W. HOLLINGSWORTH,
MELISSA WINN,
JEFF BANEY,
JOHN PARENT,
BLAKE R. DAVIS,
ROBERT ROLOFF,
PAUL SCOFIELD,
PAUL HARVEY,
KEITH HARRISON,
JEFFREY IRVIN,
MILTON NEUMANN,
G. FOZZARD,
DAVID SZOKE,
HENRY RIVAS,
STEVEN CARDONA,
BASHAR MURAD,
JEFFRERY D. ALLEN,
MARLA PETERSON,
E. ALEXANDER,
M. WINKLMEIER,
STEVE JULIAN,
BRADFORD,
NEWTON E. KENDIG,
LUKE M. ORMANDY,
LAWRENCE HOWARD, and
MAC MCCLEARY,
Defendants.

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Case No. 14-cv-01245-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
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Plaintiff Ahmad M. Ajaj is an inmate in the United States Penitentiary at Florence,
Colorado. He brings this action seeking redress for a variety of incidents that occurred to him
while he was housed in the Communication Management Unit of the United States Penitentiary
at Marion, Illinois, which is within this judicial district.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility. Id. at 557. At this juncture, the factual
allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

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The Complaint
The 175-page complaint is brought against 29 defendants, including the United States,
the Bureau of Prisons, numerous officials within the Bureau and USP-Marion, healthcare
officials, a correctional officer, and a contract Imam.
In broad terms, Plaintiff Ajaj alleges: (1) he was denied the right to freely practice his
Muslim religion at USP-Marion; (2) excessive force was used against him; (3) he was disciplined
for minor infractions—even “legal” behavior—because he is Muslim; (4) his transfer from USPMarion to USP-Florence-AdMax was unjustified; and (5) those making the decision to transfer
him were aware of his many medical ailments, yet he was transferred to a facility that cannot
offer him the environment and care he requires. Each of those broad categories includes multiple
subclaims.
Plaintiff pursues claims under the Constitution in accord with Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He also relies upon the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680; the Administrative
Procedures Act (“APA”), 5 U.S.C. §§ 701-06; the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq.; the Illinois Religious Freedom
Restoration Act (“IRFRA”), 775 ILCS 35/1 et seq.; the Rehabilitation Act, 29 U.S.C. § 701, et
seq.; and the Alien Tort Statute, 28 U.S.C. § 1350, which confers jurisdiction over “any civil
action by an alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.”

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Discussion
A preliminary review of the complaint raises two immediate and related concerns: its
length and breadth. Although neither is fatal, for the reasons that follow, Plaintiff Ajaj will be
given an opportunity to reconsider how he desires to proceed, as his many claims clearly cannot
be brought in a single action.
Federal Rules of Civil Procedure 8 and 10
Federal Rule of Civil Procedure 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Each
allegation must be simple, concise, and direct.” Id. 8(d)(1). Rule 10 requires claims be set forth
in separate numbered paragraphs, “each limited as far as practicable to a single set of
circumstances,” and also requires that “each claim founded on a separate transaction or
occurrence” be “stated in a separate count” if “doing so would promote clarity.” Id. 10(b).
At 175 pages, the complaint is certainly long. However, undue length alone does not
warrant the dismissal of a complaint if it nevertheless sufficiently states a claim for relief.
Stanard v. Nygren, 658 F.3d 792, 797-98 (7th Cir. 2011) (citations omitted). In this situation, the
overall length and many subclaims (e.g., Count 1 has 23 subclaims) are necessary under Rule 10
due to the number of claims, bases for liability, and number of defendants. Even if it is a chore
to get through, the complaint is relatively concise and clearly stated, satisfying Rule 8.
The concerns stemming from length of the complaint are not, therefore, problematic, per
se. Although the claims are set forth in the format prescribed by Rule 10, the number of claims
raises concerns under Federal Rules of Civil Procedure 18 and 20.

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Federal Rules of Civil Procedure 18, 20 and 21
According to Federal Rule of Civil Procedure 18, “[a] party asserting a claim to relief as
an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent
or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an
opposing party.” Fed.R.Civ.P. 18(a). As the Court of Appeals for the Seventh Circuit explained
in George v. Smith, 507 F.3d 605 (7th Cir. 2007), “multiple claims against a single party are fine,
but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant
2. Unrelated claims against different defendants belong in different suits….” Id. at 607. Thus,
in George a complaint asserting 50 distinct claims against 24 defendants was not permitted to
proceed. Had the buckshot complaint proceeded, the plaintiff would have avoided paying
multiple filing fees and avoided the possibility of incurring multiple “strikes” under 28 U.S.C. §
1915(g) for frivolous claims.
Federal Rule of Civil Procedure 20(a) presents a related principle: “[a]ll persons ... may
be joined in one action as defendants if there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or
series of transactions or occurrences and if any question of law or fact common to all defendants
will arise in the action.” For example, “a suit complaining that A defrauded the plaintiff, B
defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in
different transactions—should be rejected.” George, 507 F.3d at 607. Put more succinctly,
discreet and separate claims must be severed if one claim can be resolved despite the outcome of
the other claim. Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424, 442 (7th Cir. 2006).
It does not readily appear that any one defendant is named in all five categories of claims.
Moreover, all five categories of claims are not factually or legally related. The claims regarding

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religious freedom, excessive force, unjustified discipline, the unwarranted transfer, and medical
concerns can each be decided independently from the other claims. Even some of the subclaims
in each category may be separate and distinct.
Insofar as Plaintiff has asserted that there is a conspiracy among all 29 defendants, the
complaint does not adequately plead a conspiracy that could hold the claims together. Claims of
conspiracy necessarily require a certain amount of factual underpinning to survive preliminary
review. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v. Johnson,
457 F.3d 711, 716 (7th Cir. 2006)). “To establish the existence of a conspiracy, a plaintiff must
demonstrate that the conspirators have an agreement to inflict injury or harm upon him.” Sow v.
Fortville Police Dept., 636 F.3d 293, 304–05 (7th Cir. 2011). “The agreement may be inferred
from circumstantial evidence, but only if there is sufficient evidence that would permit a
reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an
understanding to achieve the conspiracy’s objectives.” Id. at 305 (quoting Hernandez v. Joliet
Police Dept., 197 F.3d 256, 263 (7th Cir.1999)). The large number of defendants, who are
spread-out through the Bureau of Prisons in Washington and Kansas City, and the within the
ranks of officials and staff at USP-Marion, make it unlikely that a conspiracy exits. In any event,
the bald assertions in the complaint that the Defendants acted in conspiracy fail to satisfy the
Twombly pleading standard.
Severance of each separate and distinct claim into separate cases is required, pursuant to
Federal Rule of Civil Procedure 21, which in turn would entail the assessment of a an additional
filing fee for each separate action.
The Court should evaluate each claim for purposes of determining which claims must be
severed and whether any “strikes” are warranted. See George, 507 F.3d at 507. However, given

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the five broad categories of claims, the numerous bases for relief, and the plethora of subclaims,
further review is impractical and a poor use of judicial resources. Therefore, Plaintiff will be
given an opportunity to consider how he desires to proceed. He may file an amended complaint
in this case, complying with Rules 8, 10, 18 and 20. If he desires to, he may also open additional
new cases. In any event, at this juncture only the one filing fee for this particular action will be
collected, and no “strikes” will be assessed under section 1915(g).
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, on or before December 31,
2014, Plaintiff shall file an amended complaint in compliance with this order. Failure to file an
amended complaint will result in the dismissal of this action without prejudice, pursuant to
Federal Rule of Civil Procedure 41.
Finally, Plaintiff is ADVISED 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 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: November 25, 2014
s/ STACI M. YANDLE
United States District Judge

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