Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 1 of 33
APPEAL,DISPO,MJ CIV PP,STLMT,TERMED
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:15−cv−00992−RBJ−KLM

Ajaj v. Bureau of Prisons et al Assigned to: Judge R. Brooke Jackson Referred to: Magistrate Judge Kristen L. Mix Case in other court: USCA, 19−01250 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Ahmad Ajaj

Date Filed: 05/11/2015 Date Terminated: 09/14/2018 Jury Demand: Defendant Nature of Suit: 555 Prisoner − Prison Condition Jurisdiction: Federal Question
represented by Danielle C. Jefferis University of Denver−Sturm College of Law 2255 East Evans Avenue Suite 335 Denver, CO 80208−0632 303−871−6155 Email: djefferis@law.du.edu ATTORNEY TO BE NOTICED
Darold W. Killmer Killmer Lane & Newman LLP 1543 Champa Street Suite 400 Denver, CO 80202 303−571−1000 Fax: 303−571−1001 Email: dkillmer@kln−law.com ATTORNEY TO BE NOTICED
Laura Lee Rovner University of Denver−Sturm College of Law 2255 East Evans Avenue Suite 335 Denver, CO 80208−0632 303−871−6140 Fax: 303−871−6847 Email: lrovner@law.du.edu ATTORNEY TO BE NOTICED
Lauren Louise Fontana Civil Rights Education and Enforcement Center−Denver 1245 East Colfax Avenue Suite 400 Denver, CO 80218 303−757−7901 Email: lauren.fontana@ucdenver.edu TERMINATED: 07/24/2015
Lindsey De Soto Webb University of Denver−Sturm College of Law 2255 East Evans Avenue Suite 335 Denver, CO 80208−0632 303−871−6585 Fax: 303−871−6847 Email: lwebb@law.du.edu

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TERMINATED: 08/07/2017
Nicole Brianne Godfrey University of Denver−Sturm College of Law 2255 East Evans Avenue Suite 335 Denver, CO 80208−0632 303−871−6574 Fax: 303−871−6847 Email: ngodfrey@law.du.edu ATTORNEY TO BE NOTICED

V. Defendant Federal Bureau of Prisons

represented by Amy L. Padden Werge Law LLC 2231 North Gaylord Street Denver, CO 80205 303−888−9915 Email: amy@werge.law TERMINATED: 07/24/2017
Clay C. Cook U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0100 Fax: 303−454−0400 Email: clay.cook@usdoj.gov ATTORNEY TO BE NOTICED
Kevin Thomas Traskos U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0100 Fax: 303−454−0408 Email: Kevin.Traskos@usdoj.gov ATTORNEY TO BE NOTICED
Lauren Marie Dickey U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0188 Email: Lauren.Dickey2@usdoj.gov ATTORNEY TO BE NOTICED
Marcy Elizabeth Cook U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0171 Fax: 303−454−0404 Email: marcy.cook@usdoj.gov ATTORNEY TO BE NOTICED
Michelle Renee Bennett

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U.S. Department of Justice−DC−Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov TERMINATED: 12/03/2015

Susan Begesse Prose U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0100 Fax: 303−454−0407 Email: susan.prose@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
John Oliver Warden, in his individual capacity TERMINATED: 01/17/2017

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Michelle Renee Bennett (See above for address) TERMINATED: 12/03/2015

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
David Berkebile Warden, in his individual capacity TERMINATED: 01/17/2017

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Tara Hall Associate Warden, in her individual capacity TERMINATED: 01/17/2017

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
George Knox Religious Counselor, in his individual capacity TERMINATED: 01/17/2017

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
D. (I) Parry in his individual capacity

represented by Amy L. Padden (See above for address)

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TERMINATED: 01/17/2017

TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bill True Warden, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Chris Lamb Associate Warden, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ronald Camacho Physician Assistant, in his individual capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Samantha McCoic Medical Staff, in her individual capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
K. Morrow Medical Staff, in her official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Castle Chaplain, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant

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Jason Henderson Chaplain, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kenneth Crank Inmate Trust Fund Supervisor, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Roger Huddleston Nurse, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
D. Parry Officer, in his official capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
USA TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Clay C. Cook (See above for address) ATTORNEY TO BE NOTICED

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Chris (I) Lamb in his individual capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Defendant
K. (I) Morrow in her individual capacity TERMINATED: 10/25/2016

represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017

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Defendant Michael (I) Castle in his individual capacity TERMINATED: 10/25/2016
Defendant Jason (I) Henderson in his individual capacity TERMINATED: 10/25/2016
Defendant Kenneth (I) Crank in his individual capacity TERMINATED: 10/25/2016
Defendant Roger (I) Huddleston in his individual capacity TERMINATED: 10/25/2016
Defendant Calvin Johnson Associate Warden, in his individual capacity TERMINATED: 12/04/2015

Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED
represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED
represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED
represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED
represented by Amy L. Padden (See above for address) TERMINATED: 07/24/2017
Susan Begesse Prose (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/11/2015
05/11/2015 05/11/2015

# Docket Text
1 COMPLAINT against Bureau of Prisons, John Oliver (Filing fee $ 400,Receipt Number 1082−4406534)Attorney Lauren Louise Fontana added to party Ahmad Ajaj(pty:pla), filed by Ahmad Ajaj. (Attachments: # 1 Summons Bureau of Prisons, # 2 Summons John Oliver, # 3 Civil Cover Sheet)(Fontana, Lauren) (Entered: 05/11/2015)
2 NOTICE of Entry of Appearance by Lindsey De Soto Webb on behalf of Ahmad AjajAttorney Lindsey De Soto Webb added to party Ahmad Ajaj(pty:pla) (Webb, Lindsey) (Entered: 05/11/2015)
3 Case assigned to Magistrate Judge Gordon P. Gallagher Text Only Entry (dbera, ) (Entered: 05/11/2015)

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05/12/2015 05/14/2015 05/14/2015 05/14/2015 05/18/2015 05/21/2015
06/08/2015 06/08/2015 07/08/2015 07/15/2015 07/24/2015 07/24/2015
08/04/2015 08/04/2015 08/04/2015
08/04/2015
08/06/2015

4 SUMMONS issued by Clerk. Magistrate Judge Consent form issued pursuant to Local Rule (Attachments: # 1 Summons, # 2 Magistrate Judge Consent Form) (dbera, ) (Entered: 05/12/2015)
5 ORDER Drawing Case; This case shall be drawn to a presiding judge and, if applicable, to a magistrate judge, by Magistrate Judge Gordon P. Gallagher on 5/14/15. (morti, ) (Entered: 05/14/2015)
6 CASE REASSIGNED pursuant to 5 Order. This case is reassigned to Magistrate Judge Kristen L. Mix. All future pleadings should be designated as 15−cv−00992−KLM. (Text Only Entry) (morti, ) (Entered: 05/14/2015)
7 Magistrate Judge Consent Form issued pursuant to Magistrate Judge Pilot Project to Assign Civil Cases to Full Time Magistrate Judges (morti, ) (Entered: 05/14/2015)
8 Duplicate SUMMONES issued by Clerk. Summones were already issued by the clerk on 05/12/2015 (sphil, ) Modified on 5/18/2015 (sphil, ). (Entered: 05/18/2015)
9 NOTICE of Entry of Appearance by Amy L. Padden on behalf of Bureau of Prisons, John OliverAttorney Amy L. Padden added to party Bureau of Prisons(pty:dft), Attorney Amy L. Padden added to party John Oliver(pty:dft) (Padden, Amy) (Entered: 05/21/2015)
10 SUMMONS Returned Executed upon defendant(s) Bureau of Prisons served on 5/26/2015, answer due 7/27/2015. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Webb, Lindsey) (Entered: 06/08/2015)
11 SUMMONS Returned Executed upon defendant(s) John Oliver served on 5/21/2015, answer due 7/20/2015. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Webb, Lindsey) (Entered: 06/08/2015)
12 NOTICE of Entry of Appearance by Nicole Brianne Godfrey on behalf of Ahmad AjajAttorney Nicole Brianne Godfrey added to party Ahmad Ajaj(pty:pla) (Godfrey, Nicole) (Entered: 07/08/2015)
13 STIPULATION for Extension of Time to Answer or Respond to the Complaint by Defendants John Oliver, Bureau of Prisons. John Oliver answer due 8/7/2015; Bureau of Prisons answer due 8/7/2015. (Padden, Amy) (Entered: 07/15/2015)
14 Unopposed MOTION to Withdraw as Attorney by Plaintiff Ahmad Ajaj. (Fontana, Lauren) (Entered: 07/24/2015)
15 ORDER granting 14 Motion to Withdraw as Attorney. Attorney Lauren Fontana is relieved of any further representation of Plaintiff. The Clerk of Court is instructed to terminate Attorney Fontana as counsel of record, and to remove this name from the electronic certificate of mailing. Plaintiff shall continue to be represented by Attorneys Lindsey Webb and Nicole Godfrey. by Magistrate Judge Kristen L. Mix on 7/24/2015. Text Only Entry(klmlc2, ) (Entered: 07/24/2015)
16 CONSENT to Jurisdiction of Magistrate Judge by Plaintiff Ahmad Ajaj Consent not achieved by parties.. (Godfrey, Nicole) (Entered: 08/04/2015)
17 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint, by Defendants Bureau of Prisons, John Oliver. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 08/04/2015)
18 MINUTE ORDER re: 16 Consent Form in which the parties inform the Court that at that least one party in this civil action does not consent tohave a United States magistrate judge conduct all proceedings. Accordingly,IT IS HEREBY ORDERED that this case shall be assigned to a district judge underD.C.COLO.LCivR 40.1(a), by Magistrate Judge Kristen L. Mix on 8/4/15. (morti, ) (Entered: 08/04/2015)
19 CASE REASSIGNED pursuant to 16 Consent to Jurisdiction of Magistrate Judge. Consent not achieved. This case is reassigned to Judge R. Brooke Jackson. All future pleadings should be designated as 15−cv−00992−RBJ−KLM. (Text Only Entry) (morti, ) (Entered: 08/04/2015)
20 ORDER TO SET SCHEDULING CONFERENCE: The parties are ordered to set an initial scheduling conference in this Court (with Judge Jackson) pursuant to Fed. R.

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08/18/2015 09/02/2015 09/08/2015 09/09/2015 09/18/2015 09/18/2015 09/28/2015 09/29/2015 10/09/2015
10/10/2015 10/16/2015
10/16/2015 10/19/2015

Civ. P. 16(b) and D.C.COLO.LCivR 16.1 no later than 45 days after the answer, motion to dismiss or other response to the complaint is filed. Please see the order for details. By Judge R. Brooke Jackson on 8/6/2015. (rbjsec. ) (Entered: 08/06/2015)
21 NOTICE of Entry of Appearance by Laura Lee Rovner on behalf of Ahmad AjajAttorney Laura Lee Rovner added to party Ahmad Ajaj(pty:pla) (Rovner, Laura) (Entered: 08/18/2015)
22 ORDER granting 17 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint. Defendants Bureau of Prisons and John Oliver's answer or response is now due 9/8/2015. By Judge R. Brooke Jackson on 9/2/2015. Text Only Entry(rbjsec.) (Entered: 09/02/2015)
23 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint, by Defendants Bureau of Prisons, John Oliver. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 09/08/2015)
24 ORDER granting 23 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint. Defendants Bureau of Prisons and John Oliver's answer now due by 9/18/2015. By Judge R. Brooke Jackson on 9/9/15. Text Only Entry(rbjsec.) (Entered: 09/09/2015)
25 NOTICE of Entry of Appearance by Michelle Renee Bennett on behalf of Bureau of Prisons, John OliverAttorney Michelle Renee Bennett added to party Bureau of Prisons(pty:dft), Attorney Michelle Renee Bennett added to party John Oliver(pty:dft) (Bennett, Michelle) (Entered: 09/18/2015)
26 MOTION to Dismiss for Lack of Jurisdiction by Defendants Bureau of Prisons, John Oliver. (Attachments: # 1 Declaration of Clay C. Cook, # 2 Attachment 1, # 3 Attachment 2, # 4 Attachment 3)(Bennett, Michelle) (Entered: 09/18/2015)
27 Unopposed MOTION for Leave to Appear as Student Attorney by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 09/28/2015)
28 ORDER granting 27 Unopposed MOTION for Leave to Appear as Student Attorney. Student attorney Ellen Giarratana may appear as counsel for Plaintiff in this matter under the supervision of Laura Rovner and Nicole Godfrey. By Judge R. Brooke Jackson on 9/29/15. Text Only Entry(rbjsec. ) (Entered: 09/29/2015)
29 AMENDED COMPLAINT against Bureau of Prisons, John Oliver, Bill True, John Oliver, David Berkebile, Tara Hall, Chris Lamb, Calvin Johnson, Ronald Camacho, Samantha McCoic, K Morrow, Michael Castle, Jason Henderson, George Knox, Kenneth Crank, Roger Huddleston, D Parry, United States of America, filed by Ahmad Ajaj.(Godfrey, Nicole) (Entered: 10/09/2015)
30 NOTICE of Filing Amended Pleading re 1 Complaint, by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit)(Godfrey, Nicole) (Entered: 10/10/2015)
31 SUMMONS REQUEST as to United States of America, Bill True, David Berkebile, Tara Hall, Chris Lamb, Calvin Johnson, Ronald Camacho, Samantha McCoic, K. Morrow, Michael Castle, Jason Henderson, George Knox, Kenneth Crank, Roger Huddleston, D. Parry by Plaintiff Ahmad Ajaj. (Attachments: # 1 Summons United States of America, # 2 Summons Bill True, # 3 Summons David Berkebile, # 4 Summons Tara Hall, # 5 Summons Chris Lamb, # 6 Summons Calvin Johnson, # 7 Summons Ronald Camacho, # 8 Summons Samantha McCoic, # 9 Summons K. Morrow, # 10 Summons Michael Castle, # 11 Summons Jason Henderson, # 12 Summons George Knox, # 13 Summons Kenneth Crank, # 14 Summons Roger Huddleston, # 15 Summons D. Parry)(Godfrey, Nicole) (Entered: 10/16/2015)
32 Administrative Notice: The 31 Summonses submitted are incomplete and will not be issued. Please complete the forms for issuance using the event Summons Request. (Text Only Entry) (athom, ) (Entered: 10/16/2015)
33 SUMMONS REQUEST as to United States of America, Bill True, David Berkebile, Tara Hall, Chris Lamb, Calvin Johnson, Ronald Camacho, Samantha McCoic, K. Morrow, Michael Castle, Jason Henderson, George Knox, Kenneth Crank, Roger Huddleston, D. Parry by Plaintiff Ahmad Ajaj. (Attachments: # 1 Summons United

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10/20/2015 10/22/2015 10/22/2015 10/23/2015
10/26/2015 10/27/2015
10/30/2015 12/03/2015 12/03/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015

States of America, # 2 Summons Bill True, # 3 Summons David Berkebile, # 4 Summons Tara Hall, # 5 Summons Chris Lamb, # 6 Summons Calvin Johnson, # 7 Summons Ronald Camacho, # 8 Summons Samantha McCoic, # 9 Summons K. Morrow, # 10 Summons Michael Castle, # 11 Summons Jason Henderson, # 12 Summons George Knox, # 13 Summons Kenneth Crank, # 14 Summons Roger Huddleston, # 15 Summons D. Parry)(Godfrey, Nicole) (Entered: 10/19/2015)
34 SUMMONSES issued by Clerk. (athom, ) (Entered: 10/20/2015)
35 SUMMONS REQUEST as to John Oliver by Plaintiff Ahmad Ajaj. (Attachments: # 1 Summons John Oliver)(Godfrey, Nicole) (Entered: 10/22/2015)
36 SUMMONS issued by Clerk. (athom, ) (Entered: 10/22/2015)
37 ORDER finding as moot 26 Motion to Dismiss for Lack of Jurisdiction. This motion appears to be moot in light of the filing of an amended (and substantially different) complaint. by Judge R. Brooke Jackson on 10/23/15. Text Only Entry(rbj) (Entered: 10/23/2015)
38 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint, by Defendant Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 10/26/2015)
39 ORDER granting 38 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint. Federal Bureau of Prisons answer is now due by 12/28/2015. By Judge R. Brooke Jackson on 10/27/15. Text Only Entry(rbjsec.) (Entered: 10/27/2015)
40 SUMMONS Returned Executed upon United States of America defendant(s) USA served on 10/27/2015, answer due 12/28/2015. (Attachments: # 1 Proof of Service − Walsh)(Godfrey, Nicole) (Entered: 10/30/2015)
41 Unopposed MOTION to Withdraw as Attorney by Defendants Federal Bureau of Prisons, John Oliver. (Bennett, Michelle) (Entered: 12/03/2015)
42 ORDER granting 41 Unopposed Motion to Withdraw as Attorney. Attorney Michelle Renee Bennett is withdrawn. By Judge R. Brooke Jackson on 12/3/15. Text Only Entry(rbjsec. ) (Entered: 12/03/2015)
43 SUMMONS Returned Executed by Ahmad Ajaj. Tara Hall served on 11/20/2015, answer due 12/11/2015. (Godfrey, Nicole) (Entered: 12/04/2015)
44 SUMMONS Returned Executed by Ahmad Ajaj. Chris Lamb served on 11/24/2015, answer due 12/15/2015; Chris (I) Lamb served on 11/24/2015, answer due 12/15/2015. (Godfrey, Nicole) (Entered: 12/04/2015)
45 NOTICE of Voluntary Dismissal of Party Calvin Johnson by Plaintiff Ahmad Ajaj (Godfrey, Nicole) (Entered: 12/04/2015)
46 SUMMONS Returned Executed upon defendant(s) K. Morrow served on 11/20/2015, answer due 1/19/2016; K. (I) Morrow served on 11/20/2015, answer due 1/19/2016. (Godfrey, Nicole) (Entered: 12/04/2015)
47 SUMMONS Returned Executed upon defendant(s) Tara Hall served on 11/20/2015, answer due 1/19/2016. (Godfrey, Nicole) (Entered: 12/04/2015)
48 SUMMONS Returned Executed upon defendant(s) Chris Lamb served on 11/24/2015, answer due 1/25/2016; Chris (I) Lamb served on 11/24/2015, answer due 1/25/2016. (Godfrey, Nicole) (Entered: 12/04/2015)
49 WAIVER OF SERVICE Returned Executed by Ahmad Ajaj. David Berkebile waiver sent on 10/27/2015, answer due 12/28/2015; Ronald Camacho waiver sent on 10/27/2015, answer due 12/28/2015; Michael Castle waiver sent on 10/27/2015, answer due 12/28/2015; Michael (I) Castle waiver sent on 10/27/2015, answer due 12/28/2015; Kenneth Crank waiver sent on 10/27/2015, answer due 12/28/2015; Kenneth (I) Crank waiver sent on 10/27/2015, answer due 12/28/2015; Jason Henderson waiver sent on 10/27/2015, answer due 12/28/2015; Jason (I) Henderson waiver sent on 10/27/2015, answer due 12/28/2015; Roger Huddleston waiver sent on 10/27/2015, answer due 12/28/2015; Roger (I) Huddleston waiver sent on 10/27/2015,

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 10 of 33

12/04/2015 12/04/2015 12/26/2015
12/28/2015
01/11/2016 01/18/2016
01/19/2016 01/25/2016 01/26/2016 02/03/2016
02/04/2016

answer due 12/28/2015; John Oliver waiver sent on 10/27/2015, answer due 12/28/2015; D. Parry waiver sent on 10/27/2015, answer due 12/28/2015; D. (I) Parry waiver sent on 10/27/2015, answer due 12/28/2015; Bill True waiver sent on 10/27/2015, answer due 12/28/2015. (Godfrey, Nicole) (Entered: 12/04/2015)
50 SUMMONS Returned Executed upon defendant(s) George Knox served on 11/21/2015, answer due 1/20/2016. (Godfrey, Nicole) (Entered: 12/04/2015)
51 Party Calvin Johnson (Associate Warden, in his individual capacity) terminated pursuant to the 45 Notice of Dismissal of Party filed in this case on 12/04/2015. Text Only Entry (athom, ) (Entered: 12/07/2015)
52 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint, and to Set Consolidated Response Date by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 12/26/2015)
53 ORDER granting 52 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint, and to Set Consolidated Response Date The deadline to respond to the Amended Complaint and consolidated response date for all defendants is 1/25/2016. However, between now and then, the Court suggests that counsel meet (in person) and confer concerning precisely what equitable relief plaintiff seeks; the penological reasons, if any, as to why each request must be refused; and whether the parties could resolve these issues without plunging headlong into protracted litigation. By Judge R. Brooke Jackson on 12/28/15. Text Only Entry(rbjsec.) (Entered: 12/28/2015)
54 SUMMONS Returned Executed upon defendant(s) Samantha McCoic served on 12/10/2015, answer due 2/8/2016. (Godfrey, Nicole) (Entered: 01/11/2016)
55 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint, by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 01/18/2016)
56 ORDER granting 55 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint. The deadline is now February 8, 2016. By Judge R. Brooke Jackson on 1/19/16. Text Only Entry(rbjsec. ) (Entered: 01/19/2016)
57 Unopposed MOTION for Leave to Appear as Student Attorney by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit Law Student Appearance Form)(Godfrey, Nicole) (Entered: 01/25/2016)
58 ORDER granting 57 Unopposed MOTION for Leave to Appear as Student Attorney. B y Judge R. Brooke Jackson on 1/26/16. Text Only Entry(rbjsec.) (Entered: 01/26/2016)
59 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint, for two days by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 02/03/2016)
60 ORDER granting 59 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint, for two days by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank,

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02/04/2016
02/05/2016 02/10/2016 02/10/2016 02/10/2016
02/17/2016 02/18/2016 03/01/2016
03/02/2016 03/02/2016 03/02/2016 03/02/2016

Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. The defendants response is now due on or before February 10, 2016. By Judge R. Brooke Jackson on 2/4/16. Text Only Entry(rbjsec. ) (Entered: 02/04/2016)
61 Unopposed MOTION for Leave to File Excess Pages / Extend Page Limits for Motions to Dismiss by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 02/04/2016)
62 ORDER granting 61 Unopposed MOTION for Leave to File Excess Pages / Extend Page Limits for Motions to Dismiss. By Judge R. Brooke Jackson on 2/5/16. Text Only Entry(rbjsec. ) (Entered: 02/05/2016)
63 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by Defendant USA. (Padden, Amy) (Entered: 02/10/2016)
64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants, MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants by Defendants Michael Castle, Kenneth Crank, Federal Bureau of Prisons, Jason Henderson, Roger Huddleston, Chris Lamb, K. Morrow, D. Parry, Bill True. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Padden, Amy) (Entered: 02/10/2016)
65 MOTION to Dismiss for Failure to State a Claim by Individual−Capacity Defendants, MOTION to Dismiss for Lack of Jurisdiction by Individual−Capacity Defendants by Defendants David Berkebile, Ronald Camacho, Michael (I) Castle, Kenneth (I) Crank, Tara Hall, Jason (I) Henderson, Roger (I) Huddleston, George Knox, Chris (I) Lamb, Samantha McCoic, K. (I) Morrow, John Oliver, D. (I) Parry. (Padden, Amy) (Entered: 02/10/2016)
66 Unopposed MOTION for Leave to File Excess Pages /Extend Page Limits For Plaintiff's Responses to Defendants' Motions to Dismiss by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 02/17/2016)
67 ORDER granting 66 Unopposed MOTION for Leave to File Excess Pages /Extend Page Limits For Plaintiff's Responses to Defendants' Motions to Dismiss. By Judge R. Brooke Jackson on 2/18/16. Text Only Entry(rbjsec. ) (Entered: 02/18/2016)
68 Unopposed MOTION to Stay on Individual−Capacity Claims by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Tara Hall, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. (I) Parry. (Padden, Amy) (Entered: 03/01/2016)
69 ORDER granting 68 Unopposed MOTION to Stay on Individual−Capacity Claims. By Judge R. Brooke Jackson on 3/2/2016. Text Only Entry(rbjsec. ) (Entered: 03/02/2016)
70 RESPONSE to 63 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 03/02/2016)
71 RESPONSE to 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants filed by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 03/02/2016)
72 RESPONSE to 65 MOTION to Dismiss for Failure to State a Claim by Individual−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Individual−Capacity Defendants filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Godfrey, Nicole) (Entered: 03/02/2016)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 12 of 33

03/07/2016 03/17/2016 03/21/2016
03/21/2016
03/21/2016 03/21/2016 03/22/2016 03/22/2016 03/24/2016
03/24/2016 04/25/2016

73 MINUTE ORDER: A Scheduling Conference set for March 24, 2016 at 1:30 p.m. in Courtroom A 902 before Judge R. Brooke Jackson. By Judge R. Brooke Jackson on 3/7/16. Text Only Entry (rbjsec. ) (Entered: 03/07/2016)
74 Proposed Scheduling Order by Plaintiff Ahmad Ajaj. (Webb, Lindsey) (Entered: 03/17/2016)
75 Unopposed MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants, 65 MOTION to Dismiss for Failure to State a Claim by Individual−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Individual−Capacity Defendants for One−day by Defendants David Berkebile, Ronald Camacho, Michael Castle, Kenneth Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 03/21/2016)
76 Unopposed MOTION for Leave to Extend Page Limits for Replies 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants, 65 MOTION to Dismiss for Failure to State a Claim by Individual−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Individual−Capacity Defendants by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 03/21/2016)
77 ORDER granting 75 Motion for Extension of Time to File Replies − replies are due 3/22/16 ; granting 76 Motion to Extend Page Limits for Defendants' Replies to Motions to Dismiss − page limit is increased to 10 pages per reply. by Judge R. Brooke Jackson on 3/21/16. Text Only Entry(jdyne, ) (Entered: 03/21/2016)
78 REPLY to Response to 63 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Defendant USA. (Padden, Amy) (Entered: 03/21/2016)
79 REPLY to Response to 65 MOTION to Dismiss for Failure to State a Claim by Individual−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Individual−Capacity Defendants filed by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth (I) Crank, Tara Hall, Jason (I) Henderson, Roger (I) Huddleston, George Knox, Chris (I) Lamb, Samantha McCoic, K. (I) Morrow, John Oliver, D. (I) Parry. (Padden, Amy) (Entered: 03/22/2016)
80 REPLY to Response to 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit A)(Padden, Amy) (Entered: 03/22/2016)
81 MINUTE ORDER: After review of the pleadings, the Court will refer the pending motions to dismiss to the assigned magistrate judge. The Scheduling Conference set this afternoon is VACATED. The Court will reschedule the scheduling conference as necessary after the pending dispositive motions are resolved. The Court notes that the complaint is excessively long and that numerous issues have been raised including jurisdiction. In the circumstances, it would not be useful to conduct a scheduling conference at this time. By Judge R. Brooke Jackson on 3/24/16. Text Only Entry (rbjsec. ) (Entered: 03/24/2016)
82 ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix, as indicated.Motions 63 , 64 and 65 referred to Magistrate Judge Kristen L. Mix by Judge R. Brooke Jackson on 3/24/16. (jdyne, ) (Entered: 03/24/2016)
83 Unopposed MOTION for Hearing/Conference re 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants, 65 MOTION to Dismiss for Failure to State a Claim by Individual−Capacity Defendants MOTION to Dismiss for Lack of

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 13 of 33

04/26/2016
06/06/2016 06/08/2016
06/09/2016 06/14/2016
06/24/2016 06/24/2016 06/28/2016 07/06/2016
07/06/2016 07/07/2016 08/11/2016

Jurisdiction by Individual−Capacity Defendants, 63 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 04/25/2016)
84 MEMORANDUM regarding 83 Unopposed MOTION for Hearing/Conference re 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants, 65 MOTION to Dismiss for filed by Ahmad Ajaj. Motion 83 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 4/26/16. Text Only Entry (rbjsec.) (Entered: 04/26/2016)
85 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 6/6/16. Unopposed Motion for Oral Argument on Defendants' Motions to Dismiss 83 is GRANTED. Motion Hearing set for 6/29/2016 9:30 AM in Courtroom A401 before Magistrate Judge Kristen L. Mix.(lgale, ) (Entered: 06/06/2016)
86 Unopposed MOTION to Reset Motions Hearing by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Padden, Amy) (Entered: 06/08/2016)
87 MEMORANDUM regarding 86 Unopposed MOTION to Reset Motions Hearing. Motion 86 is referred to Magistrate Judge Kristen L. Mix, By Judge R. Brooke Jackson on 6/9/16. Text Only Entry (rbjsec. ) (Entered: 06/09/2016)
88 MINUTE ORDER; Defendants' 86 Unopposed Motion to Reset Motions Hearing is GRANTED. Motions Hearing on the Motions to Dismiss [#63, #64, #65] set for 6/29/2016 9:30 AM is VACATED and RESET to 7/7/2016 09:30 AM in Courtroom A 401 before Magistrate Judge Kristen L. Mix. Each side shall be limited to no more than one hour, by Magistrate Judge Kristen L. Mix on 6/14/16.(morti, ) (Entered: 06/14/2016)
89 Unopposed MOTION to Withdraw as Attorney Student Attorney Ellen Giarratana by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 06/24/2016)
90 ORDER granting 89 Unopposed MOTION to Withdraw as Attorney Student Attorney Ellen Giarratana. By Judge R. Brooke Jackson on 6/24/16. Text Only Entry(rbjsec. ) (Entered: 06/24/2016)
91 NOTICE of Supplemental Authorities re: 72 Response to Motion, 71 Response to Motion by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit)(Godfrey, Nicole) (Entered: 06/28/2016)
92 SUPPLEMENT/AMENDMENT to 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit A − Medication records, # 2 Exhibit B − SPO, # 3 Exhibit C − Commissary list, # 4 Exhibit D − Commissary purchases)(Padden, Amy) (Entered: 07/06/2016)
93 SUPPLEMENT/AMENDMENT to 71 Response to Motion to Dismiss Official Capacity Claims (Doc. 64) by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (Part 1), # 3 Exhibit 2 (Part 2))(Godfrey, Nicole) (Entered: 07/06/2016)
94 MINUTE ENTRY for proceedings held before Magistrate Judge Kristen L. Mix on 7/7/2016. Defendant United States' Motion to Dismiss # 63 , Defendants' Motion to Dismiss Official−Capacity Claims # 64 , and Defendants' Motion to Dismiss Individual−Capacity Claims # 65 are TAKEN UNDER ADVISEMENT. FTR: KLM Courtroom A401. (lgale, ) (Entered: 07/07/2016)
95 NOTICE of Entry of Appearance by Danielle C. Jefferis on behalf of Ahmad AjajAttorney Danielle C. Jefferis added to party Ahmad Ajaj(pty:pla) (Jefferis, Danielle) (Entered: 08/11/2016)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 14 of 33

08/12/2016 08/30/2016
09/12/2016 09/13/2016 09/13/2016
09/13/2016 09/14/2016

96 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 95 Notice of Entry of Appearance filed by attorney Danielle C. Jefferis. DO NOT REFILE THE DOCUMENT. Action to take − counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil Cases). (Text Only Entry) (athom, ) (Entered: 08/12/2016)
97 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 8/30/16 re Motion to Dismiss 63 , Motion to Dismiss Official−Capacity Claims 64 and Motion to Dismiss Individual−Capacity Claims 65 . IT IS HEREBY RECOMMENDED that the United States Motion 63 be GRANTED, that the Official Capacity Motion 64 be GRANTED in part and DENIED in part, and that the Individual Capacity Motion 65 be GRANTED in part and DENIED in part, and that Defendants True, Lamb, Camacho, McCoic, Morrow, Castle, Henderson,Crank, Huddleston, and the United States be dismissed from this lawsuit. (lgale, ) (Entered: 08/30/2016)
98 Unopposed MOTION for Leave to Appear as Student Attorneys by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only) Law Student Appearance Form (DiRenzo), # 2 Proposed Order (PDF Only) Law Student Appearance Form (Roisman))(Godfrey, Nicole) (Entered: 09/12/2016)
99 ORDER granting 98 Unopposed MOTION for Leave to Appear as Student Attorneys. By Judge R. Brooke Jackson on 9/13/16. Text Only Entry(rbjsec. ) (Entered: 09/13/2016)
100 Unopposed MOTION for Extension of Time to File Objections to 97 Recommendation of Magistrate Judge by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) Modified on 9/14/2016 to create linkage and to correct event (athom, ). (Entered: 09/13/2016)
101 OBJECTION to 97 Report and Recommendations of United States Magistrate Judge and Request for Oral Argument filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Jefferis, Danielle) (Entered: 09/13/2016)
102 NOTICE of Entry of Appearance by Susan Begesse Prose on behalf of David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USAAttorney Susan Begesse Prose added to party David Berkebile(pty:dft), Attorney Susan Begesse Prose added to party Ronald Camacho(pty:dft), Attorney Susan Begesse Prose added to party Michael Castle(pty:dft), Attorney Susan Begesse Prose added to party Michael (I) Castle(pty:dft), Attorney Susan Begesse Prose added to party Kenneth Crank(pty:dft), Attorney Susan Begesse Prose added to party Kenneth (I) Crank(pty:dft), Attorney Susan Begesse Prose added to party Federal Bureau of Prisons(pty:dft), Attorney Susan Begesse Prose added to party Tara Hall(pty:dft), Attorney Susan Begesse Prose added to party Jason Henderson(pty:dft), Attorney Susan Begesse Prose added to party Jason (I) Henderson(pty:dft), Attorney Susan Begesse Prose added to party Roger Huddleston(pty:dft), Attorney Susan Begesse Prose added to party Roger (I) Huddleston(pty:dft), Attorney Susan Begesse Prose added to party George Knox(pty:dft), Attorney Susan Begesse Prose added to party Chris Lamb(pty:dft), Attorney Susan Begesse Prose added to party Chris (I) Lamb(pty:dft), Attorney Susan Begesse Prose added to party Samantha McCoic(pty:dft), Attorney Susan Begesse Prose added to party K. Morrow(pty:dft), Attorney Susan Begesse Prose added to party K. (I) Morrow(pty:dft), Attorney Susan Begesse Prose added to party John Oliver(pty:dft), Attorney Susan Begesse Prose added to party D. Parry(pty:dft), Attorney Susan Begesse Prose added to party D. (I) Parry(pty:dft), Attorney Susan Begesse Prose added to party Bill True(pty:dft), Attorney Susan Begesse Prose added to party USA(pty:dft) (Prose, Susan) (Entered: 09/14/2016)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 15 of 33

09/15/2016 09/15/2016
09/16/2016 09/16/2016 09/27/2016
09/30/2016 09/30/2016 10/18/2016 10/25/2016 11/07/2016 11/07/2016 11/15/2016

103 ORDER denying 100 Unopposed Motion for Extension of Time to File Objections. By Judge R. Brooke Jackson on 9/15/16. Text Only Entry(rbjsec. ) (Entered: 09/15/2016)
104 TRANSCRIPT of Motion Hearing held on July 7, 2016 before Magistrate Judge Mix. Pages: 1−83. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Stevens−Koenig Reporting, ) (Entered: 09/15/2016)
105 OBJECTION to 97 Report and Recommendations filed by Defendants David Berkebile, Ronald Camacho, Michael (I) Castle, Kenneth (I) Crank, Tara Hall, Jason (I) Henderson, Roger (I) Huddleston, George Knox, Chris (I) Lamb, Samantha McCoic, K. (I) Morrow, John Oliver, D. (I) Parry. (Padden, Amy) (Entered: 09/16/2016)
106 OBJECTION to 97 Report and Recommendations filed by Defendant Federal Bureau of Prisons. (Padden, Amy) (Entered: 09/16/2016)
107 RESPONSE to Objection to 97 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants filed by Roger Huddles filed by Defendants David Berkebile, Ronald Camacho, Michael Castle, Michael (I) Castle, Kenneth Crank, Kenneth (I) Crank, Federal Bureau of Prisons, Tara Hall, Jason Henderson, Jason (I) Henderson, Roger Huddleston, Roger (I) Huddleston, George Knox, Chris Lamb, Chris (I) Lamb, Samantha McCoic, K. Morrow, K. (I) Morrow, John Oliver, D. Parry, D. (I) Parry, Bill True, USA. (Prose, Susan) (Entered: 09/27/2016)
108 RESPONSE to Objection to 97 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants filed by Roger Huddles filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1)(Jefferis, Danielle) (Entered: 09/30/2016)
109 RESPONSE to Objection to 97 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants filed by Roger Huddles filed by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 09/30/2016)
110 NOTICE of Supplemental Authorities by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit 1)(Jefferis, Danielle) (Entered: 10/18/2016)
111 ORDER adopting 97 Report and Recommendations; granting 63 Motion to Dismiss ; granting in part and denying in part 64 Motion to Dismiss granting in part and denying in part 65 Motion to Dismiss. by Judge R. Brooke Jackson on 10/25/16.(jdyne, ) (Entered: 10/25/2016)
112 MINUTE ORDER: A Scheduling Conference is set for December 7, 2016 at 9:00 a.m. in Courtroom A 902 before Judge R. Brooke Jackson. By Judge R. Brooke Jackson on 11/7/16. Text Only Entry (rbjsec. ) (Entered: 11/07/2016)
113 STIPULATION for Extension of Time to Answer or Respond to the Complaint by Defendants George Knox, Federal Bureau of Prisons, D. (I) Parry, Tara Hall, John Oliver, David Berkebile. George Knox answer due 11/15/2016; Federal Bureau of Prisons answer due 11/15/2016; D. (I) Parry answer due 11/15/2016; Tara Hall answer due 11/15/2016; John Oliver answer due 11/15/2016; David Berkebile answer due 11/15/2016. (Prose, Susan) (Entered: 11/07/2016)
114 ANSWER to 29 Amended Complaint, by David Berkebile, Tara Hall, George Knox, John Oliver, D. (I) Parry.(Padden, Amy) (Entered: 11/15/2016)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 16 of 33

11/15/2016 11/21/2016 11/21/2016 11/30/2016 12/06/2016 12/06/2016 12/07/2016
12/07/2016
12/07/2016 12/07/2016 12/08/2016
12/09/2016 12/13/2016
12/15/2016

115 ANSWER to 29 Amended Complaint by Federal Bureau of Prisons.(Padden, Amy) Modified on 11/16/2016 to correct linkage (athom, ). (Entered: 11/15/2016)
116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, by Defendants David Berkebile, Tara Hall, George Knox, John Oliver, D. (I) Parry. (Prose, Susan) (Entered: 11/21/2016)
117 MOTION for Reconsideration of Order [Doc. 111 ] by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) Modified on 11/22/2016 to create linkage (athom, ). (Entered: 11/21/2016)
118 Proposed Scheduling Order by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 11/30/2016)
119 Proposed Scheduling Order (Amended) by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 12/06/2016)
120 NOTICE of Supplemental Authorities re: 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, by Defendants David Berkebile, Tara Hall, George Knox, John Oliver, D. (I) Parry (Padden, Amy) (Entered: 12/06/2016)
121 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Scheduling Conference held on 12/7/2016. Discovery due by 6/5/2017, Dispositive Motions due by 7/5/2017. Two week Jury Trial set to commence 1/8/2018 at 9:00 AM in Courtroom A 902 before Judge R. Brooke Jackson with a Trial Preparation Conference on 12/19/2017 at 9:00 AM in Courtroom A 902 before Judge R. Brooke Jackson. Court Reporter: Kara Spitler. (jdyne, ) (Entered: 12/07/2016)
122 ORDER SETTING TRIAL AND TRIAL PREPARATION CONFERENCE: This matter has been scheduled for a two week Jury Trial on the docket of Judge R. Brooke Jackson in the U.S. District Courthouse, Courtroom A902, 9th Floor, 901 19th Street, Denver, Colorado, to commence on January 8, 2018 at 9:00 a.m. A Trial Preparation Conference is set for December 19, 2017 at 9:00 a.m. Please refer to the order for additional details. By Judge R. Brooke Jackson on 12/7/16. (rbjsec.) (Entered: 12/07/2016)
123 Unopposed MOTION for Extension of Time to File Response/Reply as to 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 12/07/2016)
124 SCHEDULING ORDER: by Judge R. Brooke Jackson on 12/7/16. (jdyne, ) (Entered: 12/08/2016)
125 ORDER granting 123 Unopposed MOTION for Extension of Time to File Response/Reply as to 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction, Order on Report and Recommendations. The response will be due December 19, 2016. By Judge R. Brooke Jackson on 12/8/16. Text Only Entry (rbjsec.) (Entered: 12/08/2016)
126 RESPONSE to 117 MOTION for Reconsideration of Order [Doc. 111] filed by Defendants David Berkebile, Tara Hall, George Knox, John Oliver, D. (I) Parry. (Prose, Susan) (Entered: 12/09/2016)
127 NOTICE of Supplemental Authorities re: 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, , 117 MOTION for Reconsideration of Order [Doc. 111] by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit)(Jefferis, Danielle) (Entered: 12/13/2016)
128 Unopposed MOTION for Leave to File Excess Pages /Extend Page Limits for Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Partial

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 17 of 33

12/16/2016 12/19/2016 12/22/2016 12/23/2016
01/03/2017
01/10/2017
01/17/2017
01/31/2017 02/01/2017 02/08/2017 02/24/2017 03/20/2017 03/20/2017 03/22/2017

Reconsideration by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 12/15/2016)
129 ORDER granting 128 Motion for Leave to File Excess Pages. By Judge R. Brooke Jackson on 12/16/16. Text Only Entry (rbjsec. ) (Entered: 12/16/2016)
130 RESPONSE to 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, filed by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 12/19/2016)
131 REPLY to Response to 117 MOTION for Reconsideration of Order [Doc. 111] filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1)(Godfrey, Nicole) (Entered: 12/22/2016)
132 Unopposed MOTION for Extension of Time to File Response/Reply as to 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, , Unopposed MOTION for Leave to File Excess Pages / Extend Page Limits by Defendants David Berkebile, Tara Hall, George Knox, John Oliver, D. (I) Parry. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 12/23/2016)
133 ORDER granting 132 Unopposed MOTION for Extension of Time to File Reply as to 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Dismiss/Lack of Jurisdiction, Order on Report and Recommendations, and for Leave to File Excess Pages / Extend Page Limits. By Judge R. Brooke Jackson on 1/3/17. Text Only Entry (rbjsec. ) Modified on 1/4/2017 to create linkage (athom, ). (Entered: 01/03/2017)
134 REPLY to Response to 116 MOTION for Reconsideration re 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, filed by Defendants David Berkebile, Tara Hall, George Knox, John Oliver, D. (I) Parry. (Padden, Amy) (Entered: 01/10/2017)
135 ORDER: 117 MOTION for Reconsideration of Order [Doc. 111] filed by Ahmad Ajaj is DENIED. 116 MOTION for Reconsideration re 111 Order filed by D. (I) Parry, George Knox, John Oliver, David Berkebile, Tara Hall., George Knox (Religious Counselor, in his individual capacity), John Oliver (Warden, in his individual capacity), D. (I) Parry (in his individual capacity), David Berkebile (Warden, in his individual capacity) and Tara Hall (Associate Warden, in her individual capacity) is GRANTED. Individual defendants are dismissed from this lawsuit. by Judge R. Brooke Jackson on 1/17/17. (jdyne, ) (Entered: 01/17/2017)
136 STIPULATION for Extension of Time to Respond to Discovery Requests by Defendant Federal Bureau of Prisons. (Prose, Susan) (Entered: 01/31/2017)
137 NOTICE of Change of Address/Contact Information by Susan Begesse Prose (Prose, Susan) (Entered: 02/01/2017)
138 NOTICE of Change of Address/Contact Information by Amy L. Padden (Padden, Amy) (Entered: 02/08/2017)
139 NOTICE of Entry of Appearance by Clay C. Cook on behalf of USAAttorney Clay C. Cook added to party USA(pty:dft) (Cook, Clay) (Entered: 02/24/2017)
140 STIPULATION for Extension of Time to Respond to Defendant's Second Set of Discovery by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 03/20/2017)
141 Unopposed MOTION to Amend/Correct/Modify 124 Scheduling Order To Extend All Deadlines by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 03/20/2017)
142 ORDER granting 141 Unopposed MOTION to Amend/Correct/Modify 124 Scheduling Order To Extend All Deadlines. By Judge R. Brooke Jackson on 3/22/17. Text Only Entry (rbjsec. ) (Entered: 03/22/2017)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 18 of 33

05/08/2017 05/09/2017 05/09/2017 05/10/2017
05/11/2017
05/15/2017 05/18/2017 05/18/2017 05/27/2017 05/30/2017
06/09/2017 07/22/2017 07/24/2017 07/27/2017 08/01/2017 08/03/2017 08/07/2017

143 Joint MOTION for Referral for Settlement Conference by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Godfrey, Nicole) (Entered: 05/08/2017)
144 ORDER granting 143 Motion for Referral to Magistrate Judge Mix by Judge R. Brooke Jackson on 5/9/17. (jdyne, ) (Entered: 05/09/2017)
145 AMENDED ORDER REFERRING CASE to Magistrate Judge Mix, as indicated. by Judge R. Brooke Jackson on 5/9/17. (jdyne, ) (Entered: 05/09/2017)
146 Joint MOTION to Amend/Correct/Modify 142 Order on Motion to Amend/Correct/Modify, 124 Scheduling Order to Extend Discovery Deadlines by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only))(Jefferis, Danielle) (Entered: 05/10/2017)
147 ORDER granting 146 Joint MOTION to Amend/Correct/Modify 142 Order on Motion to Amend/Correct/Modify, 124 Scheduling Order to Extend Discovery Deadlines. The Court advises the parties, however, that on this schedule, it is unlikely that they will receive a ruling on any dispositive motion filed on November 20, 2017. The briefing, which would span the holidays, would be completed at or shortly before the time of trial. At most, and even that is unlikely, the Court would gavel grant or deny. So, the Court suggests that the parties save themselves the time or effort involved in what would likely be a futile effort. By Judge R. Brooke Jackson on 5/11/17. Text Only Entry (rbjsec. ) (Entered: 05/11/2017)
148 MINUTE ORDER re: 144 Order on Motion for Referral by Magistrate Judge Kristen L. Mix on 5/15/17. (Attachments: # 1 Attachment 1) (lgale, ) (Entered: 05/15/2017)
149 Unopposed MOTION to Withdraw Appearances of Former Student Attorneys by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 05/18/2017)
150 ORDER granting 149 Unopposed MOTION to Withdraw Appearances of Former Student Attorneys. By Judge R. Brooke Jackson on 5/18/17. Text Only Entry (rbjsec.) (Entered: 05/18/2017)
151 Joint MOTION for Extension of Time to Extend Time to Submit Confidential Settlement Statements by Defendant Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Padden, Amy) (Entered: 05/27/2017)
152 MEMORANDUM regarding 151 Joint MOTION for Extension of Time to Extend Time to Submit Confidential Settlement Statements filed by Federal Bureau of Prisons. Motion 151 referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 5/30/17. Text Only Entry (rbjsec. ) (Entered: 05/30/2017)
153 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 6/9/17. Joint Motion to Extend Deadline to Submit Confidential Settlement Statements 151 is GRANTED. (lgale, ) (Entered: 06/09/2017)
154 Unopposed MOTION to Withdraw as Attorney by Defendant Federal Bureau of Prisons. (Padden, Amy) (Entered: 07/22/2017)
155 ORDER granting 154 Unopposed MOTION to Withdraw. Attorney Amy L. Padden is withdrawn. By Judge R. Brooke Jackson on 7/24/17. Text Only Entry (rbjsec. ) (Entered: 07/24/2017)
156 NOTICE of Entry of Appearance by Lauren Marie Dickey on behalf of Federal Bureau of PrisonsAttorney Lauren Marie Dickey added to party Federal Bureau of Prisons(pty:dft) (Dickey, Lauren) (Entered: 07/27/2017)
157 Unopposed MOTION to Withdraw as Attorney by Plaintiff Ahmad Ajaj. (Webb, Lindsey) (Entered: 08/01/2017)
158 Unopposed MOTION for Protective Order by Defendant Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Dickey, Lauren) (Entered: 08/03/2017)
159 ORDER granting 157 Motion to Withdraw as Attorney. Attorney Lindsey De Soto Webb is withdrawn. By Judge R. Brooke Jackson on 8/7/17. Text Only Entry (rbjsec. ) (Entered: 08/07/2017)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 19 of 33

08/11/2017 08/15/2017 08/15/2017
08/15/2017 09/25/2017 09/25/2017 09/25/2017 09/25/2017
09/26/2017 10/04/2017 10/04/2017 10/05/2017
10/26/2017
11/07/2017

160 Joint MOTION to Amend/Correct/Modify 124 Scheduling Order by Extending Certain Discovery Deadlines by Defendant Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 08/11/2017)
161 ORDER granting 158 Unopposed Motion for Protective Order. By Judge R. Brooke Jackson on 8/15/17. Text Only Entry (rbjsec. ) (Entered: 08/15/2017)
162 ORDER granting 160 Joint MOTION to Amend/Correct/Modify 124 Scheduling Order by Extending Certain Discovery Deadlines. The following deadlines are extended as follows: Expert Disclosures to September 18, 2017; Rebuttal Expert Disclosures to October 18, 2017; Written Discovery Cut−Off to October 1, 2017; and Discovery Cut−Off November 1, 2017. By Judge R. Brooke Jackson on 8/15/17. (rbjsec. ) (Entered: 08/15/2017)
163 PROTECTIVE ORDER by Judge R. Brooke Jackson on 8/15/17. (jdyne, ) (Entered: 08/15/2017)
164 Unopposed MOTION for Leave to Appear as Student Attorneys by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only) (Emily Horn), # 2 Proposed Order (PDF Only) (Joshua Mitson), # 3 Proposed Order (PDF Only) (Zachary Wechsler))(Godfrey, Nicole) (Entered: 09/25/2017)
165 ORDER granting 164 Unopposed MOTION for Leave to Appear as Student Attorneys. By Judge R. Brooke Jackson on 9/25/17. Text Only Entry (rbjsec. ) (Entered: 09/25/2017)
166 Unopposed MOTION for Order to Permit Deposition of Plaintiff by Defendant Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Dickey, Lauren) (Entered: 09/25/2017)
167 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 166 Unopposed MOTION for Order to Permit Deposition of Plaintiff filed by attorneySusan Begesse Prose.The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (dkals, ) (Entered: 09/25/2017)
168 ORDER granting 166 Unopposed Motion for Order Permitting Deposition of Plaintiff by Judge R. Brooke Jackson on 9/26/17. (jdyne, ) (Entered: 09/26/2017)
169 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Telephone Discovery Conference held on 10/4/2017. Court Reporter: Sarah Mitchell. (jdyne, ) (Entered: 10/04/2017)
170 AMENDED COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Amended re 169 Discovery Hearing to correct court reporter, as indicated. Court Reporter: Sarah Mitchell. (jdyne, ) (Entered: 10/04/2017)
171 MOTION for Protective Order to Protect Plaintiff from Further Retaliation by Defendant Federal Bureau of Prisons by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Transfer Memo), # 2 Exhibit 2 (Ajaj Depo Notice), # 3 Exhibit 3 (Ajaj Decl 1), # 4 Exhibit 4 (Ajaj Decl 2), # 5 Exhibit 5 (A&O Handbook), # 6 Exhibit 6 (Step Down Institution Supplement))(Godfrey, Nicole) (Entered: 10/05/2017)
172 RESPONSE to 171 MOTION for Protective Order to Protect Plaintiff from Further Retaliation by Defendant Federal Bureau of Prisons filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Dickey, Lauren) (Entered: 10/26/2017)
173 Unopposed MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Protective Order to Protect Plaintiff from Further Retaliation by Defendant Federal Bureau of Prisons by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit A (Shiffler Dec), # 2 Exhibit B (Kennedy−Munoz Emails), # 3 Exhibit C (Ajaj Envelope − DU Civil Rights Clinic), # 4 Exhibit D (Ajaj Envelope − US District Court), # 5 Exhibit E (Godfrey−Ajaj Emails), # 6 Exhibit F (Evidence Preservation Letter))(Godfrey, Nicole) (Entered: 11/07/2017)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 20 of 33

11/08/2017 11/10/2017 11/14/2017 11/16/2017 11/20/2017 11/21/2017 11/21/2017
11/21/2017 11/27/2017 11/27/2017

174 ORDER granting 173 Unopposed MOTION for Extension of Time to File Response/Reply as to 171 MOTION for Protective Order to Protect Plaintiff from Further Retaliation. By Judge R. Brooke Jackson on 11/8/17/. Text Only Entry (rbjsec. ) (Entered: 11/08/2017)
175 MOTION for Writ of Habeas Corpus ad testificandum by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Provencio v. Clark Order), # 2 Exhibit 2 (Jordan v. Pugh Order 1), # 3 Exhibit 3 (Jordan v. Pugh Order 2), # 4 Exhibit 4 (Anderson Writ), # 5 Exhibit 5 (2010 Incident Report), # 6 Exhibit 6 (General Population and Step Down IS), # 7 Exhibit 7 (B/B Unit Transfer Memo))(Godfrey, Nicole) (Entered: 11/10/2017)
176 NOTICE of Depositions Taken Out of Time by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit 1 (Conferral Email))(Godfrey, Nicole) (Entered: 11/14/2017)
177 REPLY to Response to 171 MOTION for Protective Order to Protect Plaintiff from Further Retaliation by Defendant Federal Bureau of Prisons filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1−Email Corr, # 2 Exhibit 2−Odeh Decl., # 3 Exhibit 3−Ajaj ltr to Cook, # 4 Exhibit 4−Email Corr (med), # 5 Exhibit 5−MDS, # 6 Exhibit 6−Copout re Rx)(Rovner, Laura) (Entered: 11/16/2017)
178 Partial MOTION for Summary Judgment by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit Ex. 1− Chapman Decl., # 2 Exhibit Atts. 1−7, # 3 Exhibit Atts. 8−10, # 4 Exhibit Atts. 11−15, # 5 Exhibit Atts. 16−23, # 6 Exhibit Atts. 24−30, # 7 Exhibit Atts. 31−35, # 8 Exhibit Ex. 2− Discovery Resp. Excerpt)(Dickey, Lauren) (Entered: 11/20/2017)
179 Unopposed MOTION for Leave to Appear as Student Attorney by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Law Student Appearance Form − S. Blumberg))(Godfrey, Nicole) (Entered: 11/21/2017)
180 STRICKEN − MOTION for Sanctions Under Rule 37 to Exclude Untimely Disclosed Documents from Evidence at Trial and Request for Expedited Briefing by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Filed Contemporaneously Under Restriction), # 2 Exhibit 2 (Filed Contemporaneously Under Restriction), # 3 Exhibit 3 (Transfer Documents), # 4 Exhibit 4 (Single FOIA Exempt Page), # 5 Exhibit 5 (Pl's First Set of ROGs and Second Set of RFPs), # 6 Exhibit 6 (Def's Resp. to First Set of ROGs and Second Set of RFPs), # 7 Exhibit 7 (Pl's 3d Set of RFPs), # 8 Exhibit 8 (Def's Resp. to 3d Set of RFPs), # 9 Exhibit 9 (Pl's Fifth Set of RFP), # 10 Exhibit 10 (April 2017 Discovery Conferral), # 11 Exhibit 11 (May 10 Discovery Deadline Conferral), # 12 Exhibit 12 (July Conferral Emails to Padden and Prose), # 13 Exhibit 13 (July Conferral Emails to Cook and Dickey), # 14 Exhibit 14 (Aug 14 2017 Conferral Letter), # 15 Exhibit 15 (Prose August Conferral Email), # 16 Exhibit 16 (Def's Initial Disclosures), # 17 Exhibit 17 (Conferral Re Inmate Profile), # 18 Exhibit 18 (2nd Supp Disclosures Email), # 19 Exhibit 19 (Oct 2 Conferral Email), # 20 Exhibit 20 (Oct 11 Doc Production), # 21 Exhibit 21 (Oct 13 Doc Production), # 22 Exhibit 22 (Oct 19 Doc Production Update), # 23 Exhibit 23 (Final Doc Production Email), # 24 Exhibit 24 (Oliver Deposition), # 25 Exhibit 25 (Nov 3 Email with Group Prayer Docs), # 26 Exhibit 26 (Conferral on Instant Motion))(Godfrey, Nicole) Modified on 11/28/2017 to strike pursuant to 184 Order (dkals, ). (Entered: 11/21/2017)
181 RESTRICTED DOCUMENT − Level 1: Exhibit by Plaintiff Ahmad Ajaj.. (Attachments: # 1 Exhibit 2 (Inmate Profile))(Godfrey, Nicole) Modified on 11/22/2017 to add text (dkals, ). (Entered: 11/21/2017)
182 ORDER granting 179 Unopposed MOTION for Leave to Appear as Student Attorney. By Judge R. Brooke Jackson on 11/27/17. Text Only Entry (rbjsec. ) (Entered: 11/27/2017)
183 ORDER denying 171 MOTION for Protective Order to Protect Plaintiff from Further Retaliation by Defendant Federal Bureau of Prisons. After review of the motion and response (the reply is stricken for non−compliance with D.C.COLO.LCivR 10.1(d)), the motion is denied. The defendant must properly exhaust administrative remedies concerning any acts of alleged retaliation. By Judge R. Brooke Jackson on 11/27/17. Text Only Entry (rbjsec. ) (Entered: 11/27/2017)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 21 of 33

11/27/2017
11/27/2017 11/29/2017 12/01/2017 12/04/2017
12/04/2017 12/05/2017 12/05/2017 12/05/2017
12/06/2017

184 ORDER striking 180 MOTION for Sanctions Under Rule 37 to Exclude Untimely Disclosed Documents from Evidence at Trial and Request for Expedited Briefing. The Court sua sponte strikes this motion for non−compliance with D.C.COLO.LCivR 10.1(d). The Court directs counsel to confer again and to attempt to reach agreement, but if agreement is not reached, to contact Chambers and set a telephone hearing rather than filing a written motion. By Judge R. Brooke Jackson on 11/27/17. Text Only Entry (rbjsec. ) (Entered: 11/27/2017)
185 Unopposed MOTION for Leave to Restrict by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 11/27/2017)
186 ORDER granting 185 Motion for Leave to Restrict. By Judge R. Brooke Jackson on 11/29/17. Text Only Entry (rbjsec.) (Entered: 11/29/2017)
187 RESPONSE to 175 MOTION for Writ of Habeas Corpus ad testificandum filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1, Hudgins Declaration, # 2 Exhibit 2, Brackett Declaration, # 3 Exhibit 3, Synsvoll Declaration)(Prose, Susan) (Entered: 12/01/2017)
188 TRANSCRIPT of Scheduling Conference held on December 7, 2016 before Judge R. Brooke Jackson. Pages: 1−20. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (jcopp, ) (Entered: 12/04/2017)
189 Joint MOTION to Vacate 122 Order, Setting Trial and Trial Preparation Conference and Reopen Discovery For a Limited Purpose by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Rovner, Laura) (Entered: 12/04/2017)
190 ORDER granting 189 Joint MOTION to Vacate 122 Order, Setting Trial and Trial Preparation Conference and Reopen Discovery For a Limited Purpose. The Court has one week trial blocks available 8/27/18 or 11/26/18, or a two week trial block on 3/11/19. Please confer and then notify the Court of which date the parties select and the court will reset a coordinating trial preparation conference. By Judge R. Brooke Jackson on 12/5/17. Text Only Entry (rbjsec.) (Entered: 12/05/2017)
191 ORDER denying 175 Motion for Writ of Habeas Corpus ad Testificandum. In light of security issues and the availability for the plaintiff to observe and participate by video, the motion is denied. By Judge R. Brooke Jackson on 12/5/17. Text Only Entry (rbjsec. ) Modified on 12/5/2017 to correct party role (dkals, ). (Entered: 12/05/2017)
192 ORDER denying 178 Partial MOTION for Summary Judgment. by Judge R. Brooke Jackson on 12/5/17. Denied without prejudice. Since the parties appear to be largely starting over, and since there appears to be the possibility that changes within the BOP might moot the case, the Court elects not to address motions at this time. Dispositive motions deadline reset to three months before whatever trial date they choose. Text Only Entry (rbjsec. ) Modified on 12/6/2017 to correct docket text (jdyne, ). (Entered: 12/05/2017)
193 MINUTE ORDER: The Jury Trial has been RESET for August 27, 2018 at 9:00 a.m. in Courtroom A 902 before Judge R. Brooke Jackson for five days. The Trial Preparation Conference is reset for August 9, 2018 at 1:30 p.m. in Courtroom A 902 before Judge R. Brooke Jackson. The parties are directed to confer prior to the Trial Preparation Conference in order to reach agreement on as many, if not all, of the proposed jury instructions. The proposed stipulated and disputed jury instructions should be emailed to Jackson_chambers@cod.uscourts.gov at least one week in advance of the Trial Preparation Conference. By Judge R. Brooke Jackson on 12/6/17. Text Only Entry (rbjsec.) (Entered: 12/06/2017)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 22 of 33

12/19/2017 12/20/2017 01/08/2018 01/09/2018 01/11/2018 01/29/2018 01/30/2018 02/06/2018 02/07/2018 02/09/2018 02/27/2018 02/28/2018 03/02/2018
03/06/2018 03/20/2018 04/09/2018

194 Unopposed MOTION for Leave to Appear as Student Attorneys by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only) (Law Student Appearance Form − R. Kennedy), # 2 Proposed Order (PDF Only) (Law Student Appearance Form − E. Othmer))(Godfrey, Nicole) (Entered: 12/19/2017)
195 ORDER granting 194 Unopposed MOTION for Leave to Appear as Student Attorneys. By Judge R. Brooke Jackson on 12/20/17. Text Only Entry (rbjsec. ) (Entered: 12/20/2017)
196 Unopposed MOTION for Leave to Appear as Student Attorney by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only) Law Student Appearance Form (M. Bishop))(Godfrey, Nicole) (Entered: 01/08/2018)
197 ORDER granting 196 Unopposed MOTION for Leave to Appear as Student Attorney. By Judge R. Brooke Jackson on 1/9/18. Text Only Entry (rbjsec. ) (Entered: 01/09/2018)
198 STIPULATION for 5−day Extension to Respond to Discovery by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 01/11/2018)
199 STATUS REPORT by Defendant Federal Bureau of Prisons. (Prose, Susan) (Entered: 01/29/2018)
200 STATUS REPORT (Plaintiff's) by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (2018.01.29 Kennedy−Jackson Chambers email))(Godfrey, Nicole) (Entered: 01/30/2018)
201 MOTION for Leave to to File Supplemental Complaint by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Proposed Supplemental Complaint))(Godfrey, Nicole) (Entered: 02/06/2018)
202 MINUTE ORDER: An in−person Status Conference is set for 2/9/2018 at 1:30 PM in Courtroom A 902 before Judge R. Brooke Jackson. By Judge R. Brooke Jackson on 2/7/18. Text Only Entry (rbjsec. ) (Entered: 02/07/2018)
203 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Status Conference held on 2/9/2018. Status Report due by 4/9/2018. Court Reporter: Sarah Mitchell. (jdyne, ) (Entered: 02/09/2018)
204 Unopposed MOTION for Extension of Time to File Response/Reply as to 201 MOTION for Leave to to File Supplemental Complaint by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 02/27/2018)
205 ORDER granting 204 Unopposed MOTION for Extension of Time to File Response/Reply as to 201 MOTION for Leave to File Supplemental Complaint. By Judge R. Brooke Jackson on 2/28/18. Text Only Entry (rbjsec. ) (Entered: 02/28/2018)
206 TRANSCRIPT of Status Hearing held on February 9, 2018 before Judge Jackson. Pages: 1−37. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 03/02/2018)
207 RESPONSE to 201 MOTION for Leave to to File Supplemental Complaint filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit)(Dickey, Lauren) (Entered: 03/06/2018)
208 REPLY to Response to 201 MOTION for Leave to to File Supplemental Complaint filed by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 03/20/2018)
209 Joint STATUS REPORT by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 04/09/2018)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 23 of 33

04/10/2018
04/18/2018 04/18/2018 04/20/2018 04/30/2018 05/01/2018 05/14/2018 05/14/2018 05/29/2018 05/29/2018

210 ORDER denying 201 MOTION for Leave to File Supplemental Complaint. Denied without prejudice. Despite plaintiff's contention that the Proposed Supplemental Complaint only updates the complaint to take into account his recent transfer, the Court interprets it as raising new issues dating back to 2015 that were not previously pled. This is a very old case, and after the Court's ruling on defendant's motion to dismiss the issues remaining focused on the BOP's alleged (1) failure to provide medications at certain times during Sunnah fasts; (2) lack of access to a Halal diet with Halal meat; and (3) a lack of meaningful access to an imam on a weekly basis. See ECF No 111 at 5, 7−9. It is not clear to the Court how the transfer of the plaintiff to a different BOP facility has changed the thrust of those three claims. If he is not being provided the those things in the new facility, then it would seem that the complaint is not moot. If ADX's revised pill line procedures that caused plaintiff's complaint about administration of medications during Ramadan to be moot, see id., no longer apply in the new facility, then that claim is no longer moot. If he is being provided all those things at the new facility, then his claims are moot. Thus, I agree that the defendant cannot automatically moot the complaint by transferring the plaintiff to a different facility and arguing that the claims focused solely on the ADX. Of course they did, because that's where he was, but this Court's focus in on the substance of what he claims to have been denied and whether the denial violated his constitutional rights. I do not understand how the transfer affects this Court's jurisdiction in any way. It appears that neither party is fully aware, as yet, whether and to what degree those claims apply to his situation in the new facility. It might be appropriate to supplement or amend the complaint to adjust to the new facility so long as the focus remains specifically on the three items that survived the motion to dismiss (or four if the Ramadan issue is no longer moot). But the Proposed Supplemental Complaint asserts new facts and issues dating back to 2015, particularly concerning the legitimacy of transfers of the plaintiff inside and outside the ADX facility. If the plaintiff wishes to challenge his transfers within or without the ADX facility(despite his apparent request for a transfer), or raise other issues concerning his constitutional rights, then he will need to pursue those new claims in a different lawsuit. By Judge R. Brooke Jackson on 4/10/18. Text Only Entry (rbjsec. ) (Entered: 04/10/2018)
211 STIPULATION to Dismiss First Amendment Claim Against Defendant BOP by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 04/18/2018)
212 Unopposed MOTION to Clarify re 210 Order on Motion for Leave,,,,,,,,,, by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 04/18/2018)
213 ORDER granting 212 Unopposed MOTION to Clarify re 210 Order. Granted. The issues remaining are as summarized in the last paragraph of the motion, ECF No. 212 at 2−3. By Judge R. Brooke Jackson on 4/20/18. Text Only Entry (rbjsec, ). (Entered: 04/20/2018)
214 Unopposed MOTION to Withdraw Appearances of Student Attorneys Stephanie Blumberg, Joshua Mitson, and Zachary Wechsler by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 04/30/2018)
215 ORDER granting 214 Unopposed MOTION to Withdraw Appearances of Student Attorneys Stephanie Blumberg, Joshua Mitson, and Zachary Wechsler. By Judge R. Brooke Jackson on 5/1/18. Text Only Entry (rbjsec.) (Entered: 05/01/2018)
216 Unopposed MOTION to Withdraw Appearance of Former Student Attorney Emily Horn by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 05/14/2018)
217 ORDER granting 216 Motion to Withdraw. Student Attorney Emily Horn is withdrawn. By Judge R. Brooke Jackson on 5/14/18. Text Only Entry (rbjsec. ) (Entered: 05/14/2018)
218 Unopposed MOTION for Extension of Time to File Dispositive Motion by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 05/29/2018)
219 Partial MOTION for Summary Judgment by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Ajaj Dec), # 2 Exhibit 2 (Ward Dec), # 3 Exhibit 3 (Amonette Exp. Rpt.), # 4 Exhibit 4 (Amonette Dep. − Saleh v. BOP), # 5 Exhibit 5 (Amonette Dep.), # 6 Exhibit 6 (Ajaj Dep.), # 7 Exhibit 7 (THX 5360.09), # 8 Exhibit 8 (Chaplain Facchinello Cop Out), # 9 Exhibit 9 (Castle 30(b)(6) Dep), # 10 Exhibit 10 (Def's Supp. Resp. to Discovery), # 11 Exhibit 11 (Shnewer Dec), # 12 Exhibit 12 (joint

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 24 of 33

05/29/2018 05/30/2018 05/30/2018
06/08/2018
06/09/2018 06/14/2018 06/14/2018 06/15/2018 06/20/2018

Status Rpt), # 13 Exhibit 13 (Def's Resp. to Fifth Set of ROG), # 14 Exhibit 14 (Collins 30(b)(6) Dep), # 15 Exhibit 15 (Beai 30(b)(6) Dep), # 16 Exhibit 16 (Program Statement 5360.09), # 17 Exhibit 17 (Pl's Resp. to First Set of Discovery), # 18 Exhibit 18 (Pl's Resp. to Second Set of Discovery), # 19 Exhibit 19 (Professional Chaplaincy Training), # 20 Exhibit 20 (Ministry of BOP Chaplains Technical Reference), # 21 Exhibit 21 (Holliday Dep), # 22 Exhibit 22 (Boz Email), # 23 Exhibit 23 (Henderson Dep), # 24 Exhibit 24 (Saleh Settlement))(Godfrey, Nicole) (Entered: 05/29/2018)
220 UNRESTRICTED DOCUMENT − Level 1: Exhibit by Plaintiff Ahmad Ajaj.. (Godfrey, Nicole) Modified on 5/30/2018 to add text (dkals, ). Modified on 6/27/2018 to unrestrict pursuant to D.C.COLO.LCivR 7.2(e) (dkals, ). (Entered: 05/29/2018)
221 ORDER granting 218 Unopposed MOTION for Extension of Time to File Dispositive Motion. By Judge R. Brooke Jackson on 5/30/18. Text Only Entry (rbjsec. ) (Entered: 05/30/2018)
222 MOTION for Summary Judgment for Failure to Exhaust, MOTION to Dismiss for Lack of Jurisdiction by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1 − Chapman declaration, part 1, # 2 Exhibit 1, Chapman declaration − part 2, # 3 Exhibit 2 − Sutter declaration, # 4 Exhibit 3 − Rule 26 disclosures)(Prose, Susan) (Entered: 05/30/2018)
223 MOTION for Reconsideration re 191 Order on Motion for Writ of Habeas Corpus ad Testificandum, by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Roal Depo.), # 2 Exhibit 2 (LCP OM), # 3 Exhibit 3 (Fall Dec.), # 4 Exhibit 4 (Jordan Dec.), # 5 Exhibit 5 (Labonte Dec.), # 6 Exhibit 6 (Warren Dec.), # 7 Exhibit 7 (Randolph Dec.), # 8 Exhibit 8 (Lutz Dec.), # 9 Exhibit 9 (Lane Dec.))(Godfrey, Nicole) (Entered: 06/08/2018)
224 NOTICE re 220 Restricted Document − Level 1 −Withdrawal of Confidential Designation of Exhibit 19 to Plaintiff's Motion for Partial Summary Judgment by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit 1 (Conferral on Confidentiality Designation))(Godfrey, Nicole) (Entered: 06/09/2018)
225 MOTION for Extension of Time to Respond to Plaintiff's Motion for Partial Summary Judgment by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 06/14/2018)
226 RESPONSE to 225 MOTION for Extension of Time to Respond to Plaintiff's Motion for Partial Summary Judgment filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 − 2002 Req. for Imam, # 2 Exhibit 2 − Ad Rem Imam Call/Video, # 3 Exhibit 3 − Status Conf. Hrg. Tr.)(Rovner, Laura) (Entered: 06/14/2018)
227 ORDER granting 225 Motion for Extension of Time to File. Response is due on or before 7/3/18. by Judge R. Brooke Jackson on 6/15/18. Text Only Entry (jdyne, ) (Entered: 06/15/2018)
228 RESPONSE to 222 MOTION for Summary Judgment for Failure to Exhaust MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss for Lack of Venue filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Amended Compl.), # 2 Exhibit 2 (Pl's Resp. to BOP First Discovery Req), # 3 Exhibit 3 (Fasting ARs), # 4 Exhibit 4 (Group Prayer ARs), # 5 Exhibit 5 (Imam ARs), # 6 Exhibit 6 (Halal ARs), # 7 Exhibit 7 (Status Conf. Hr'g Trans.), # 8 Exhibit 8 (BOP Health Svcs Admin), # 9 Exhibit 9 (Ajaj Decl), # 10 Exhibit 10 (THX Pill Line Procedures Notice), # 11 Exhibit 11 (THX AO Handbook), # 12 Exhibit 12 (BEMR), # 13 Exhibit 13 (BOP's Supp. Resp. to Discovery), # 14 Exhibit 14 (Chaplaincy Svcs Guide), # 15 Exhibit 15 (Depo. of BOP 30(b)(6) Designee Castle), # 16 Exhibit 16 (Religious Beliefs and Practices), # 17 Exhibit 17 (Institutional Supplement THX Religious Beliefs and Practices), # 18 Exhibit 18 (Defendant BOP's discovery responses), # 19 Exhibit 19 (Defendant BOP's Supplemental Responses to P's 1st RFPs), # 20 Exhibit 20 (Joint Status Rpt), # 21 Exhibit 21 (Shnewer Declaration), # 22 Exhibit 22 (Depo. of BOP 30(b)(6) Designee Collins), # 23 Exhibit 23 (FCC TH Inmate Bulletin), # 24 Exhibit 24 (Religious Services Program Schedule), # 25 Exhibit 25 (LCP Program Statement), # 26 Exhibit 26 (Bonham Classroom 5 Memo), # 27 Exhibit 27 (Institution Supplement Step−Down Program), # 28 Exhibit 30 (US District Courts − National Caseload Profile), # 29 Exhibit 31 (Depo. of Ahmad Ajaj Part III), # 30 Exhibit 32 (Food Service Manual Program Statement), # 31 Exhibit 33 (Proposed Suppl. Complaint and Supporting

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 25 of 33

06/28/2018 06/29/2018 07/03/2018 07/03/2018 07/05/2018
07/10/2018 07/12/2018 07/12/2018 07/12/2018 07/12/2018
07/12/2018 07/13/2018 07/16/2018 07/17/2018

Evidence), # 32 Exhibit 34 (High Security Adult Alternative Housing Unit))(Godfrey, Nicole) (Entered: 06/20/2018)
229 NOTICE re 223 MOTION for Reconsideration re 191 Order on Motion for Writ of Habeas Corpus ad Testificandum, Supplemental Evidence in Support of by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit 1 (Fox−Gomez Email))(Godfrey, Nicole) (Entered: 06/28/2018)
230 RESPONSE to 223 MOTION for Reconsideration re 191 Order on Motion for Writ of Habeas Corpus ad Testificandum, filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1, Hudgins Declaration, # 2 Exhibit 2, Brackett Declaration, # 3 Exhibit 3, Schalburg Declaration)(Prose, Susan) (Entered: 06/29/2018)
231 MOTION for Extension of Time to File Response/Reply as to 222 MOTION for Summary Judgment for Failure to Exhaust MOTION to Dismiss for Lack of Jurisdiction by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/03/2018)
232 RESPONSE to 219 Partial MOTION for Summary Judgment filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1, Castle Declaration, # 2 Exhibit 2, Rule 30(b)(6) Objections, # 3 Exhibit 3, Cheeks Declaration)(Prose, Susan) (Entered: 07/03/2018)
233 ORDER granting 231 MOTION for Extension of Time to File Response/Reply as to 222 MOTION for Summary Judgment for Failure to Exhaust MOTION to Dismiss for Lack of Jurisdiction. The Court is not impressed with the inability of the United States Attorney's Office's inability to meet deadlines. However, the Court likewise does not find the assertion that the plaintiff will be prejudiced by a one week extension to be credible. By Judge R. Brooke Jackson on 7/5/18. Text Only Entry (rbjsec. ) (Entered: 07/05/2018)
234 REPLY to Response to 223 MOTION for Reconsideration re 191 Order on Motion for Writ of Habeas Corpus ad Testificandum, filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Lambert−Castro Email Re Transfer), # 2 Exhibit 2 (October 2016 Progress Report))(Godfrey, Nicole) (Entered: 07/10/2018)
235 Unopposed MOTION for Leave to File Excess Pages in Plaintiff's Reply in Support of his Motion for Partial Summary Judgment by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 07/12/2018)
236 ORDER granting 235 Unopposed MOTION for Leave to File Excess Pages in Plaintiff's Reply in Support of his Motion for Partial Summary Judgment. By Judge R. Brooke Jackson on 7/12/18. Text Only Entry (rbjsec. ) (Entered: 07/12/2018)
237 Unopposed MOTION for Leave to File Excess Pages by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/12/2018)
238 MOTION to Exclude Expert Testimony Pursuant to FRE 702 by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit Amonette Expert Report, # 2 Exhibit Amonette Rebuttal Expert Report, # 3 Exhibit Amonette Deposition, # 4 Exhibit Amonette Resume, # 5 Exhibit Maqbul Declaration, # 6 Exhibit IFANCA 5 Star Guide)(Rovner, Laura) (Entered: 07/12/2018)
239 REPLY to Response to 222 MOTION for Summary Judgment for Failure to Exhaust MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/12/2018)
240 ORDER granting 237 Unopposed Motion for Leave to File Excess Pages, by Judge R. Brooke Jackson on 7/13/18. Text Only Entry rbjsec ) (Entered: 07/13/2018)
241 MOTION in Limine by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 − Ajaj Deposition)(Jefferis, Danielle) (Entered: 07/16/2018)
242 REPLY to Response to 219 Partial MOTION for Summary Judgment filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Ajaj Fact Table), # 2 Exhibit 2 (BOP Fact Table), # 3 Exhibit 3 (BOP Expert Disclosure), # 4 Exhibit 4 (Amended Expert Disclosure), # 5 Exhibit 5 (Oliver Deposition), # 6 Exhibit 6 (LCP Operations Memo), # 7 Exhibit 7 (FCC Florence Applicants), # 8 Exhibit 8 (Saulsberry Deposition), # 9

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 26 of 33

08/01/2018 08/02/2018 08/05/2018 08/06/2018 08/06/2018 08/06/2018
08/07/2018 08/07/2018 08/07/2018 08/09/2018 08/09/2018 08/09/2018 08/13/2018 08/13/2018 08/14/2018
08/15/2018

Exhibit 9 (Hankerson Declaration), # 10 Exhibit 10 (BOP Chaplains' Employment Responsibilities and Endorsements))(Godfrey, Nicole) (Entered: 07/17/2018)
243 ORDER denying 219 Motion for Summary Judgment; granting in part and denying in part 222 Motion for Summary Judgment; denying 223 Motion for Reconsideration ; denying 238 Motion to Exclude; denying 241 Motion in Limine by Judge R. Brooke Jackson on 8/1/18. (jdyne, ) (Entered: 08/01/2018)
244 RESPONSE to 238 MOTION to Exclude Expert Testimony Pursuant to FRE 702 filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit Deposition Testimony of Imam Amonette)(Dickey, Lauren) (Entered: 08/02/2018)
245 NOTICE of Special Issues for Trial Preparation Conference by Plaintiff Ahmad Ajaj (Rovner, Laura) (Entered: 08/05/2018)
246 MOTION for Leave to Attend Trial Preparation Conference Via Contemporaneous Video Transmission (Partially Unopposed) by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/06/2018)
247 MOTION for Leave to Present Testimony of Prisoner Witnesses Via VTC by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 08/06/2018)
248 ORDER granting 246 MOTION for Leave to Attend Trial Preparation Conference Via Contemporaneous Video Transmission. The plaintiff may appear via VTC for the trial preparation conference set this Thursday, 8/9/18 at 1:30 p.m. The Court requests that the parties coordinate with the Court Operations Supervisor at (303) 335−2180 to arrange the details. By Judge R. Brooke Jackson on 8/6/18. Text Only Entry (rbjsec. ) (Entered: 08/06/2018)
249 Unopposed MOTION for Leave to Permit Plaintiff to Attend and Testify at Trial Via Contemporaneous Video Transmission by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/07/2018)
250 MOTION for Reconsideration of Order Dismissing Group Prayer Issue by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/07/2018)
251 MOTION for Reconsideration re 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/07/2018)
252 NOTICE Regarding Issues to be Raised at Trial Preparation Conference by Defendant Federal Bureau of Prisons (Dickey, Lauren) (Entered: 08/09/2018)
253 RESPONSE to 250 MOTION for Reconsideration of Order Dismissing Group Prayer Issue filed by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/09/2018)
254 MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Trial Preparation Conference held on 8/9/2018. Court Reporter: Sarah Mitchell. (dhans, ) (Entered: 08/09/2018)
255 RESPONSE to 251 MOTION for Reconsideration re 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, filed by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 08/13/2018)
256 REPLY to Response to 250 MOTION for Reconsideration of Order Dismissing Group Prayer Issue filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 − Ajaj Decl.)(Rovner, Laura) (Entered: 08/13/2018)
257 REPLY to Response to 251 MOTION for Reconsideration re 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, filed by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/14/2018)
258 TRANSCRIPT of Trial Preparation Conference held on August 9, 2018 before Judge Jackson. Pages: 1−41.

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 27 of 33

08/15/2018 08/16/2018 08/17/2018 08/17/2018 08/20/2018 08/20/2018 08/20/2018
08/20/2018 08/20/2018
08/20/2018 08/21/2018 08/22/2018

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 08/15/2018)
259 MOTION for Leave to file Limited Surreply to 256 Reply to Response to Motion by Defendant Federal Bureau of Prisons. (Attachments: # 1 Proposed Document Proposed Surreply + Exhibits)(Dickey, Lauren) (Entered: 08/15/2018)
260 REPLY to Response to 238 MOTION to Exclude Expert Testimony Pursuant to FRE 702 filed by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/16/2018)
261 Emergency MOTION to Continue Trial and Request for Telephonic Hearing by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/17/2018)
262 RESPONSE to 261 Emergency MOTION to Continue Trial and Request for Telephonic Hearing filed by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/17/2018)
263 REPLY to Response to 261 Emergency MOTION to Continue Trial and Request for Telephonic Hearing filed by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/20/2018)
264 ORDER denying 250 MOTION for Reconsideration of Order Dismissing Group Prayer Issue. By Judge R. Brooke Jackson on 8/20/18. Text Only Entry (rbjsec. ) (Entered: 08/20/2018)
265 ORDER granting 251 MOTION for Reconsideration re 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine. As indicated during the trial preparation conference, the Court on reconsideration found and still finds that the medication issue was not raised, either independently or as part of the issue concerning meals. By Judge R. Brooke Jackson on 8/20/18. Text Only Entry (rbjsec.) (Entered: 08/20/2018)
266 ORDER denying 259 MOTION for Leave to file Limited Surreply to 256 Reply to Response to Motion. By Judge R. Brooke Jackson on 8/20/18. Text Only Entry (rbjsec. ) (Entered: 08/20/2018)
267 ORDER denying 261 Emergency MOTION to Continue Trial and Request for Telephonic Hearing. The Court ordinarily grants requests for a continuance based upon illness of counsel. This is an exception. First, continuing the trial to accommodate the defendant would also have the effect of denying the plaintiff the opportunity to have his lead counsel try the case. Second, defendant has other experienced counsel on its trial team. Third, to the extent that an additional trial lawyer is needed on the defense side, the Court believes that there are many other lawyers in the U.S. Attorney's Office who would be interested in "dropping everything" and getting trial experience. Fourth, the remaining issues in the case are not complex. Fifth, for a variety of reasons, this case is more than three years old, and both sides need closure on it. By Judge R. Brooke Jackson on 8/20/18. Text Only Entry (rbjsec. ) (Entered: 08/20/2018)
268 Unopposed MOTION for Leave to Appear as Student Attorney (A. Parrott) by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Law Student Appearance Form − A. Parrott))(Godfrey, Nicole) (Entered: 08/20/2018)
269 ORDER granting 268 Unopposed MOTION for Leave to Appear as Student Attorney (A. Parrott). By Judge R. Brooke Jackson on 8/21/18. Text Only Entry (rbjsec. ) (Entered: 08/21/2018)
270 NOTICE of Entry of Appearance by Marcy Elizabeth Cook on behalf of Federal Bureau of PrisonsAttorney Marcy Elizabeth Cook added to party Federal Bureau of

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08/22/2018 08/24/2018
08/24/2018 08/24/2018 08/24/2018 08/24/2018 08/24/2018 08/24/2018 08/26/2018
08/26/2018 08/26/2018 08/26/2018 08/27/2018 08/27/2018
08/27/2018
08/28/2018 08/28/2018

Prisons(pty:dft) (Cook, Marcy) (Entered: 08/22/2018)
271 NOTICE of Entry of Appearance by Kevin Thomas Traskos on behalf of Federal Bureau of PrisonsAttorney Kevin Thomas Traskos added to party Federal Bureau of Prisons(pty:dft) (Traskos, Kevin) (Entered: 08/22/2018)
272 TRIAL BRIEF by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Holt Injunction), # 2 Exhibit 2 (Def's Expert Witness Disclosures), # 3 Exhibit 3 (Def's Rebuttal Expert Dislosures), # 4 Exhibit 4 (John Oliver Depo Excerpts), # 5 Exhibit 5 (2018.05.29 Prose−Othmer Email), # 6 Exhibit 6 (Amended Trate Non−Retained Expert Disclosure), # 7 Exhibit 7 (Justification for Other than Full and Open Competition), # 8 Exhibit 8 (Oliver Expert Report))(Godfrey, Nicole) (Entered: 08/24/2018)
273 Witness List by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 08/24/2018)
274 Witness List by Defendant Federal Bureau of Prisons. (Cook, Marcy) (Entered: 08/24/2018)
275 Exhibit List by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/24/2018)
276 Exhibit List by Defendant Federal Bureau of Prisons. (Cook, Marcy) (Entered: 08/24/2018)
277 MOTION for Leave to Present Testimony of Witness Ismail Oliver Via Contemporaneous Video Transmission by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/24/2018)
278 RESPONSE to 277 MOTION for Leave to Present Testimony of Witness Ismail Oliver Via Contemporaneous Video Transmission filed by Defendant Federal Bureau of Prisons. (Traskos, Kevin) (Entered: 08/24/2018)
279 NOTICE of Plaintiff's Second Amended Witness List by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit 1 − Second Amended Witness List, # 2 Exhibit 2 − Purchase Order for Halal Meals, # 3 Exhibit 3 − BOP Inmate Bulletin, # 4 Exhibit 4 − Krueger Memo re Halal Meals)(Rovner, Laura) (Entered: 08/26/2018)
280 Witness List [Amended] by Defendant Federal Bureau of Prisons. (Cook, Marcy) (Entered: 08/26/2018)
281 TRIAL BRIEF by Defendant Federal Bureau of Prisons. (Traskos, Kevin) (Entered: 08/26/2018)
282 Exhibit List − Third Amended (reflecting stipulations) by Plaintiff Ahmad Ajaj. (Rovner, Laura) (Entered: 08/26/2018)
283 Exhibit List [Amended with Stipulations] by Defendant Federal Bureau of Prisons. (Cook, Marcy) (Entered: 08/27/2018)
284 ORDER granting in part and denying in part 277 MOTION for Leave to Present Testimony of Witness Ismail Oliver Via Contemporaneous Video Transmission. The Court does not anticipate this bench trial requiring more than two days of testimony at most. If Mr. Oliver is available to testify today or tomorrow, the motion is granted. Otherwise, it is denied. By Judge R. Brooke Jackson on 8/27/18. Text Only Entry (rbjsec.) (Entered: 08/27/2018)
285 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Bench Trial Day One held on 8/27/2018. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (jdyne, ) (Entered: 08/27/2018)
286 Witness List [amended] by Defendant Federal Bureau of Prisons. (Cook, Marcy) (Entered: 08/28/2018)
287 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Bench Trial Day Two completed on 8/28/2018. Evidence and testimony given, closing arguments given, trial concluded. Written order to issue. Court Reporter: Sarah Mitchell. (jdyne, ) (Entered: 08/28/2018)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 29 of 33

09/06/2018 09/07/2018 09/10/2018 09/13/2018 09/14/2018 09/20/2018 09/20/2018 09/25/2018 09/26/2018 10/01/2018
10/01/2018
10/11/2018 10/11/2018

288 Proposed Findings of Fact and Conclusions of Law by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 − Ltr fr. Defendant's Counsel re Judicial Notice of BOP Program Stmts, # 2 Exhibit 2 − BOP PS 1221.66 Directives Mgmt Manual)(Rovner, Laura) (Entered: 09/06/2018)
289 Unopposed MOTION to Withdraw Appearance of Former Student Attorneys by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 09/07/2018)
290 ORDER granting 289 Unopposed MOTION to Withdraw Appearance of Former Student Attorneys. By Judge R. Brooke Jackson on 9/10/18. Text Only Entry (rbjsec. ) (Entered: 09/10/2018)
291 FINDINGS OF FACT AND CONCLUSIONS OF LAW by Judge R. Brooke Jackson on 9/13/18. (jdyne, ) (Entered: 09/13/2018)
292 FINAL JUDGMENT in favor of the plaintiff, Ahmad Ajaj, and against the defendant, Federal Bureau of Prisons. by Clerk on 9/14/18. (jdyne, ) (Entered: 09/14/2018)
293 Unopposed MOTION to Withdraw Appearance of Student Attorneys Alexandra Parrott and Rachel Kennedy by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 09/20/2018)
294 ORDER granting 293 Unopposed MOTION to Withdraw Appearance of Student Attorneys Alexandra Parrott and Rachel Kennedy. By Judge R. Brooke Jackson on 9/20/18. Text Only Entry (rbjsec. ) (Entered: 09/20/2018)
295 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 09/25/2018)
296 ORDER granting 295 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees. By Judge R. Brooke Jackson on 9/26/18. Text Only Entry (rbjsec. ) (Entered: 09/26/2018)
297 TRANSCRIPT of Bench Trial − Vol I held on August 27, 2018 before Judge Jackson. Pages: 1−228. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 10/01/2018)
298 TRANSCRIPT of Bench Trial − Vol II held on August 28, 2018 before Judge Jackson. Pages: 229−454. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 10/01/2018)
299 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Second) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 10/11/2018)
300 ORDER granting 299 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Second). By Judge R. Brooke Jackson on 10/11/18. Text Only Entry (rbjsec. ) (Entered: 10/11/2018)

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 30 of 33

10/12/2018
10/19/2018 10/19/2018 11/01/2018 11/08/2018 11/09/2018 11/15/2018 12/06/2018 12/06/2018 12/07/2018 12/07/2018 02/06/2019 02/07/2019
03/01/2019 03/01/2019
03/01/2019
03/01/2019

301 MOTION to Alter Judgment re 292 Judgment by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1, Proposed Amended Final Judgment, # 2 Exhibit 2 Proposed Amended Final Judgment (red−lined))(Prose, Susan) (Entered: 10/12/2018)
302 Joint MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 10/19/2018)
303 ORDER granting 302 Joint MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees. By Judge R. Brooke Jackson on 10/19/18. Text Only Entry (rbjsec.) (Entered: 10/19/2018)
304 RESPONSE to 301 MOTION to Alter Judgment re 292 Judgment filed by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 11/01/2018)
305 Joint MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Second Joint Motion) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 11/08/2018)
306 ORDER granting 305 Joint MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Second Joint Motion). By Judge R. Brooke Jackson on 11/9/18. Text Only Entry (rbjsec. ) (Entered: 11/09/2018)
307 REPLY to Response to 301 MOTION to Alter Judgment re 292 Judgment filed by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 11/15/2018)
308 Unopposed MOTION for Leave to Appear as Student Attorney by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit Law Student Appearance Form (L. Lentz))(Godfrey, Nicole) (Entered: 12/06/2018)
309 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Third) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 12/06/2018)
310 ORDER granting 308 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Third). By Judge R. Brooke Jackson on 12/7/18. Text Only Entry (rbjsec. ) (Entered: 12/07/2018)
311 ORDER granting 309 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Third). By Judge R. Brooke Jackson on 12/7/18. Text Only Entry (rbjsec ) (Entered: 12/07/2018)
312 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Fourth) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 02/06/2019)
313 ORDER granting 312 Unopposed MOTION for Extension of Time to File Bill of Costs and Petition for Attorneys' Fees (Fourth). However, the Court will not grant further extensions. By Judge R. Brooke Jackson on 2/7/19. Text Only Entry (rbjsec. ) (Entered: 02/07/2019)
314 Unopposed MOTION for Leave to Appear as Student Attorney − Jordan Staley by Plaintiff Ahmad Ajaj. (Attachments: # 1 Proposed Order (PDF Only) Staley Law Student Appearance Form)(Jefferis, Danielle) (Entered: 03/01/2019)
315 MOTION for Attorney Fees by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 − Declaration of Nicole B. Godfrey, # 2 Exhibit 2 − Decoteau v. Raemisch, Unopposed Motion for Reasonable Attorneys' Fees and Costs, # 3 Exhibit 3 − Echon v. Sackett, Order)(Jefferis, Danielle) (Entered: 03/01/2019)
316 Proposed Bill of Costs by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit A (Filing Fee), # 2 Exhibit B (Court Reporter Fees), # 3 Exhibit C (Printing Receipts), # 4 Exhibit D (Deposition Invoices), # 5 Exhibit E (Other Costs Receipts))(Godfrey, Nicole) (Entered: 03/01/2019)
317 MOTION for Order to Show Cause Why Defendant BOP Should Not Be Held in Contempt by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (SLO−USAO Conferral Emails), # 2 Exhibit 2 (Ajaj Declaration w Attachments), # 3 Exhibit 3 (Trial Transcript − Vol I), # 4 Exhibit 4 (Mr. Ajaj Medical Diet Orders), # 5 Exhibit 5

Case: 1:15-cv-992 As of: 05/07/2020 03:35 PM MDT 31 of 33

03/01/2019
03/04/2019 03/07/2019 03/10/2019 03/20/2019 03/20/2019 03/22/2019 03/27/2019 03/27/2019 03/31/2019

(Warden Memo), # 6 Exhibit 6 (Trial Transcript − Vol II), # 7 Exhibit 7 (Lindh v. Warden − Order on Contempt Motion), # 8 Exhibit 8 (Ajaj−FSA Electronic Cop−Outs))(Godfrey, Nicole) (Entered: 03/01/2019)
318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil Procedure 60(b) by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 − Transcript, Bench Trial−−Day 2, # 2 Exhibit 2 − Declaration of Ahmad Ajaj, # 3 Exhibit 3 − Declaration of El Sayyid Nosair, # 4 Exhibit 4 − Rule 30(b)(6) Deposition of BOP Designee Mark Collins, # 5 Exhibit 5 − Email Correspondence between SLO and USAO, # 6 Exhibit 6 − Group Prayer Administrative Remedies)(Jefferis, Danielle) (Entered: 03/01/2019)
319 ORDER granting 314 Unopposed MOTION for Leave to Appear as Student Attorney − Jordan Staley. By Judge R. Brooke Jackson on 3/4/19. Text Only Entry (rbjsec. ) (Entered: 03/04/2019)
320 Exhibits in Support of 318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil − Amended Exhibit 3 (with executed signature page) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 03/07/2019)
321 NOTICE re 318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil (Supplemental Evidence) by Plaintiff Ahmad Ajaj (Attachments: # 1 Exhibit)(Jefferis, Danielle) (Entered: 03/10/2019)
322 MOTION for Extension of Time to File Response/Reply as to 315 MOTION for Attorney Fees and Bill of Costs by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 03/20/2019)
323 Unopposed MOTION for Extension of Time to File Response/Reply as to 318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil, 317 MOTION for Order to Show Cause Why Defendant BOP Should Not Be Held in Contempt by Defendant Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 03/20/2019)
324 Exhibits in Support of 318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil, 317 MOTION for Order to Show Cause Why Defendant BOP Should Not Be Held in Contempt Amended Exhibit (with executed signature page) by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit Amended Exhibit 317−2 (with signature page))(Godfrey, Nicole) (Entered: 03/22/2019)
325 RESPONSE to 317 MOTION for Order to Show Cause Why Defendant BOP Should Not Be Held in Contempt filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1, Trial Transcript (excerpts), # 2 Exhibit 2, Holliday Declaration (part 1), # 3 Exhibit 2, Holliday Declaration (part 2), # 4 Exhibit 3, Buschman Declaration, # 5 Exhibit 4, Dodge Declaration, # 6 Exhibit 5, Shaffer Declaration)(Prose, Susan) (Entered: 03/27/2019)
326 RESPONSE to 318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil filed by Defendant Federal Bureau of Prisons. (Attachments: # 1 Exhibit 1, Dodge Declaration, # 2 Exhibit 2, Cieslukowski Declaration, # 3 Exhibit 3, Trial Transcript (excerpts))(Prose, Susan) (Entered: 03/27/2019)
327 NOTICE Regarding Bill of Costs Hearing re: 316 Proposed Bill of Cost. The Clerk regrets to announce to the parties that he will be unavailable the week of April 1, 2019, including the scheduled date of the Bill of Costs Hearing, April 4, 2019 at 8:30. The

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04/10/2019
04/10/2019
04/15/2019
04/15/2019 04/24/2019 04/25/2019 04/25/2019 04/26/2019 05/13/2019 05/31/2019 06/11/2019 06/12/2019 06/13/2019 06/14/2019

Clerk resets the hearing to Thursday, May 2, 2019 at 8:30 a.m. The parties are free to select another date and time that is better, by filing an amended bill of costs with a different date and the clerk will work with the parties. The clerk thanks all for their cooperation and understanding. Entered by Clerk on Mar. 31, 2019. Text Only Entry. (ebutl) (Entered: 03/31/2019)
328 REPLY to Response to 317 MOTION for Order to Show Cause Why Defendant BOP Should Not Be Held in Contempt filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Saffron Road Meals), # 2 Exhibit 2 (J&M Purchase Order), # 3 Exhibit 3 (IBS Documentation), # 4 Exhibit 4 (Ajaj Declaration), # 5 Exhibit 5 (Dinkins Declaration), # 6 Exhibit 6 (Interrogatories), # 7 Exhibit 7 (Ajaj Deposition), # 8 Exhibit 8 (Wrede Emails))(Godfrey, Nicole) (Entered: 04/10/2019)
329 REPLY to Response to 318 MOTION to Set Aside 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, pursuant to Federal Rule of Civil Procedure 60(b) filed by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit 1 (Ajaj Declaration), # 2 Exhibit 2 (Nosair Declaration), # 3 Exhibit 3 (Othmer−Prose Emails), # 4 Exhibit 4 (Ajaj−Associate Warden Emails))(Godfrey, Nicole) (Entered: 04/10/2019)
330 ORDER granting 301 Motion to Alter Judgment; denying 315 Motion for Attorney Fees; denying 317 Motion for Order to show cause; denying 318 Motion to Set Aside ; finding as moot 322 Motion for Extension of Time ; granting 323 Motion for Extension of Time by Judge R. Brooke Jackson on 4/15/19. (jdyne, ) (Entered: 04/15/2019)
331 AMENDED FINAL JUDGMENT by Clerk on 4/15/19. (jdyne, ) (Main Document 331 replaced on 4/16/2019) (jdyne, ). (Entered: 04/15/2019)
332 NOTICE of Vacated Bill of Costs Hearing. Entered by Clerk on April 24, 2019 re: 327 Notice. The Clerk vacates the May 2, 2019 Bill of Costs hearing indefinitely, on notice from the parties and in light of the parties' efforts to discuss settlement. Text Only Entry. (ebutl) (Entered: 04/24/2019)
333 Exhibits in Support of 328 Reply to Response to Motion, Amended Exhibit 328−4 (with executed signature page) by Plaintiff Ahmad Ajaj. (Attachments: # 1 Exhibit Amended Exhibit 329−1 (with executed signature page))(Godfrey, Nicole) (Entered: 04/25/2019)
334 Unopposed MOTION to Withdraw Appearance of Student Attorneys (L. Lentz & J. Staley) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 04/25/2019)
335 ORDER granting 334 Unopposed MOTION to Withdraw Appearance of Student Attorneys. Student attorneys Lilly Lentz and Jordan Staley are withdrawn. By Judge R. Brooke Jackson on 4/26/19. Text Only Entry(rbjsec.) (Entered: 04/26/2019)
336 Exhibits in Support Amended Exhibit 328−5 (with executed signature page) by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 05/13/2019)
337 NOTICE of Entry of Appearance by Darold W. Killmer on behalf of Ahmad AjajAttorney Darold W. Killmer added to party Ahmad Ajaj(pty:pla) (Killmer, Darold) (Entered: 05/31/2019)
338 Joint MOTION for Extension of Time to File Notice of Appeal Pursuant to FRAP 4(a)(5)(A) by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 06/11/2019)
339 ORDER granting 338 Joint MOTION for Extension of Time to File Notice of Appeal Pursuant to FRAP 4(a)(5)(A). By Judge R. Brooke Jackson on 6/12/19. Text Only Entry(rbjsec. ) (Entered: 06/12/2019)
340 Joint MOTION for Referral for a Settlement Conference on Attorney's Fees and Costs by Plaintiff Ahmad Ajaj. (Jefferis, Danielle) (Entered: 06/13/2019)
341 ORDER granting 340 Joint MOTION for Referral for a Settlement Conference on Attorney's Fees and Costs. By Judge R. Brooke Jackson on 6/14/19. Text Only Entry(rbjsec. ) (Entered: 06/14/2019)

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06/14/2019 06/17/2019 06/18/2019 07/15/2019 07/15/2019 07/15/2019
07/16/2019 07/16/2019 07/16/2019 07/19/2019 07/30/2019 07/31/2019

342 AMENDED ORDER OF REFERENCE by Judge R. Brooke Jackson on 6/14/19. (jdyne, ) (Entered: 06/14/2019)
343 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 6/17/19 re: 340 Order Granting Joint Motion for Referral for Settlement Conference on Attorney's Fees and Costs. IT IS HEREBY ORDERED that, no later than June 24, 2019, the parties shall jointly call Chambers to set a mutually− convenient date and time for the Settlement Conference. (lgale, ) (Entered: 06/17/2019)
344 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 6/18/19 re: 341 Order. Settlement Conference set for 7/19/2019 9:00 AM in Courtroom A401 before Magistrate Judge Kristen L. Mix. (Attachments: # 1 Attachment 1) (lgale, ) (Entered: 06/18/2019)
345 Unopposed MOTION for Leave to Attend Settlement Conference via Telephone by Plaintiff Ahmad Ajaj. (Godfrey, Nicole) (Entered: 07/15/2019)
346 MEMORANDUM regarding 345 Unopposed MOTION for Leave to Attend Settlement Conference via Telephone filed by Ahmad Ajaj. Motion 345 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 7/15/19. Text Only Entry (rbjsec,.) (Entered: 07/15/2019)
347 NOTICE OF APPEAL as to 97 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 64 MOTION to Dismiss for Failure to State a Claim by Official−Capacity Defendants MOTION to Dismiss for Lack of Jurisdiction by Official−Capacity Defendants filed by Roger Huddles, 331 Judgment, 243 Order on Motion for Summary Judgment,,,, Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Motion for Reconsideration,, Order on Motion to Exclude,, Order on Motion in Limine, 330 Order on Motion to Alter Judgment,, Order on Motion for Attorney Fees,, Order on Motion for Order,, Order on Motion to Set Aside,, Order on Motion for Extension of Time to File Response/Reply,,, 292 Judgment, 184 Order on Motion for Sanctions,, 135 Memorandum & Opinion,,, Terminate Motions,,, Add and Terminate Parties,, 210 Order on Motion for Leave,,,,,,,,,, 111 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,, Order on Report and Recommendations, 264 Order on Motion for Reconsideration by Plaintiff Ahmad Ajaj (Filing fee $ 505, Receipt Number 1082−6791403) (Godfrey, Nicole) (Entered: 07/15/2019)
348 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 347 Notice of Appeal filed by Ahmad Ajaj to the U.S. Court of Appeals. ( Retained Counsel, Fee paid,) (Attachments: # 1 Preliminary Record)(dkals, ) (Entered: 07/16/2019)
349 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 7/16/19. Unopposed Motion for Plaintiff to Appear by Phone at the Settlement Conference 345 is GRANTED.(lgale, ) (Entered: 07/16/2019)
350 USCA Case Number 19−1250 for 347 Notice of Appeal filed by Ahmad Ajaj. (dkals, ) (Entered: 07/17/2019)
351 MINUTE ENTRY for Settlement Conference held before Magistrate Judge Kristen L. Mix on 7/19/2019. (lgale, ) (Entered: 07/19/2019)
352 TRANSCRIPT ORDER FORM re 347 Notice of Appeal,,,, by Plaintiff Ahmad Ajaj (Godfrey, Nicole) (Entered: 07/30/2019)
353 LETTER TO USCA and all counsel certifying the record is complete as to 347 Notice of Appeal filed by Ahmad Ajaj. A transcript order form was filed stating that the necessary transcript is already on file. ( Appeal No. 19−1250) Text Only Entry (dkals, ) (Entered: 07/31/2019)

 
 Case 1:15-cv-00992-RBJ-KLM Document 1 Filed 05/11/15 USDC Colorado Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. AHMAD AJAJ,
Plaintiff, v. FEDERAL BUREAU OF PRISONS; WARDEN JOHN OLIVER, in his official capacity;
Defendants.
COMPLAINT
Plaintiff Ahmad Ajaj, by and through undersigned counsel, hereby submits this Complaint for violation of his rights under the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb.
I. INTRODUCTION 1. Plaintiff Ahmad Ajaj is currently incarcerated in solitary confinement at the U.S. Penitentiary Administrative Maximum Security prison (“ADX”) in Florence, Colorado. As a devout Muslim, Mr. Ajaj is required to observe Ramadan, one of the Pillars of Islam. The Pillars of Islam are five acts that observant Muslims must perform in order to practice their faith. Ramadan is a holy month during which Muslims are required to fast, meaning that observant Muslims may not ingest anything through the mouth from dawn until sunset. Muslims, like Mr. Ajaj, who are able to take required medications outside of the fasting hours without adversely affecting their health must do so in order to observe the required fast.
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2. In order to observe the fast required by his faith, Mr. Ajaj has repeatedly requested that Defendants distribute his prescribed medications before dawn and after sunset during Ramadan. Defendants have, in the past, accommodated Mr. Ajaj’s requests. In 2013 and 2014, however, Defendants informed Mr. Ajaj that his medications would be distributed between 6:00 a.m. and 6:00 p.m. during Ramadan – in other words, during hours when he is required by his religion to fast. Defendants further stated that they will continue to adhere to this medication distribution schedule during Ramadan in the future. Defendants’ refusal to distribute Mr. Ajaj’s prescribed medications before dawn and after sunset during Ramadan violates his right to exercise his religion under the First Amendment and RFRA.
II. JURISDICTION 3. This Court possesses subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). 4. Venue is proper within this district pursuant to 28 U.S.C § 1391 because all events giving rise to the claims occurred in this judicial district.
III. PARTIES 5. Plaintiff Ahmad Ajaj is a federal prisoner in the custody of the United States Bureau of Prisons (“BOP”) who has been continuously confined in ADX at all times relevant to the allegations set forth in this Complaint. 6. Defendant BOP is an agency of the United States charged with the administration of federal prisons, including ADX. The BOP maintains physical custody of Mr. Ajaj. 7. Defendant John Oliver is the Warden of ADX, and, as such, is responsible for the care and custody of all prisoners housed in ADX. He oversees all BOP staff members at ADX,
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and he has final authority and responsibility for the promulgation, creation, and implementation of policies and procedures at ADX. He is sued in his official capacity.
IV. STATEMENT OF FACTS A. Islamic Law requires observant Muslims to fast during Ramadan. 8. Ramadan is one of the Five Pillars of Islam. The Five Pillars of Islam are acts that observant Muslims are required to perform, and are the basic foundations of the Islamic religion. 9. Ramadan is a holy month during which Muslims must fast. 10. In order to observe the fast, Muslims must not ingest anything, such as food or drink, from dawn until sunset. 11. In order to observe the fast, Muslims must not ingest any medications from dawn until sunset, so long as taking those medications outside of fasting hours will not have an adverse effect on their health. 12. In 2015, Ramadan is estimated to begin on or about June 17. B. In order to observe the mandatory fast during Ramadan, Mr. Ajaj must take his prescribed medications before dawn and after sunset. 13. Mr. Ajaj is a devout Muslim. His religious beliefs have been constant and unwavering throughout his life, including his years spent incarcerated. 14. Like all observant Muslims, Mr. Ajaj is required to fast during Ramadan. 15. Doctors employed by Defendant BOP have prescribed Mr. Ajaj a variety of medications for his chronic health problems. Two of the medications prescribed to him are Neurontin and Bupropion. Neurontin helps Mr. Ajaj manage the pain associated with years of medical issues, including severe spinal canal stenosis, sciatica, and fiber periphal neuropathy. Bupropion is an antidepressant.
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16. Mr. Ajaj is housed in solitary confinement at ADX. BOP medical staff at ADX deliver Neurontin and Buproprion to Mr. Ajaj’s cell every day.
17. If Mr. Ajaj does not take his prescription medications, he will suffer from symptoms that include severe pain in his spine and legs, numbness in his hands and feet, and difficulty sleeping.
18. Mr. Ajaj is able, however, to take his prescription medications outside of fasting hours without an adverse effect on his health.
19. In order to observe the fast during Ramadan, Mr. Ajaj is prohibited by his religious faith from ingesting his prescribed medications from dawn until sunset.
20. Mr. Ajaj has thus repeatedly requested that BOP staff at ADX deliver his medications before dawn and after sunset during the month of Ramadan.
C. Defendants unjustifiably prevent Mr. Ajaj from observing Ramadan. 21. Defendants are currently refusing to deliver Mr. Ajaj’s prescription medications before dawn and after sunset during Ramadan. 22. Mr. Ajaj has exhausted the formal prison grievance process as well as filed numerous other requests regarding Defendants’ refusal to provide his medications before dawn and after sunset during Ramadan. 23. In these documents, Mr. Ajaj has extensively articulated how important observing Ramadan fasting is to his religious beliefs. Mr. Ajaj has informed Defendants that their refusal to distribute his medications before dawn and after sunset during Ramadan is a “disrespect to the Islamic faith and to the Holy month of Ramadan” causing him “loss of enjoyment” in the exercise of his religion.
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24. In the past, Defendants have accommodated Mr. Ajaj by delivering his medications outside of the fasting hours during Ramadan, signifying that doing so is not prohibitively burdensome on Defendants.
25. For the past two years, despite recommendations from the Imam with whom Defendants consulted about the issue, as well as the Chaplain at ADX, Defendants have refused to deliver Mr. Ajaj’s medications before dawn and after sunset during Ramadan.
26. Defendants have also stated that they will not distribute Mr. Ajaj’s medications before dawn and after sunset during Ramadan in the future.
27. Defendants have not proffered any legitimate or compelling government interest that would justify the denial of Mr. Ajaj’s request that Defendants deliver his medications before dawn and after sunset during Ramadan. In fact, Defendants have provided no reason at all as to why they are unwilling to accommodate Mr. Ajaj’s request.
28. In response to Mr. Ajaj’s grievances, Defendants have merely stated that “medication administration at [ADX] is conducted at set times,” which “is at approximately 6:00am and 6:00pm,” and “the decision was made not to make any changes to the pill line schedule” during Ramadan.
29. Absent an adjustment to the medication distribution schedule, Defendants BOP and Warden Oliver force Mr. Ajaj to choose between taking his prescribed medications and observing mandatory fasting during Ramadan.
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V. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (First Amendment – Restriction on Free Exercise of Religion Violation)
(Against All Defendants) 30. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein. 31. At all times relevant to the allegations set forth in this Complaint, Defendants acted or failed to act under color of federal law. 32. At all times relevant to the allegations set forth in this Complaint, Defendants were acting pursuant to federal custom, policy, or practice in their acts and omissions pertaining to their refusal to distribute Mr. Ajaj’s medications before dawn and after sunset during Ramadan. 33. The First Amendment to the Constitution protects the free exercise of religion. 34. Under the First Amendment, the government shall not substantially burden a person’s exercise of religion, unless the government demonstrates that the burden is in furtherance of a legitimate government interest justifying the burden. 35. As a devout Muslim, Mr. Ajaj is required to fast during the month of Ramadan, and thus has requested that BOP staff at ADX deliver his prescribed medications before dawn and after sunset. 36. BOP staff at ADX, under the direction and supervision of Defendant Oliver, have refused and continue to refuse to distribute Mr. Ajaj’s prescribed medications before dawn and after sunset during Ramadan. 37. The Defendants’ refusal has no rational connection to a legitimate government
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interest. In their responses to Mr. Ajaj’s grievances about the matter, Defendants provided no justification at all for their refusal to deliver Mr. Ajaj’s medication before dawn and after sunset.
38. As an incarcerated person with no other access to his prescription medications, Mr. Ajaj has no feasible alternative means of exercising his right to fast during Ramadan.
39. Granting Mr. Ajaj’s request would have minimal effects on guards, other prisoners, and prison resources generally.
40. An easy to implement alternative that would accommodate Mr. Ajajs’s rights exists: delivering his prescribed medications before dawn and after sunset during Ramadan.
41. Defendants’ acts and omissions are the proximate cause of the deprivation of Mr. Ajaj’s rights under the First Amendment.
42. The acts or omissions of Defendants were conducted within the scope of their official duties and employment.
43. As a result of Defendants’ acts or omissions, Mr. Ajaj has suffered harm and remains at risk of suffering harm during Ramadan.
SECOND CLAIM FOR RELIEF (Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb Violation)
(Against All Defendants) 44. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein. 45. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” provided in 42 U.S.C.A § 2000bb-2(1). 46. As warden of ADX, Defendant Oliver is an “official” of the United States, and therefore falls under the definition of “government” provided in 42 U.S.C.A § 2000bb-2(1).
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47. RFRA provides broader protection for religious liberty and exercise than is available under the First Amendment.
48. As a devout Muslim, Mr. Ajaj is required to fast during the month of Ramadan, and thus has requested that BOP staff at ADX distribute his prescribed medications before dawn and after sunset.
49. BOP staff at ADX, under the direction and supervision of Defendant Oliver, have refused and continue to refuse to distribute Mr. Ajaj’s prescribed medications before dawn and after sunset during Ramadan. This refusal substantially burdens Mr. Ajaj’s right to exercise his sincere religious belief.
50. In their response to Mr. Ajaj’s grievances about the matter, Defendants have not provided any compelling government interest for the policy of refusing to accommodate fasting during Ramadan by adjusting the medication distribution schedule.
51. Defendants’ acts and omissions are the proximate cause of the deprivation of Mr. Ajaj’s rights under RFRA.
52. The acts or omissions of Defendants were conducted within the scope of their official duties and employment.
53. As a result of Defendants’ acts or omissions, Mr. Ajaj has suffered harm and remains at risk of suffering harm during Ramadan.
VI. PRAYER FOR RELIEF Plaintiff requests that this Court enter judgment for him and against each of the Defendants, and award Plaintiff all relief allowed by law, including but not limited to the following: (a) in order to accommodate Mr. Ajaj’s constitutional and statutory right to the free exercise
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of his sincere religious belief, an injunction against all Defendants in their official capacities requiring BOP staff at ADX to distribute Mr. Ajaj’s prescribed medication before dawn and after sunset during the month of Ramadan; (b) a declaration that Mr. Ajaj has been deprived by Defendants of his right to freely exercise his religion under the First Amendment to the Constitution; (c) a declaration that Mr. Ajaj has been deprived by Defendants of his right to freely exercise his religion under the Religious Freedom Restoration Act of 1993; (d) attorney’s fees and costs associated with this action, including expert witness fees, on all claims allowed by law; (e) any further relief that this Court deems just and proper.
DATED: May 11, 2015
Respectfully submitted, STUDENT LAW OFFICE s/ Lauren Fontana ________________________________ Lauren Fontana Lindsey Webb University of Denver Sturm College of Law Civil Rights Clinic 2255 E. Evans Ave., Suite 335 Denver, CO 80208 P: (303) 871-6780 F: (303) 871-6847 E: lfontana@law.du.edu Counsel for Plaintiff
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 Case 1:15-cv-00992-RBJ-KLM Document 29 Filed 10/09/15 USDC Colorado Page 1 of 60
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00992-RBJ-KLM AHMAD AJAJ,
Plaintiff, v. UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; WARDEN BILL TRUE, in his official capacity; WARDEN JOHN OLIVER, in his individual capacity; WARDEN DAVID BERKEBILE, in his individual capacity; ASSOCIATE WARDEN TARA HALL, in her individual capacity; ASSOCIATE WARDEN CHRIS LAMB, in his official and individual capacity; ASSOCIATE WARDEN CALVIN JOHNSON, in his individual capacity; PHYSICIAN ASSISTANT RONALD CAMACHO, in his individual capacity; MEDICAL STAFF SAMANTHA MCCOIC, in her individual capacity; MEDICAL STAFF K. MORROW, in her official and individual capacity; CHAPLAIN MICHAEL CASTLE, in his official and individual capacity; CHAPLAIN JASON HENDERSON, in his official and individual capacity; RELIGIOUS COUNSELOR GEORGE KNOX, in his individual capacity; INMATE TRUST FUND SUPERVISOR KENNETH CRANK, in his official and individual capacity; NURSE ROGER HUDDLESTON, in his official and individual capacity, OFFICER D. PARRY, in his official and individual capacity,
Defendants.
AMENDED COMPLAINT
Plaintiff Ahmad Ajaj, by and through undersigned counsel, hereby submits this Amended Complaint for violation of his rights under the First and Fifth Amendments to the United States Constitution, the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb,
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and the Federal Tort Claims Act, 28 U.S.C. 1346(b). I. INTRODUCTION
1. This lawsuit concerns the Bureau of Prison’s (“BOP”) utter failure to accommodate Mr. Ajaj’s exercise of his religion, and the BOP’s discriminatory treatment of Mr. Ajaj because of his Muslim faith. It seeks declaratory and injunctive relief requiring the BOP and its staff to respect Mr. Ajaj’s constitutionally protected religious exercise. The lawsuit also seeks compensatory and punitive damages for the BOP’s malicious and/or reckless deprivation of Mr. Ajaj’s First Amendment right to exercise his religion. Finally, this lawsuit seeks damages from the United States for negligently failing to provide Mr. Ajaj with proper medical care because of his religious beliefs.
2. As a devout Muslim, Mr. Ajaj is required to observe the Five Pillars of Islam, including fasting during certain holidays and offering prayer five times daily. Mr. Ajaj’s religious faith also requires him to eat a Halal diet and have meaningful meetings with his spiritual leader once per week.
3. BOP policies and regulations provide that federal prison officials must respect the religious beliefs of the prisoners they confine, expressly requiring that religious holidays be observed, fasting requirements and other dietary restrictions be respected, and visits with religious leaders be allowed. Yet, in spite of these ostensibly respectful policies, BOP staff have repeatedly hindered Mr. Ajaj’s religious practice.
4. Throughout his incarceration, Mr. Ajaj has been subject to relentless discriminatory practices by BOP staff because of his race and religion. Over the years, BOP staff have used Mr. Ajaj’s faith to deliberately mock and offend him. For example, during
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weekly Islamic programming, staff have shown videos with cartoons depicting the Prophet Mohammed and nude men and women performing sexual acts. Other times, BOP staff have disrespected the Holy Qu’ran by throwing it in the trash.
5. For years, Mr. Ajaj has continually requested that Defendants distribute his meals and prescribed medications before dawn and after sunset during religious fasting periods, give him meaningful access to an Imam, allow him to participate in group prayer within his cell or during recreational time, and provide him with Halal meals or certified Halal food options through the commissary. For years, Mr. Ajaj has consistently and relentlessly explained the sincerity of his religious beliefs and practices to Defendants.
6. Nonetheless, Defendants have insistently refused to accommodate Mr. Ajaj’s requests without providing any legitimate penological interest for their refusal. Defendants’ consistent refusals have placed considerable pressure on Mr. Ajaj to abandon his religious practices. Mr. Ajaj must choose between obtaining his prescribed medications and observing religious fasts; he must choose between eating and consuming a religiously forbidden diet; and he must choose between receiving a disciplinary action and participating in group prayer. Finally, Defendants’ refusal to provide regular access to an Imam in violation of their own policy gives Mr. Ajaj no choice but to forego religious guidance.
II. JURISDICTION AND VENUE 7. This Court possesses subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), the Administrative Procedure Act, 5 U.S.C. § 702, RFRA, 42 U.S.C. § 2000bb–1(c), the FTCA, 28 U.S.C. § 1346(a)(2), and Bivens v. Six Unknown Agents of Federal Bureau of
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Narcotics, 403 U.S. 388 (1971).1 8. Venue is proper within this district pursuant to 28 U.S.C § 1391 because a
substantial portion of the events giving rise to the claims occurred in this judicial district.
III. PARTIES
9. Plaintiff Ahmad Ajaj is a federal prisoner in the custody of the United States Bureau of Prisons (“BOP”) who has been continuously confined in the United States Penitentiary – Administrative Maximum (“ADX”) in Florence, Colorado, since 2012. Mr. Ajaj is a sincere adherent of Sunni Islam.
10. At all relevant times, the BOP officers described herein were acting within the scope of their employment with BOP and, as such, Defendant United States of America is the proper defendant under the Federal Tort Claims Act.
11. Defendant BOP is an agency of the United States charged with the administration of federal prisons, including ADX. The BOP maintains physical custody of Mr. Ajaj.
12. Defendant Bill True is the acting warden of ADX temporarily replacing Defendant John Oliver, who left his position as ADX Warden on September 25, 2015. As acting warden, Defendant True oversees all BOP staff members at ADX and is responsible for 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1	  Plaintiff acknowledges that this district, relying on dicta in Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)
and Bush v. Lucas, 462 U.S. 367, 390 (1983), has refused to recognize First Amendment Bivens claims. See, e.g., Shepard v. Rangel, No. 12–cv–01108–RM–KLM, 2014 WL 7366662, at *15 (D. Colo. Dec. 24, 2014); Bogard v. Hutchings, No. 12-cv-01581-KMT, 2014 WL 959496, at *3 (D. Colo. Mar. 12, 2014); Saleh v. United States, No. 09-02563, 2011 WL 2682803, at *11 (D. Colo. Mar. 8, 2011), overruled in part on other grounds, No. 09–02563, 2011 WL 2682728 (D. Colo. July 8, 2011). In the event this Court believes Plaintiff’s prayer for damages under Bivens should be precluded by these decisions, Plaintiff notes he is seeking damages pursuant to Federal Rule of Civil Procedure 11(b)(2) (“the claims . . . are warranted by … a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law.”).	  
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implementing policies and procedures. He is sued in his official capacity. 13. Defendant John Oliver was the Warden of ADX from mid-2014 until September
25, 2015, and was responsible for the care and custody of all prisoners housed there. As Warden, Defendant Oliver oversaw all BOP staff members at ADX, and had final authority and responsibility for the promulgation, creation, and implementation of policies and procedures at ADX. He is sued in his individual capacity.
14. Defendant David Berkebile was the Warden of ADX in 2013 and 2014. During that time, he was responsible for the care and custody of all prisoners housed in ADX and oversaw all BOP staff members at ADX. In 2013 and 2014, he had the final authority and responsibility for the promulgation, creation, and implementation of policies and procedures at ADX. He is sued in his individual capacity.
15. Defendant Tara Hall was an Associate Warden of ADX in 2013 and 2014. She was responsible for overseeing the Inmate Trust Fund and various departments within ADX, including the Health Services Department and. She is sued in her individual capacity.
16. Defendant Chris Lamb is an Associate Warden at the Florence Correctional Complex (“FCC”) and is responsible for the Health Services Department at ADX. He is sued in his individual capacity.
17. Defendant Calvin Johnson was an Associate Warden of ADX in 2013 until April or May of 2014. He was responsible for overseeing various departments within ADX, including the Religious Services Department. He is sued in his individual capacity.
18. Defendant Kenneth Crank is the Inmate Trust Fund Supervisor for the FCC, including ADX. He is responsible for ordering all products for the prison commissary. He is
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sued in his individual capacity. 19. Defendant Michael Castle was the ADX chaplain in 2012, and in 2013 became
the regional chaplain at the BOP’s North Central Regional Office. As regional chaplain, he is responsible for overseeing the institutional Chaplains. He is sued in his individual capacity.
20. Defendant Ronald Camacho was a physician’s assistant at ADX in 2013 and part of 2014. One of his duties was to deliver medications to the prisoners’ cells, including during Ramadan. He is sued in his individual capacity.
21. Defendant Samantha McCoic was a member of the medical staff at ADX in 2013 and 2014. She was responsible for delivering medications to the prisoners’ cells, including during Ramadan. She is sued in her individual capacity.
22. Defendant K. Morrow is a member of the medical staff at ADX. She is responsible for dispensing medications to the prisoners, including during Ramadan. She is sued in her individual capacity.
23. Defendant Roger Huddleston is a member of the medical staff at ADX. He is responsible for delivering medications to the prisoners’ cells, including during Ramadan. He is sued in his official and individual capacity.
24. Defendant Chaplain Jason Henderson is the FCC Chaplain and is in charge of the religious services department at ADX. He is tasked with providing pastoral care and facilitating visits to prisoners by members of the outside religious community. He is sued in his individual capacity.
25. Defendant Religious Counselor George Knox is a member of the religious services department at ADX. As a religious services counselor, he is required to assist the
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Chaplain in his duties. He is sued in his individual capacity. 26. Defendant D. Parry is a correctional officer at ADX and is responsible for the
custody and care of Mr. Ajaj. As such, Defendant Parry has the ability to discipline Mr. Ajaj if he deems it necessary.
IV. STATEMENT OF FACTS A. Mr. Ajaj’s Background in the BOP 27. Defendant BOP has had physical custody of Mr. Ajaj, a devout Muslim, since 1993. From 1993-2001, Defendant BOP housed Mr. Ajaj in high security prisons. 28. On February 1, 2001, Defendant BOP transferred Mr. Ajaj from a high security facility in Beaumont, Texas, to a medium-security prison in Edgefield, South Carolina (“FCIEdgefield”). Seven months later, after the falling of the Twin Towers on September 11, 2001, Defendant BOP began its practice of targeting and punitively punishing Muslim prisoners, including Mr. Ajaj. 29. On September 11, 2001, Defendant BOP abruptly placed Mr. Ajaj in the Special Housing Unit (“SHU”) at FCI-Edgefield without notice and without Mr. Ajaj having any disciplinary infractions. 30. The SHU is a housing unit within FCI-Edgefield separate from the general population, where Mr. Ajaj was housed alone. 31. Mr. Ajaj remained in the SHU until his unannounced transfer to the ADX in Florence, Colorado in September 2002. 32. ADX is the most secure facility within the BOP, and it is meant to house the “worst of the worst.” ADX is also known as the “Alcatraz of the Rockies.”
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33. Mr. Ajaj was transferred to ADX despite having no violent disciplinary infractions.
34. Mr. Ajaj managed to go from the general population of a medium security prison to the most restrictive federal prison in the country over the course of one year without committing any violent offenses during that time.
35. After holding Mr. Ajaj in solitary confinement for eight years in ADX, in January of 2010, Defendant BOP transferred Mr. Ajaj to U.S. Penitentiary Marion (“USP-Marion”).
36. In USP-Marion, Mr. Ajaj was housed in the Communications Management Unit (“CMU”).
37. The CMU is a unit in which Defendant BOP severely restricts, manages, and monitors prisoners’ communications with the outside world.
38. The overwhelming majority of prisoners confined in CMU are Muslim. 39. While he was housed in the CMU, Mr. Ajaj utilized the administrative remedy process at CMU often and helped other prisoners file grievances. 40. Unhappy with the number of grievances Mr. Ajaj filed and assisted other prisoners in filing, Defendant BOP transferred Mr. Ajaj back to ADX without warning in May 2012. 41. Defendant BOP’s transfer of Mr. Ajaj in 2012 was in clear retaliation for filing administrative grievances, many of them related to religious issues. 42. Again, Defendant BOP transferred Mr. Ajaj to the most secure facility in the country, meant for the most violent offenders, without ever citing him for a violent prison infraction.
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43. Since his transfer back to ADX in 2012, Defendant BOP has housed Mr. Ajaj in solitary confinement.
44. Because Mr. Ajaj is locked down in his cell most of the time, ADX staff is therefore responsible for delivering everything from daily meals to prescription medications to Mr. Ajaj’s cell.
45. Given the conditions of his confinement, Mr. Ajaj is at the mercy of ADX officials to observe many tenets of his religion.
46. For years, Defendant BOP has intentionally or recklessly deprived Mr. Ajaj of his right to practice his religion in various respects discussed herein.
47. Throughout his incarceration, Mr. Ajaj has utilized the statutorily mandated administrative remedy process for all these issues to no avail.
B. Mr. Ajaj’s Medications. 48. Mr. Ajaj has a history of chronic health problems, including chronic fatigue syndrome, anxiety, severe spinal canal stenosis, fiber peripheral neuropathy, and sciatica. His neurological problems have caused him to suffer immense back pain and numbness in his extremities. 49. Doctors employed by Defendant BOP have prescribed Mr. Ajaj a variety of medications in order to treat these and other health issues. Two of the medications prescribed to him are Neurontin and Bupropion. Neurontin helps Mr. Ajaj manage the pain associated with his neurological issues. Bupropion is an antidepressant. 50. When Mr. Ajaj is deprived of his Bupropion for more than a day, he suffers from symptoms that include worsened depression, irritability, agitation, dizziness, mood and
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emotional problems, severe night sweats, restlessness, and other related symptoms. 51. Additionally, when Mr. Ajaj does not take his Neurontin for more than a day, he
experiences severe pain in his spine and legs, numbness in his hands and feet, cramping, weakness, and stiffness.
52. Mr. Ajaj is able, however, to take his prescription medications before dawn and after sunset without an adverse effect on his health.
53. Mr. Ajaj is housed in solitary confinement at ADX. BOP medical staff, including Defendants MORROW, MCCOIC, CAMACHO, and HUDDLESTON are responsible for delivering Neurontin and Buproprion to Mr. Ajaj’s cell every day.
54. Defendants BOP, BERKEBILE, HALL, LAMB, MCCOIC, MORROW, HUDDLESTON, and CAMACHO owe a duty to protect the health and safety of the prisoners they confine, including providing for the medical needs.
55. Mr. Ajaj informed Defendants BOP, BERKEBILE, HALL, and LAMB of his medical conditions necessitating prescription medications.
56. Defendants BOP, BERKEBILE, HALL, and LAMB therefore were aware that Mr. Ajaj needs his prescription medications to treat his pain and depression.
57. Defendants MCCOIC, MORROW, HUDDLESTON, and CAMACHO were responsible for delivering Mr. Ajaj’s prescribed medications during 2014.
58. As part of the medical staff, Defendants MCCOIC, MORROW, HUDDLESTON, and CAMACHO were aware of Mr. Aja’s medical conditions necessitating prescription medications.

	  

C. As a Devout Muslim, Mr. Ajaj is Required to Fast During Certain Muslim

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Holidays Throughout the Year. 59. Mr. Ajaj is a devout Muslim. His religious beliefs have been constant and
unwavering throughout his life, including his years spent incarcerated. 60. Mr. Ajaj’s years of administrative remedies filed in an effort to observe his
religious faith demonstrate his firm belief in Islam. 61. Defendant BOP’s annual “Inmate Skills Development Plan” for Mr. Ajaj
consistently identifies him as an “active participant” of the Islamic faith. 62. Chaplain Sacchorello, the current ADX chaplain, confirmed in writing that Mr.
Ajaj is sincere in his religious beliefs. 63. The Five Pillars of Islam are acts that observant Muslims are required to perform
and are the basic foundations of the Islamic religion. 64. Fasting is one of the Five Pillars of Islam. 65. Ramadan is a holy month during which Muslims must fast. 66. In order to observe the fast, Muslims must not ingest any medications from dawn
until sunset, so long as taking those medications outside of fasting hours will not have an adverse effect on their health.
67. Like all observant Muslims, Mr. Ajaj is required to fast during Ramadan. 68. In order to observe the fast during Ramadan, Mr. Ajaj is prohibited by his religious faith from ingesting any food or prescribed medications from dawn until sunset. 69. Another Pillar of Islam is the Hajj. The Hajj is a religiously mandated pilgrimage to Mecca. When a practicing Muslim is physically unable to make the pilgrimage to Mecca, alternative forms of worship are highly encouraged in lieu of the Hajj.
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70. Because he is serving a sentence of 114 years, Mr. Ajaj likely will never go for Hajj.
71. Therefore, it is Mr. Ajaj’s firmly held belief that he must participate in additional fasts dictated by the Prophet Mohammed.
72. Mr. Ajaj firmly believes that participating in additional fasts will earn him great rewards and blessing from Allah.
73. The verbal teachings of Prophet Mohammed are called the “Sunnah.” 74. The Sunnah dictates that Muslims should fast on Mondays and Thursdays; six days during the month of Shawwal (the tenth month of the Islamic calendar); the day of Arafa, which is the ninth day of the month of Zul-Hijjah; Ashura, which is the tenth day of the Islamic month of Muharram; and during most of the month of Sha’ban (collectively, “Sunnah Fasts”).	   75. In order to participate in the Sunnah Fasts, Mr. Ajaj is prohibited by his religious faith from ingesting any food or prescribed medication from dawn until sunset. 76. Mr. Ajaj has thus repeatedly requested that Defendants BOP, BERKEBILE, HALL, LAMB, OLIVER, CAMACHO, MCCOIC, MORROW, and HUDDLESTON deliver his medications before dawn and after sunset during Ramadan and the Sunnah Fasts. 77. Mr. Ajaj has repeatedly requested that Defendant BOP deliver his meals before dawn and after sunset during Sunnah Fasts. D. Defendants Unjustifiably Prevented Mr. Ajaj From Observing Ramadan and Continue to Prevent Mr. Ajaj’s Participation in Sunnah Fasts. 78. In 2011, the BOP housed Mr. Ajaj in USP-Marion in the Communications Management Unit (“CMU”). 79. While in custody at USP-Marion, Mr. Ajaj began taking prescription medications
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that BOP medical staff served via the pill line. 80. Prisoners who consume medications via the pill line must take the medication in
the presence of the medical personnel staff member who delivers it. 81. Therefore, since at least 2011, the medical staff at USP-Marion and ADX dictated
the times at which Mr. Ajaj received his prescribed medication. 82. BOP regulations provide that “the warden shall endeavor to facilitate the
observance of important religious days which involve special fasts, dietary regulations, worship, or work proscription.” 28 C.F.R. § 548.18
83. Consistent with BOP policy, Mr. Ajaj requested his prescription medications be delivered outside fasting hours in order to fully observe the fast during Ramadan 2011.
84. The BOP denied Mr. Ajaj’s requests and USP-Marion medical staff dispensed Mr. Ajaj’s medications during fasting times throughout Ramadan 2011.
85. Mr. Ajaj exhausted his administrative remedies about the BOP’s refusal to accommodate in Ramadan 2011.
86. In May 2012, the BOP unexpectedly transferred Mr. Ajaj to ADX. 87. On June 1, 2012, in response to Mr. Ajaj’s Ramadan 2011 grievances, National Inmate Appeals Administrator Harrell Watts informed Mr. Ajaj that because he was transferred to ADX, he must speak with the Chaplain on site. 88. Defendant CASTLE was the institution chaplain at ADX when Mr. Ajaj arrived in 2012. 89. In 2012, the BOP’s central office sent a memorandum to ADX stating that ingesting medication after daylight and before sundown during Ramadan violates the religiously
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required fast. 90. In conjunction with the memorandum, Defendant CASTLE worked with Mr. Ajaj
to ensure that his medications would be delivered outside fasting hours. 91. As a result, when Mr. Ajaj was first transferred to ADX in 2012, ADX staff
delivered Mr. Ajaj’s medications to him before dawn and after sunset during Ramadan. 92. In 2013 and 2014, however, ADX staff refused to deliver Mr. Ajaj’s medications
as they did during Ramadan 2012. 93. Mr. Ajaj spent two years filing administrative remedies in an attempt to observe
Ramadan in accordance with his religious faith. 94. For years, Mr. Ajaj also exhausted his administrative remedies for the Sunnah
Fasts as they occurred throughout the year. 95. In these documents, Mr. Ajaj extensively articulated how important observing
religiously mandated fasting is to his religious beliefs. 96. Mr. Ajaj has informed Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL,
LAMB, CAMACHO, MORROW, MCCOIC, CASTLE, and HUDDLESTON both verbally and in writing that their refusal to distribute his medications before dawn and after sunset during Ramadan and the Sunnah Fasts disrespects the Islamic faith and deprives him of his right to partake in Ramadan and the Sunnah Fasts.
97. Mr. Ajaj has informed Defendant BOP in writing that its refusal to deliver meals before dawn and after sunset during Sunnah Fasts deprives him of his right to participate in fasts in line with Prophet Mohammed’s the Sunnah.
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i. Ramadan 2013 98. Prior, throughout, and after Ramadan 2013, while housed at ADX, Mr. Ajaj wrote to Defendants BOP, HALL, BERKEBILE, and LAMB requesting his medication be delivered outside fasting hours during Ramadan. 99. In response, Mr. Ajaj received an anonymous response stating simply that that “[t]he pill lines will be completed twice daily at the standard usual times of 6:00 am and 18:00 pm,” and that “I trust this addresses your concerns.” 100. Defendants BOP, BERKEBILE, and HALL also responded that “pill lines are conducted at approximately 6:00 a.m. and 6:00 p.m. daily” and cannot be changed “for the convenience of ingesting it at a later time.” 101. In June 2013, the onsite chaplain reiterated the contents of the 2012 central office memorandum to staff in the ADX medical department. 102. Despite these reminders, Defendants BOP, BERKEBILE, HALL, and LAMB directed Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW not to make any special accommodations for Mr. Ajaj with respect to his medication delivery time. 103. Prior to Ramadan 2013, Defendant HALL met with Mr. Ajaj and assured him that his medications would be delivered at the appropriate times during Ramadan to allow him to fast. 104. Despite these assurances, Defendant HALL issued orders to medical staff, including Defendants CAMACHO, MORROW, MCCOIC, and HUDDLESTON that they need not accommodate fasting with respect to the timing of dispensing medications to observant Muslims during Ramadan. 105. Defendant LAMB also sent a memorandum to medical staff, including
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Defendants CAMACHO, MORROW, HUDDLESTON, and MCCOIC explaining it is not necessary to accommodate Ramadan with respect to the pill line distribution.
106. Therefore, Defendants CAMACHO, MORROW, MCCOIC, and HUDDLESTON refused to deliver Mr. Ajaj’s prescribed medications outside fasting hours.
107. On many occasions during Ramadan, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW were seen in Mr. Ajaj’s unit outside fasting hours delivering medications to other prisoners.
108. Rather than give Mr. Ajaj his medications, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW stood idly by until fasting began, at which point they sometimes attempted to provide Mr. Ajaj with his medications.
109. On other occasions, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW never attempted to provide Mr. Ajaj his medications.
110. Instead, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW recorded that he either refused to take his medication or took his medication when asked, when, in fact, Mr. Ajaj was never able to take his medication during Ramadan 2013.
111. Shortly before and after Ramadan 2013, Defendants MCCOIC, MORROW, CAMACHO, and HUDDLESTON began distributing medications at around 4:00 a.m. and 8:30 p.m. In other words, Defendants BOP, MCCOIC, MORROW, CAMACHO, and HUDDLESTON delivered Mr. Ajaj’s medications at times that were before sunrise and after sunset, demonstrating it was not a substantial burden to do so during Ramadan.
112. Mr. Ajaj exhausted his administrative remedies with respect to the pill line distribution times to no avail.
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113. Specifically, Mr. Ajaj wrote to Defendants BOP, BERKEBILE, OLIVER, HALL, and LAMB that their failure to accommodate his fasting offended and disrespected the Islamic faith and the Holy Month of Ramadan, causing him “loss of enjoyment” in the exercise of his religion.
114. In these documents, Mr. Ajaj informed Defendants BOP, BERKEBILE, OLIVER, HALL, and LAMB in writing of the Tenth Circuit’s holding regarding a prisoner’s right to fully participate in Ramadan. See Makin v. Dep’t of Corrs., 183 F.3d 1205, 1211 (10th Cir. 1999).
115. Defendants BOP, BERKEBILE, OLIVER, and HALL responded to Mr. Ajaj’s administrative remedies by simply stating that pill lines start at specific times and will not be changed to accommodate Mr. Ajaj’s request during Ramadan.
116. On information and belief, when a prisoner appeals a grievance to the regional office, the regional office refers the grievance to a subject matter expert to prepare a response.
117. On information and belief, Defendant CASTLE, as the regional chaplain, is the subject matter expert assigned to prepare responses to grievances regarding religious exercise grievances.
118. Mr. Ajaj appealed his 2013 administrative remedy regarding the pill line distribution time.
119. On information and belief, Defendant CASTLE prepared the response. 120. Defendant CASTLE reversed course from his prior accommodation of Ramadan procedures during his time at ADX in 2012, and simply responded to Mr. Ajaj’s appeal by stating that the “[m]edical administration at [ADX] is conducted at set times,” without providing a penological justification.
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121. Defendants BOP, BERKEBILE, OLIVER, CASTLE, and HALL never provided any legitimate or compelling government interest that would justify their denial of Mr. Ajaj’s request to respect his religious exercise.
122. Faced with a Hobson’s choice of observing his religion or taking his medication, Mr. Ajaj chose to observe his religion and was therefore forced to forego taking his necessary medications.
123. Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CASTLE, CAMACHO, MORROW, MCCOIC, and HUDDLESTON’s refusal to provide Mr. Ajaj with his medication outside fasting times during Ramadan caused him severe pain, including numbness and cramping and led to him suffering many sleepless nights.
ii. Ramadan 2014 124. In 2014, Mr. Ajaj wrote a letter to Defendant CASTLE seeking his help in persuading Defendant BOP to respect his observance of Ramadan by delivering his medications outside fasting hours. 125. Defendant CASTLE is the regional chaplain of the North Central Region and is therefore responsible for facilitating proper practice of prisoners’ religious faith. 126. In the letter, Mr. Ajaj complained that Defendants BOP, BERKEBILE, HALL, and LAMB were refusing to accommodate the upcoming Ramadan and requested that Defendant CASTLE do something to ensure Ramadan was accommodated. 127. Defendant CASTLE ignored Mr. Ajaj’s letter. 128. In the middle of Ramadan 2014, Defendant OLIVER became warden at ADX and continued the practice of his predecessors by refusing to accommodate Mr. Ajaj’s pill line
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requests. 129. Defendant HALL again issued orders to medical staff, including Defendants
CAMACHO, MORROW, MCCOIC, and HUDDLESTON that they need not accommodate fasting with respect to the timing of dispensing medications to observant Muslims during Ramadan.
130. Therefore, Defendants CAMACHO, MORROW, HUDDLESTON and MCCOIC continued to refuse to deliver Mr. Ajaj’s prescribed medications outside fasting hours during Ramadan.
131. Consistent with Ramadan 2013, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW were seen in Mr. Ajaj’s unit outside fasting hours delivering medications on many occasions.
132. Rather than give Mr. Ajaj his medications, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW stood idly by until fasting began, at which point they sometimes attempted to provide Mr. Ajaj with his medications.
133. On other occasions, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW never attempted to provide Mr. Ajaj his medication.
134. Instead, Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW recorded that he either refused to take his medication or took his medication when asked, when, in fact, Mr. Ajaj was never able to take his medications during Ramadan 2014.
135. Defendants CAMACHO, MCCOIC, HUDDLESTON, and MORROW were acting within the scope of their employment when they failed to serve Mr. Ajaj his medication during Ramadan 2014.
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136. When Mr. Ajaj asked Defendant CAMACHO why he was not delivering his medications outside fasting hours, Defendant CAMACHO told him that he would not accommodate his fasting as it is Mr. Ajaj’s choice to fast during Ramadan, and Mr. Ajaj deserved his pain and suffering.
137. On another occasion, Defendant CAMACHO asked why Mr. Ajaj worships Allah when Allah is the one depriving him of his medications.
138. On several occasions during Ramadan 2014, Defendant CAMACHO distributed medications to nearby, non-Muslim prisoners after sunset, but refused to provide Mr. Ajaj with his medication at that time.
139. Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CAMACHO, MORROW, MCCOIC, and HUDDLESTON’s refusal to provide Mr. Ajaj with his medication outside fasting times during Ramadan resulted in Mr. Ajaj suffering severe pain, including numbness and cramping, and led to many sleepless nights.
140. Shortly before and after Ramadan 2014, Defendants MCCOIC, MORROW, CAMACHO, and HUDDLESTON began distributing medications at around 4:00 a.m. and 8:30 p.m. In other words, Defendants BOP, MCCOIC, MORROW, CAMACHO, and HUDDLESTON delivered Mr. Ajaj’s medications at times that were before sunrise and after sunset, demonstrating it was not a substantial burden to do so during Ramadan.
141. In 2014, Mr. Ajaj exhausted his administrative remedies with respect to the pill line distribution times during Ramadan.
142. In these documents, Mr. Ajaj continued to inform Defendants BOP, HALL, BERKEBILE, OLIVER, and LAMB of his deeply held religious belief in observing Ramadan
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and the Tenth Circuit’s endorsement of proper Ramadan observance within prisons. 143. Defendants BOP, HALL, BERKEBILE, and OLIVER responded that Mr. Ajaj’s
complaints were repetitive from the prior year’s Ramadan and that the pill line would not be modified.
144. Defendants HALL, BERKEBILE, and LAMB were acting within the scope of their employment when they refused to deliver Mr. Ajaj’s medication outside fasting hours during Ramadan 2014.
145. Mr. Ajaj appealed the denial of his administrative remedy to the regional office regarding the distribution of his medication during Ramadan.
146. On information and belief, Defendant CASTLE prepared the response to Mr. Ajaj’s appeal that simply stated that his appeal was repetitive of his former grievances in 2013, thereby implicitly endorsing Defendant BOP’s substantial burden on Mr. Ajaj’s observance of Ramadan.
147. Once again faced with a Hobson’s choice of observing his religion or taking his medication, Mr. Ajaj chose to observe his religion and was therefore forced to forego taking his necessary medications.
148. Defendants BOP, BERKEBILE, OLIVER, HALL, CASTLE, LAMB, CAMACHO, MORROW, MCCOIC, and HUDDLESTON’s refusal to provide Mr. Ajaj with his medication outside fasting times during Ramadan resulted in severe pain, numbness, weakness, stiffness, severe night sweating, restlessness, deep depression, irritability, agitation, dizziness, mood and emotional problems, and other related symptoms.
149. When Defendants BOP, BERKEBILE, CASTLE, HALL, OLIVER, and LAMB
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refused to adjust the medication distribution schedule, Defendants forced Mr. Ajaj to choose between taking his prescribed medications and observing mandatory fasting during Ramadan.
150. Defendants MORROW, MCCOIC, CAMACHO, and HUDDLESTON’s refusal to distribute Mr. Ajaj’s prescribed medications outside fasting hours forced Mr. Ajaj to choose between taking his prescribed medications when offered and observing mandatory fasting during Ramadan.
151. Mr. Ajaj endured severe pain in order to fully observe Ramadan in 2013 and 2014, further evidencing his sincere belief in the Muslim faith.
152. In addition to exhausting his administrative remedies within the BOP, Mr. Ajaj also exhausted the administrative process under the FTCA.
153. Mr. Ajaj submitted a signed “Claim for Damage, Injury, or Death” to the BOP, North Central Regional Office on July 28, 2014 for Defendant BOP’s failure to deliver Mr. Ajaj’s medications, which are necessary to treat his medical conditions, during Ramadan 2014.
154. Mr. Ajaj requested $130,000 for the injuries he sustained from Defendant BOP’s failure to deliver his medications during Ramadan 2014.
155. Defendant BOP denied Mr. Ajaj’s FTCA claim (claim # TRT-NCR-2014-05750) on January 21, 2015.
156. Mr. Ajaj timely requested Defendant BOP reconsider its denial. 157. On July 31, 2015, Defendant BOP affirmed its denial in writing.
iii. Ramadan 2015 158. In May 2015, Mr. Ajaj filed this lawsuit in anticipation of the upcoming Ramadan after Defendants told him that they would once again not accommodate his fasting with respect
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to the distribution of his medications. 159. After the filing of this lawsuit through counsel, Defendants suddenly changed
their position and accommodated Mr. Ajaj throughout Ramadan with the exception of two days. 160. On August 28, 2015, Defendants amended the “complex supplement” for the
Florence Correctional Complex (“FCC”), entitled “Religious Beliefs and Practices” that requires ADX staff to accommodate practicing Muslims during Ramadan with respect to the pill line.
161. Complex supplements are dynamic policies that are reviewed annually by wardens.
162. Complex supplements can be overridden at any time by the national program statements created by the BOP.
163. On September 25, 2015, Warden John Oliver left his position at ADX. He was replaced by interim Warden Bill True.
164. In December 2015, Jack Fox will become warden at ADX. 165. It is not uncommon for new wardens to change institution or complex supplements. 166. The amendment to the “Religious Beliefs and Practices” complex supplement confirms the BOP’s ability to create policies to support inmates’ religious practices that, for years, the BOP largely thwarted. 167. During Ramadan 2015, after the commencement of this lawsuit, Defendants BOP, OLIVER, LAMB, MORROW, HUDDLESTON, and CASTLE accommodated Mr. Ajaj’s requests, demonstrating their ability to do so. 168. Nonetheless, on September 23, 2015, approximately one month after the creation
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of the new complex supplement, Amber Nelson, acting Regional Director of the North Central Region of Defendant BOP, responded to Mr. Ajaj’s grievance regarding his request to have the pill line changed for proper Ramadan observance.
169. Ms. Nelson explained that the BOP’s decision to not modify the pill line distribution time during Ramadan remains firm.
170. In other words, the BOP continues to take the position that Mr. Ajaj’s observance of Ramadan will not be accommodated, even after the creation of a complex supplement stating otherwise.
iv. Sunnah Fasting 171. The verbal preaching of Prophet Mohammed is called the “Sunnah.” 172. The Sunnah recommends fasting during certain holy days throughout the Islamic calendar year, particularly when Muslims physically cannot go for Hajj. 173. Like Ramadan, the Sunnah Fasts require Muslims not to ingest any food from dawn until sunset. 174. In order to observe the Sunnah Fasts, Muslims also must not ingest any medications from dawn until sunset, so long as taking those medications outside of fasting hours will not have an adverse effect on their health. 175. Mr. Ajaj has repeatedly explained to Defendants BOP, BERKEBILE, OLIVER, KNOX, CASTLE, and HALL that the Prophet Mohammed preaches that Muslims will be rewarded and blessed by Allah for their participation in the Sunnah Fasts. 176. For years, Defendants BOP, BERKEBILE, OLIVER, HENDERSON, KNOX, and HALL have refused to provide Mr. Ajaj with his meals or medication outside fasting hours
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during the observance of the Sunnah Fasts. 177. After Ramadan 2015, the Sunnah Fast during the month of Shawwal began. 178. During the Sunnah Fast, Defendants BOP, OLIVER, TRUE, MORROW, and
HUDDLESTON refused to accommodate Mr. Ajaj’s fasting in any way. 179. Defendants BOP and TRUE refused, and continue to refuse, to provide Halal food
before sunrise and after sunset during the Sunnah Fasts. 180. Defendants BOP, OLIVER, TRUE, MORROW, and HUDDLESTON refused,
and continue to refuse, to deliver Mr. Ajaj’s prescribed medications before sunrise and after sunset.
181. The Sunnah Fasting has since concluded, and Defendants MORROW and HUDDLESTON are currently serving Mr. Ajaj his medication at around 3:00 a.m. In other words, Defendants BOP, TRUE, LAMB, MORROW, and HUDDLESTON are accommodating Mr. Ajaj’s previous requests after required fasting has concluded.
182. Mr. Ajaj has exhausted his administrative remedies with respect to the Sunnah Fasts.
E. As a Devout Muslim, Mr. Ajaj is Required to Consume Only Certified Halal Food and Certified Halal Meats.
183. Islamic principles require observant Muslims to consume only Halal food. 184. Islamic doctrine dictates that non-Halal (haram or “forbidden”) food destroys the spirituality and morality of the consumer. A Muslim who consumes non-Halal food is termed a “faasiq” (dissolute) and he is considered a flagrant sinner. The prayers of a person eating haram food are ineffective for forty days. 185. The Qur’an states “so eat meats on which Allah’s name has been pronounced”
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and “[h]e who does not eat meat is not of my religion.” As such, Mr. Ajaj believes that to fully observe this mandate of Islam he must eat a completely Halal diet with Halal meats. In other words, Mr. Ajaj sincerely believes that he is forbidden from being vegetarian.
186. To meet the requirements of Halal food, herbivorous animals must be fed, raised, and slaughtered according to Islamic dietary laws. It is not permissible to consume even nonmeat products prepared in factories that also process pork and haram meats.
187. All ingredients for food must be Halal. Items used in preparing haram foods can contaminate Halal foods, thereby making those foods haram.
F. In Order to Observe Islamic Dietary Laws, Mr. Ajaj Must Be Provided a Halal Diet At ADX and Allowed to Purchase Halal Food From the Commissary.
188. The BOP Program Statement on Religious Beliefs and Practices states “[t]he Bureau provides inmates requesting a religious diet reasonable and equitable opportunity to observe their religious dietary practice within the constraints of budget limitations and the secure and orderly running of the institution and the Bureau through a religious diet menu…The other component accommodates dietary needs through nationally recognized, religiously certified processed foods.” BOP Prog. Statement P5360.09.
i. Defendants Unjustifiably Prevent Mr. Ajaj From Maintaining a Halal Diet. 189. Mr. Ajaj is housed in K-Unit at ADX. BOP staff at ADX deliver individually wrapped meals from an outside vendor to Mr. Ajaj’s cell every day. He may also supplement this food with purchased items from the prison commissary. 190. ADX offers four meal options to prisoners: a regular diet, no-pork diet, no-meat diet, and the Common Fare diet (a Kosher diet). The regular diet contains many haram
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components including, but not limited to, pork and pork by-products. 191. The no-pork diet contains haram components including, but not limited to: the
meat of animals that were fed, raised, and slaughtered in non-halal ways; items prepared by factories or utensils which also process pork and other haram products; and questionable ingredients that may be from pork sources like shortening, certain forms of whey, and gelatin.
192. Jewish prisoners are able to obtain their religiously mandated Kosher diet through the Common Fare diet.
193. Kosher food is not necessarily Halal. 194. The no-meat diet contains haram components including a lack of Halal meats (which the Qu’ran mandates eating), pork and meat by-products, and food prepared by factories, equipment, and utensils in contact with haram products. 195. Mr. Ajaj was previously on the no-pork diet. Currently, Mr. Ajaj is on the nomeat diet as he believes it more closely conforms to his religious needs. 196. The meals Mr. Ajaj has been provided under this dietary program have consistently included haram foods including pork byproducts, haram enzymes, and foods prepared with haram equipment. 197. Mr. Ajaj is forced to refrain from eating questionable items in order to avoid haram foods and is therefore unable to eat substantial portions of his prison-provided meals. 198. For years, Mr. Ajaj has repeatedly requested that BOP staff at ADX provide him Halal meals with Halal meats. He has repeatedly drawn their attention to the religious deficiencies in the Common Fare diet offered by the Food Services Department. 199. In 2014 and 2015 alone, Mr. Ajaj filed at least six separate grievances on this
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issue. 200. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, HENDERSON, and
KNOX have been informed both verbally and in writing by Mr. Ajaj that their refusal to provide a Halal diet violates the Islamic faith and deprives him of his right to partake in a fundamental tenet of Islam.
201. In a 2014 response to Mr. Ajaj’s Request for an Administrative Remedy asking for a diet that meets his religious needs, Defendant BERKEBILE wrote to Mr. Ajaj that the Common Fare diet meets the Program Statement 4600.06 [Food Service Manual] requirements for a religious diet because it is Kosher. Defendant BERKEBILE incorrectly told Mr. Ajaj that a Kosher diet meets the standards for Muslims. He provided no reason why Halal meals with meat could not be served.
202. In 2015, Defendant OLIVER responded to Mr. Ajaj’s Request for Administrative Remedy asking for a diet that meets his religious needs stating that “no item served [by Food Services] during Ramadan is required to be Halal.” He provided no reason why Halal meals with meat could not be served.
203. In response to Mr. Ajaj’s appeal of Defendant BERKEBILE’s decision on Mr. Ajaj’s request of a diet that meets his religious needs, Paul Laird, Regional Director in the North Central Regional Office and agent of Defendant BOP, said “The religiously certified meals currently being served are adequate to meet the religious dietary requirements and you are being afforded a reasonable and equitable opportunity to observe your religious dietary practice . . . furthermore, inmates [are provided] the ability to purchase through SPO program, Halal certified entries.” He provided no reason why Halal meals with meat could not be served.
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204. In July 2013, in response to an informal resolution by Mr. Ajaj asking for a diet that meets his religious needs, an agent of Defendant BOP told Mr. Ajaj the Food Services Department “is not required to serve Halal meals and Mr. Ajaj must purchase Halal from commissary.”
205. Given that Defendants BOP and TRUE oversee, and Defendant’s OLIVER, and BERKEBILE formerly oversaw, all BOP staff members and inmates at ADX and are or were responsible for implementing policies and procedures, their inaction resulted in Mr. Ajaj being served haram food every day for years. The refusal to provide a Halal diet means Mr. Ajaj is confronted with a Hobson’s choice at every meal – he must choose whether to eat or to observe his religion.
ii. The Items Available at Commissary Also Do Not Meet Mr. Ajaj’s Religious Requirements. 206. The BOP’s Trust Fund Department runs the prison commissary, which provides inmates an opportunity to purchase articles or services not issued or delivered as basic care by the institution or of a different quality. BOP Prog. Statement 4500.11. 207. Prisoners may be able to supplement commissary offerings through a Special Purchase Order (SPO) for certain approved items. Trust Fund staff coordinate with the Chaplain to identify religious articles that may be purchased through the SPO program. Id. 208. Jewish prisoners are able to purchase additional Kosher meals through the commissary. 209. The items available to purchase through SPO at the prison commissary include four vegetarian Halal-certified meals. 210. Halal meats are not regularly offered through the commissary.
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211. Since 2011, Mr. Ajaj has repeatedly requested that Halal meals with meat be offered in the commissary.
212. From 2013 to 2015, Mr. Ajaj filed at least thirty grievances and appeals at every level of the BOP asking for the ability to meet his religious needs through commissary.
213. Defendant HALL, on behalf of Defendant BERKEBILE, told Mr. Ajaj in response to a dietary grievance that “religious requirements are addressed by the religious services department.”
214. Defendants KNOX and HENDERSON, member and head of religious services department respectively, received many requests from Mr. Ajaj for SPO options that would allow him to observe his Halal diet. The SPO continues to include the same entrees that do not meet his requirements.
215. Defendant KNOX told Mr. Ajaj that if he has issues with SPO he needs to address them with commissary.
216. Defendant CRANK, as the individual responsible for ordering all products for the prison commissary, also repeatedly ignored Mr. Ajaj’s request for Halal meals with meats. Defendant CRANK did not add a single entrée to the commissary that met Mr. Ajaj’s religious requirements even after Mr. Ajaj provided names and contact info of many potential vendors – some of whom ADX currently does business with for other food purchases.
217. Defendant CRANK repeatedly makes it difficult for Mr. Ajaj to buy food through SPO by ignoring Mr. Ajaj’s specific requests, skipping his deliveries, and prohibiting Mr. Ajaj from utilizing the SPO as mandated – for special religious purchases.
218. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, HENDERSON,
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CRANK, and KNOX have been informed both verbally and in writing by Mr. Ajaj that their refusal to provide Halal meals with Halal meat in the commissary violates the Islamic faith and deprives him of his right to partake in a fundamental tenet of Islam.
219. In order to ensure the foods he purchases are Halal, Mr. Ajaj must first buy the items and then check the ingredients himself. He has requested that the Inmate Trust Fund provide a list of what items contain pork by-products.
220. Defendant OLIVER responded to a request for such a list in 2015 by saying “it is not the role of the Trust Fund department to make that determination for each individual inmate.”
221. Mr. Ajaj has thus, alternatively, requested labels from commissary items prior to purchase, but no labels have ever been provided to him.
222. Defendant CRANK has refused to provide Mr. Ajaj with either a list or commissary labels for questionable items after repeated requests.
223. A 2014 response to Mr. Ajaj’s Request for Administrative Remedy where he asks for Halal-certified meals with meat, Defendant HALL, responding on behalf of Defendant BERKEBILE, said “when costs are comparable and products meet the needs of the institution, the Commissary elects to sell products that have a reliable kosher certification.” She did not provide a reason why the commissary could not sell Halal-certified meals with Halal meats.
224. In a 2015 response to Mr. Ajaj’s request Halal meals and meats to be sold in the commissary, Amber Nelson, Acting Regional Director of the North Central Region of Defendant BOP, provided no reason why the commissary could not sell Halal-certified meals with Halal meats.
225. In a 2013 note responding to Mr. Ajaj’s request that Halal meals with meats be
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sold at commissary through the SPO program, Defendant KNOX refused to acknowledge Mr. Ajaj’s stated problems with commissary and provided no reasons why Mr. Ajaj should not be able to have access to entrees that met his religious requirements.
226. In response to Mr. Ajaj’s repeated requests for commissary items that meet his Halal dietary restrictions, Defendant BOP officials, including Defendant BERKEBILE, have repeatedly told Mr. Ajaj that “[c]ommissary items are meant to complement, not supplement, diet and medical care provided to inmates.”
iii. Even if the Commissary Sold Foods That Met His Religious Needs, Mr. Ajaj Is Prohibited By BOP Policy From Meeting His Religious Dietary Needs Via SPO Program. 227. Assuming inmates can afford SPO items, they are limited in how often they can purchase them and how many they may possess. 228. Inmates are expected to pay for SPO religious items in addition to paying restitution, purchasing medicine, hygiene products, legal writing and correspondence materials, and paying for phone calls. 229. Defendant BOP responded to Mr. Ajaj’s Request to Staff Member (“Cop-Out”) requesting religiously-certified meals on his commissary list at USP Marion by stating: “The placement of food items on the SHU commissary list is decided at each institution. Commissary is a privilege, not a right . . . for sanitation reasons, food items are limited to the regular meals provided by Food Service.” 230. In a 2014 response to Mr. Ajaj’s request to buy meals that meet his religious diet at ADX, Defendant BERKEBILE wrote “it is not the role of the commissary to fully accommodate or meet your dietary and religious needs . . . your religious dietary needs can be
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met by electing to participate in the Religious Diet Program offered by the Food Service department.”
231. Every day, Mr. Ajaj is required to either eat meals that violate his religious beliefs or go without eating. He may purchase meals from the commissary that more closely adhere to his religious beliefs to the exclusion of other vital purchases like writing materials and over-thecounter medical treatments. His ability to purchase even those items is “a privilege,” and, per BOP policy, he is not able to substitute those items for his diet.
232. Mr. Ajaj sincerely believes that consuming haram food is a flagrant sin that invalidates his acts of worship, inhibits his spiritual development, and weakens his relationship with Allah.
233. Given that ADX already distributes religious meals to accommodate some religious inmates, Mr. Ajaj has repeatedly provided BOP officials with numerous vendors, including vendors ADX already uses, that offer fully Halal meat entrees to be sold at commissary.
234. ADX has over 100 Muslim prisoners, all of whom would find their Halal dietary needs met by the Halal meat diet and vendors Mr. Ajaj has repeatedly recommended.
235. Defendants BOP, TRUE, BERKEBILE, OLIVER, HALL, HENDERSON, CRANK, and KNOX collectively prohibited Mr. Ajaj from meeting his religious dietary needs— needs that 20% of ADX inmates share—through any possible avenue.
236. Defendants first told Mr. Ajaj that his religious diet would not be accommodated by Food Services.
237. Then Defendants told Mr. Ajaj he should purchase such religious-certified items
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(that only partially meet his needs) from the commissary. 238. Finally, when Mr. Ajaj attempted to obtain Halal-certified foods from the
commissary, Defendants told him that commissary purchase are a privilege, not a right, and that religiously-certified food items may not be allowed on the SHU commissary list at all.
239. In the face of this dilemma, Mr. Ajaj continued to grieve to all available parties in order to exhaust all reasonable efforts to obtain food that meets his religious dietary needs. Moreover, federal law requires a prisoner to exhaust administrative remedies before he is permitted to try to raise an issue in court.
240. In a 2015 email asking Defendant KNOX to advise on a BP-8 grievance regarding religious accommodation, Defendant KNOX told Mr. Ajaj’s counselor, “Don’t give him anymore . . . I mean bp8s.”
241. Defendant BERKEBILE, in a response to a 2014 grievance regarding the Halal food issue, chastised Mr. Ajaj by saying, “You have the responsibility to use the Administrative Remedy Program in good faith and in an honest and straightforward manner.” He provided no reason why the commissary could not provide Mr. Ajaj with Halal meat in his purchased food.
242. Defendants BERKEBILE and KNOX helped create a systematic barrier to Mr. Ajaj’s religious exercise and then proactively endeavored to limit his ability to even grieve about it.
243. Despite these challenges, Mr. Ajaj has persisted in exhausting his administrative remedies many times over, requesting that Defendants provide food items that would allow him to observe a religious diet consistent with his sincerely held beliefs. In response, Defendants have steadfastly refused to accommodate Mr. Ajaj’s need for food items consistent with the
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tenets of his religion. G. As a Devout Muslim, Mr. Ajaj Must Meet Regularly With An Imam. 244. Islamic law mandates regular consultation with an Imam to ensure compliance
with religious values in daily life. 245. An Imam is the primary Islamic religious leader who leads others in formal
prayers, outlines lessons from the Qur’an by explaining its meaning and application in the daily life of Muslims, gives advice and counseling on personal, family, and financial issues, helps Muslims apply the rules of Islam to daily life, and builds Muslim community and fellowship.
246. Mr. Ajaj sincerely believes that an Imam provides him with much needed religious advice and counseling generally and, in particular, on the complicated spiritual challenges that prison presents.
H. In Order to Meet With An Imam, Mr. Ajaj Must Be Granted Such Opportunities by Defendants.
247. At ADX, where Mr. Ajaj is incarcerated, all pastoral visits must be coordinated and approved by ADX officials.
248. BOP policy on Religious Beliefs and Practices states “[i]f requested by an inmate, the chaplain shall facilitate arrangements for pastoral visits by a clergy person or representative of the inmate's faith.” BOP Prog. Statement P5360.09.
249. It also states “[t]he institution’s chaplain may contract with representatives of faith groups in the community to provide specific religious services which the chaplain cannot personally deliver due to, ordinarily, religious prescriptions or ecclesiastical constraints to which the chaplain adheres.” Id.
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250. The Florence Correctional Complex’s (“FCC”) Complex Supplement on Religious Beliefs and Practices states that “[c]ontract religious leaders provide professional leadership for faith groups who have no Chaplain Representative qualified to perform as ministers to the group.” FCC 5360.09E.
251. The BOP Technical Manual on Ministry of BOP Chaplains states: “Inmates may receive visits from community clergy. The chaplains will assist in arranging the visits. These clergy visits provide opportunities for inmates to receive pastoral care and serve to maintain community ties with the inmates’ faith traditions.” BOP Tech. Man. T5360.02.
252. It also states “chaplains will recruit and use contractors and volunteers to meet the religious needs of the inmates.” Id.
253. As discussed below, Defendants BOP, BERKEBILE, JOHNSON, and HENDERSON have failed to follow and repeatedly violated BOP’s own policies and procedures with respect to provided Mr. Ajaj access to an Imam.
I. When It Is Granted, Mr. Ajaj’s Access to a Religious Representative Is Substantially Different From that of Other Inmates.
254. On information and belief, at least 20% of prisoners, more than 80 people, at ADX alone are Muslim.
255. In 2013, Defendant BERKEBILE responded to Mr. Ajaj’s request for access to an Imam by saying “the contract Imam visits the complex four times a month . . . the contract Imam is responsible for visiting all inmates on the complex who request to see him at each institution.” He provided no reason why the huge population of Muslim prisoners were only entitled to so few visits from an Imam.
256. On information and belief, for almost three years, the entire FCC has operated
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without a Muslim Chaplain, a Muslim Religious Counselor, or any full-time Muslim Religious Services Department Staff.
257. The FCC employs full-time Chaplains for other religious groups including Christian, Seventh-day Adventist, Catholic, and Jewish Chaplains.
258. For 11 years, from 2002-2010 and 2012-present, there have been no approved religious Muslim volunteers at ADX.
259. Volunteers of other faiths have been approved as volunteers for Jewish and Native American prisoners.
260. At the beginning of 2013, the BOP contracted a part-time Imam who visited Mr. Ajaj once a month at best, and usually only once every few months.
261. When Mr. Ajaj did have a sporadic visit from an Imam, the Imam was prohibited from conducting any prayer with Mr. Ajaj.
262. Christian and Jewish religious representatives are allowed to perform rituals and prayers with prisoners during visits.
263. Jewish religious representatives and chaplains interacting with Jewish prisoners are able to read and speak in Hebrew.
264. During the infrequent Imam visits, Mr. Ajaj was often limited to less than ten minutes for spiritual guidance.
265. During the few times in 2013 he was permitted visits with the Imam, Mr. Ajaj was required to participate in the religious visit through two prison doors, one of which is solid steel.
266. Religious visits for Christian and Jewish inmates are not conducted behind the
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solid steel cell door. 267. Due to a serious medical condition, Mr. Ajaj has only one lung. This severely
limits his ability to communicate quickly or loudly because it is difficult for him to breathe. Defendants are aware of Mr. Ajaj’s medical condition, yet make no effort to accommodate him during religious visits.
268. In 2013, Defendant HALL, on behalf of Defendant BERKEBILE, responded to Mr. Ajaj’s request for Imam visitation and prayer during visits by saying that “[d]ue to security concerns regarding the space, location, and time restraints of Imam visits, it may not be permissible to conduct prayer during his visits.” He provided no reason why such security concerns exist for Muslim religious visits but not for other religious visits.
269. In 2014, Defendant BERKEBILE responded to Mr. Ajaj’s request for Imam visitation, specifically more private visitation access than behind two doors, by stating “[p]rivate visits will be considered contingent on available space and staff to facilitate a different location other than a cell front visit.” He provided no reason why such a visit had never been granted to Mr. Ajaj while other inmates were allowed these kinds of visits.
J. Defendants Unjustifiably Prevent Mr. Ajaj From Visitation With An Imam. 270. By the end of 2013, Mr. Ajaj had no interactions with an Imam for eight months. 271. For 13 months, from August 2014 to September 2015, Defendants provided Mr. Ajaj no access to an Imam. 272. Defendants BOP, BERKEBILE, OLIVER, HALL, HENDERSON, and KNOX ignored repeated cop-outs, informal resolutions, and requests for administrative remedy sent by Mr. Ajaj, pleading for access to an Imam.
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273. From 2013 to 2015, Mr. Ajaj filed at least twenty-nine grievances, at every level of the BOP, asking for regular and meaningful access to an Imam.
274. In 2014, Defendant KNOX, as a Religious Services Counselor, responded to what Defendant KNOX called Mr. Ajaj’s “reminder” that he needed to see the Imam when he visited that day by writing back four days later to inform Mr. Ajaj that “[the Imam] visited as many housing units/inmates as he could.” He did not provide any reasons why Mr. Ajaj’s earlier requests for visitation could not be met by another Imam or by increasing the days the Imam visited ADX inmates.
275. Defendant BERKEBILE responded to Mr. Ajaj’s grievances in 2014 on this issue by restating that a contract Imam visits the entire complex four times a month. He did not tell Mr. Ajaj why he had not been visited by the Imam.
276. In January 2015, responding to Mr. Ajaj’s grievance about the lack of visitation from an Imam, Defendant KNOX said “[t]he Imam is currently ill and is undergoing treatment . . . when he returns and makes rounds I will bring him to visit with you.” Defendant KNOX provided no explanation of how long the contract Imam would be away or what would be done for pastoral care for Mr. Ajaj in the interim.
277. In May 2015, Defendant OLIVER addressed Mr. Ajaj’s grievance about not having access to an Imam since August 2014 by saying “[d]ue to personal reasons, the contract Imam has not been visiting the institution. When the Imam returns to the institution, you will be seen by him.” He did not provide any reasons why another Imam could not be contracted or accessible via telephone during this nine month period. He did not make arrangements for alternative pastoral care in the interim.
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278. Mr. Ajaj has repeatedly asked for access to an Imam in more convenient ways for the prison – either through video conferences or phone calls – to no avail.
279. 280. Defendants KNOX and HENDERSON, in charge of Mr. Ajaj’s pastoral care, refused to provide Mr. Ajaj with access to an Imam, either in-person or via telephone, for over one year. 281. They refused to recruit a Muslim volunteer to visit Mr. Ajaj for over one year. 282. Mr. Ajaj filed at least nine institutional-level grievances on this issue between September 2013 and August 2015. Defendant KNOX, acting as an assistant to Defendant HENDERSON, answered three notes from Mr. Ajaj by reiterating ADX’s Imam schedule, but refused to work to provide any access to Ajaj. 283. During his time without religious guidance or access, Mr. Ajaj has submitted at least two sets of religious questions to Defendant KNOX that have never been answered. 284. Defendants BERKEBILE, OLIVER, and HALL, in charge of overseeing the religious services department and inmate care at ADX, refused to provide Mr. Ajaj with access to an Imam, either in-person or via telephone, for over one year. They refused to hire or recruit other Muslim representatives for over a year. 285. Defendant BERKEBILE, and Defendant HALL writing on his behalf, personally responded to eight of Mr. Ajaj’s grievances between February 2013 and February 2014 on this issue. They simply quoted ADX policy and eventually started closing his Requests for Administrative Remedy deeming them “repetitive.” 286. Defendant OLIVER, in charge of overseeing the religious services department
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and inmate care at ADX, refused to provide Mr. Ajaj with access to an Imam, either in-person or via telephone, for over one year. He refused to hire or recruit other Muslim representatives for over a year.
287. Defendant OLIVER personally responded to two of Mr. Ajaj’s grievances asking for access to an Imam by telling Mr. Ajaj that “when the Imam returns to the institution [he] would be seen by him.” Defendant OLIVER refused to provide Mr. Ajaj any kind of access to an Imam during the yearlong gap in visitation.
288. As a result of not having any type of access to an Imam for over a year, Mr. Ajaj has been unable to receive Islamic spiritual counseling and guidance during a period of time when his prison conditions have presented serious religious questions and issues. Mr. Ajaj has been unable to pray with a leader in his religious community and gain the spiritual fellowship that results from the fundamental Islamic relationship a Muslim has with his Imam.
289. Mr. Ajaj’s alienation from a religious leader has drastically inhibited his ability to follow the tenets of his faith and maintain and develop his relationship with Allah.
290. While other inmates were allowed to pray with their religious representatives, in 2013 Mr. Ajaj was told by the Regional Director of Defendant BOP’s North Central Office that “[d]ue to the security concerns regarding the space and location of the Imam visits, it may not be permissible to conduct prayers during his visits.”
291. After more than a year without seeing an Imam, Mr. Ajaj received a visit from an Imam in late September 2015 - a few months after he retained counsel in this suit. This visit was not behind his two cell doors. This shows that any security concerns and problems in providing access to an Imam could have been easily overcome.
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292. Defendants BOP, BERKEBILE, OLIVER, HALL, HENDERSON, and KNOX refused to act for over a year while Mr. Ajaj was denied any type of access to the religious counseling of an Imam.
K. As a Devout Muslim, Mr. Ajaj Must Pray With Other Muslims Five Times Daily.
293. Salaat, or prayer, is one of the Five Pillars of Islam. 294. Muslims must perform Salaat five times daily. 295. The Prophet Mohammed rewards those who pray in groups during Salaat. 296. Mr. Ajaj firmly believes that Allah punishes those who fail to participate in congregational prayers and rewards those who do. 297. Each prayer takes approximately five to ten minutes to complete. 298. Each Friday between noon and the mid-afternoon prayer, Muslims are obligated to partake in congregational prayer, or Jum’ah. 299. Jum’ah is similar to the Saturday services of the Jewish faith, or Sunday services of the Christian faith. 300. At ADX and in the CMU, prisoners are allowed to interact with one another during recreation time. 301. Prisoners are allowed to speak with each other while they are in their individual cells, though. In order to do so, prisoners must yell. 302. During the times when prisoners are permitted to speak with each other, Mr. Ajaj has asked to pray with other Muslim prisoners. 303. This request does not interfere with the security concerns of the prison. 304. Nonetheless, Muslims in ADX are not permitted any opportunity to perform
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congregate prayers. 305. Defendants BOP, BERKEBILE, OLIVER, HALL, KNOX, PARRY, and
JOHNSON threatened Mr. Ajaj and other Muslim inmates with disciplinary action if they perform Salaat with any other prisoners.
306. When Mr. Ajaj asked Defendants BERKEBILE, OLIVER, JOHNSON, and HALL why he was unable to pray for five minutes simultaneously with other Muslim prisoners in their isolation cells, especially when other prisoners cause loud disruptions throughout the night, Defendants BERKEBILE, OLIVER, JOHNSON, and HALL simply reminded Mr. Ajaj that he would receive disciplinary action if he attempted to pray with other Muslim prisoners.
307. Defendant PARRY threatens disciplinary action against Muslim prisoners who attempt to pray with or at the same time as any other Muslim prisoner.
308. Defendant PARRY goes so far as to place Muslim prisoners in the SHU who attempt the call to prayer (Ad’han).
309. Defendant PARRY outwardly mocks and jokes about the Islamic ritual of congregate prayer.
310. Mr. Ajaj must therefore decide between practicing a fundamental tenet of his religion and being subject to harsh disciplinary actions, which could keep him confined at ADX indefinitely.
311. When Mr. Ajaj asked Defendant KNOX whether he could ever participate in group prayer, Defendant KNOX explained to Mr. Ajaj that he should already know he may not pray with anyone.
312. Defendant KNOX’s told Mr. Ajaj that the reason Mr. Ajaj was forbidden from
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praying with other Muslims or an Imam was a security concern. 313. Yet, Christian, Jewish, and Native American prisoners are able to pray with their
respective clergypersons, demonstrating Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, PARRY, KNOX, and JOHNSON’s willingness to allow group prayer for prisoners who practice other religions.
314. In the K-unit at ADX, where Mr. Ajaj is currently housed, congregational prayers of other religious faiths take place in the open range–outside of a prisoner’s cell, indicating a lack of security concerns by Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, PARRY, KNOX, and JOHNSON.
315. In the more secure units at ADX, prisoners are allowed to pray with clergypersons of other religious faiths within the prisoner’s cell. In K unit, religious groups other than Muslims are allowed to spend hours singing and praying on the range.
316. Prohibiting Mr. Ajaj from performing congregate prayers constrains his ability to engage in a central and obligatory tenet of Islam.
V. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (First Amendment – Restriction on Free Exercise of Religion Violation) (Against Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, LAMB, CAMACHO, MORROW, MCCOIC, HUDDLESTON, CASTLE, HENDERSON, KNOX, and CRANK) a. Failure to Accommodate Religious Fasting (Against Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, LAMB, CAMACHO, MORROW, MCCOIC, HUDDLESTON, and CASTLE) 317. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein.
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318. At all times relevant to the allegations set forth in this Complaint, Defendants acted or failed to act under color of federal law.
319. At all times relevant to the allegations set forth in this Complaint, Defendants were acting pursuant to federal custom, policy, or practice in their acts and omissions pertaining to their refusal to distribute Mr. Ajaj’s medications before dawn and after sunset during Ramadan and Sunnah Fasts.
320. The First Amendment to the Constitution protects the free exercise of religion. 321. Under the First Amendment, the government shall not substantially burden a person’s exercise of religion, unless the government demonstrates that the burden is in furtherance of a legitimate government interest justifying the burden. 322. As a devout Muslim, Mr. Ajaj is required to fast during the month of Ramadan and thus has requested that Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, and CASTLE direct Defendants MORROW, MCCOIC, CAMACHO, and HUDDLESTON at ADX to deliver his prescribed medications before dawn and after sunset. 323. Defendants CAMACHO, MORROW, MCCOIC, and HUDDLESTON, under the direction and supervision of Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, and LAMB, refused to distribute Mr. Ajaj’s prescribed medications before dawn and after sunset during Ramadan 2013 and 2014. 324. Defendants CAMACHO, MORROW, MCCOIC, and HUDDLESTON could have respected Mr. Ajaj’s faith by delivering his medications at the appropriate time, but they deliberately decided not to do so. 325. Mr. Ajaj believes the Prophet Mohammed’s teaching dictates that Mr. Ajaj should
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partake in the Sunnah Fasts. 326. Defendants BOP, BERKEBILE and OLIVER have refused, and Defendants BOP,
TRUE, CASTLE, MORROW, and HUDDLESTON continue to refuse, to distribute Mr. Ajaj’s prescribed medications before dawn and after sunset during Sunnah Fasts.
327. Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CASTLE, MORROW, MCCOIC, HUDDLESTON, and TRUE’s refusal has no rational connection to a legitimate government interest. In their responses to Mr. Ajaj’s grievances about fasting, Defendants BOP, BERKEBILE, HALL, and OLIVER provided no justification at all for their refusal to deliver Mr. Ajaj’s medications before dawn and after sunset during religiously required fasting days.
328. As an incarcerated person in solitary confinement with no other access to his prescription medications or meals, Mr. Ajaj has no feasible alternative means of exercising his right to fast during Ramadan and Sunnah Fasts.
329. Accommodating Mr. Ajaj’s religiously-mandated fasts would have minimal effect on correctional staff, other prisoners, and prisoner resources generally.
330. An easy-to-implement alternative that would accommodate Mr. Ajaj’s rights exists: delivering his prescribed medications and meals before dawn and after sunset during religiously required fasting days.
331. As a result of Defendants’ acts or omissions, Mr. Ajaj has suffered harm and remains at risk of suffering harm during future fasting days.
332. The acts or omissions of Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CASTLE, CAMACHO, MORROW, MCCOIC, and HUDDLESTON caused Mr. Ajaj
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severe pain that was more than de minimus. 333. Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CASTLE,
CAMACHO, MORROW, MCCOIC, and HUDDLESTON’s comments and conduct were malicious, and/or evinced a reckless or callous indifference to Mr. Ajaj’s federally protected rights.
b. Failure to Provide Religious Diet (Against Defendants BOP, TRUE, OLIVER, BERKEBILE, HALL, CRANK,
HENDERSON, and KNOX) 334. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein. 335. At all times relevant to the allegations set forth in this Complaint, Defendants were acting pursuant to federal custom, policy, or practice in their acts and omissions pertaining to their refusal to provide Mr. Ajaj a fully Halal diet with meat and fully Halal foods in the commissary. 336. As a devout Muslim, Mr. Ajaj is required to consume only Halal foods that meet the requirements of Islamic dietary law. 337. Defendants HENDERSON, and KNOX, under the direction and supervision of Defendants BOP, TRUE, OLIVER, BERKEBILE, and HALL, refused to provide Mr. Ajaj with meals that comply with his religious mandate. Defendant HENDERSON, as coordinator of religious diets, refused to act even when Mr. Ajaj repeatedly brought his concerns to him. 338. Defendants BOP, BERKEBILE, OLIVER, and HALL refused, and Defendants BOP, TRUE, HENDERSON, CRANK and KNOX continue to refuse, to accommodate Mr. Ajaj’s dietary requirements in either regular meals or commissary offerings. Defendants TRUE,
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OLIVER, and BERKEBILE, as wardens who are the ultimate decision makers on commissary items made available to prisoners like Mr. Ajaj, refused Mr. Ajaj’s repeated requests for entrees that met his religious requirements.
339. Defendants’ refusal has no rational connection to a legitimate government interest. In their responses to Mr. Ajaj’s grievances regarding his religious dietary needs, Defendants provided no justification at all for their refusal to provide him with Halal meals or their refusal to use vendors in the commissary that offer Halal meals with Halal meats.
340. As an incarcerated person with no independent access to food, Mr. Ajaj has no feasible alternative means of exercising his right to follow such a Halal diet.
341. Mr. Ajaj has conducted thorough research and informed Defendants of alternative vendors and meal programs that would meet his and other Muslims’ strict dietary requirements.
342. Granting Mr. Ajaj’s request for Halal meals would have minimal effects on correctional staff, other prisoners, and prison resources generally as many prisoners at ADX are Muslim and religious foods are already accommodated for inmates of other religions in the existing system.
343. An easy-to-implement alternative that would accommodate Mr. Ajaj’s rights exists: providing a religious diet option that is fully Halal with Halal meats and/or offering the same vendor that other prisons use to provide prisoners with fully Halal meals for purchase at the commissary instead of a vendor who does not offer fully Halal meals.
344. As a result of Defendants’ acts or omissions, Mr. Ajaj has suffered harm and remains at risk of suffering harm because he is unable to consume meals that meet the requirements of his religious beliefs.
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c. Failure to Provide Meaningful Access to Imam (Against Defendants BOP, BERKEBILE, OLIVER, HALL, HENDERSON, and KNOX)
345. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein.
346. At all times relevant to the allegations set forth in this Complaint, Defendants were acting pursuant to federal custom, policy, or practice in their acts and omissions pertaining to their refusal to allow Mr. Ajaj access to an Imam.	  
347. As a devout Muslim, Mr. Ajaj is required to regularly consult with leaders of his religion and develop a more personal relationship with Allah through prayers and consultation with an Imam.
348. Defendants HENDERSON, KNOX, and HALL, under direction and supervision of Defendants BOP, BERKEBILE and OLIVER, refused to allow Mr. Ajaj any kind of access to an Imam for over a year. These Defendants denied him such access as agents of Defendant BOP.
349. Defendants’ refusal has no rational connection to a legitimate government interest. In their responses to Mr. Ajaj’s grievances, Defendants provided no justification at all for their refusal to allow him such visitation.
350. As an incarcerated person with tightly restricted access to religious services, Mr. Ajaj has no feasible alternative means of exercising his right to consult regularly with a pastoral individual of his faith.
351. Granting Mr. Ajaj’s request would have minimal effects on guards, other prisoners, and prison resources generally.
352. An easy-to-implement alternative that would accommodate Mr. Ajaj’s rights
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exists: allowing Mr. Ajaj to either be visited in-person by an Imam or helping to facilitate his access via internet or phone conference.
353. Mr. Ajaj has repeatedly proposed these alternatives to in-person visits to Defendants, who have refused to grant his requests.
354. As a result of Defendants’ acts or omissions, Mr. Ajaj has suffered harm and remains at risk of suffering harm during future fasting days.
SECOND CLAIM FOR RELIEF (RFRA, 42 U.S.C. § 2000bb Violation) (Against Defendants BOP BERKEBILE, OLIVER, TRUE, HALL, LAMB, CAMACHO, MORROW, MCCOIC, HUDDLESTON, CASTLE, CRANK, HENDERSON, KNOX,
JOHNSON, and PARRY) a. Failure to Accommodate Religious Fasting (Against Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CAMACHO, MORROW, MCCOIC, HUDDLESTON, and CASTLE) 355. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein. 356. Defendant BOP is an agency of the federal government and therefore falls within the definition of “government” provided in 42 U.S.C. § 2000bb-2(1). 357. As wardens, associate wardens, and employees of ADX, Defendants are “official[s]” of the United States and therefore fall under the definition of “government” provided in 42 U.S.C. § 2000bb-2(1). 358. As a devout Muslim, Mr. Ajaj is required to fast during the month of Ramadan and Sunnah Fasts, and thus has requested that Defendants BOP, BERKEBILE, HALL, LAMB, OLIVER, MCCOIC, MORROW, CAMACHO, and HUDDLESTON distribute his prescribed medications before dawn and after sunset.
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359. Defendants CAMACHO, MORROW, MCCOIC, and HUDDLESTON, under the direction and supervision of Defendants BOP, BERKEBILE, OLIVER, HALL, and LAMB, refused to distribute Mr. Ajaj’s prescribed medications before dawn and after sunset during Ramadan 2013 and 2014.
360. This refusal substantially burdened Mr. Ajaj’s right to exercise his sincere religious belief by forcing Mr. Ajaj to choose between taking his prescribed medications and participating in Ramadan.
361. In their responses to Mr. Ajaj’s grievances about Defendants failure to accommodate the fasts, Defendants BOP, OLIVER, BERKEBILE, HALL, and LAMB have not provided any compelling government interest for the policy of refusing to accommodate fasting during Ramadan and Sunnah Fasts by adjusting the medication distribution schedule.
362. Defendants BOP, OLIVER, BERKEBILE, HALL, LAMB, CAMACHO, MORROW, MCCOIC, and HUDDLESTON’s acts and omissions are the proximate cause of the deprivation of Mr. Ajaj’s rights under RFRA.
363. The acts or omissions of Defendants BOP, OLIVER, BERKEBILE, HALL, LAMB, CAMACHO, MORROW, MCCOIC, and HUDDLESTON were conducted within the scope of their official duties and employment.
364. The acts or omissions of Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CAMACHO, MORROW, MCCOIC, and HUDDLESTON caused Mr. Ajaj severe pain that was more than de minimis.
365. The acts or omissions of Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB, CAMACHO, MORROW, MCCOIC, and HUDDLESTON were malicious and/or
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evinced reckless or callous disregard for Mr. Ajaj’s federally protected rights. 366. As a result of Defendants BOP, BERKEBILE, OLIVER, HALL, LAMB,
CAMACHO, MORROW, MCCOIC, and HUDDLESTON’s acts or omissions, Mr. Ajaj has suffered harm and remains at risk of suffering harm during future Ramadans and Sunnah Fasts.
b. Failure to Provide Religious Diet (Against Defendants BOP, TRUE, OLIVER, BERKEBILE, HALL, CRANK,
HENDERSON, and KNOX) 367. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein. 368. As wardens, chaplain, counselor, and employees of ADX, Defendants are “official[s]” of the United States and therefore fall under the definition of “government” provided in 42 U.S.C. § 2000bb-2(1). 369. As a devout Muslim, Mr. Ajaj is required to consume Halal foods that meet guidelines established by Islamic law. 370. Defendants CRANK, HENDERSON, and KNOX, under the direction and supervision of Defendants BOP, TRUE, OLIVER, BERKEBILE, and HALL, have refused for years to provide Mr. Ajaj with meals that comply with his religious dietary requirements. After Mr. Ajaj repeatedly told Trust Fund and Religious Services staff that both the Food Service meals and commissary meals violated his religious beliefs, all Defendants told Mr. Ajaj that they are not required to ensure his access to Halal meals with meat. None of these Defendants worked to provide Mr. Ajaj access to Halal meals with meat. This refusal substantially burdens Mr. Ajaj’s right to exercise his sincere religious belief. 371. In their responses to Mr. Ajaj’s grievances about access to Halal meals,
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Defendants have not provided any compelling government interest for the policy of refusing to accommodate the well-known mandate of Islamic law.
372. Defendants’ acts and omissions are the proximate cause of the deprivation of Mr. Ajaj’s rights under RFRA.
373. The acts or omissions of Defendants were conducted within the scope of their official duties and employment.
374. As a result of Defendants’ acts or omissions, Mr. Ajaj has suffered daily harm and remains at risk of suffering harm into the future.
c. Failure to Provide Meaningful Access to Imam (Against Defendants BOP, BERKEBILE, OLIVER, HALL, HENDERSON, and KNOX)
375. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein.
376. As a devout Muslim, Mr. Ajaj is required to consult with leaders of his religion and develop a more personal relationship with Allah through regular prayers and consultation with an Imam.
377. Defendants HENDERSON, KNOX, and HALL, under direction and supervision of Defendant BOP, OLIVER, and BERKEBILE, refused to allow Mr. Ajaj any access to an Imam. This refusal substantially burdens Mr. Ajaj’s right to exercise his sincere religious belief.
378. In their responses to Mr. Ajaj’s grievances about these matters, Defendants BOP, OLIVER, BERKEBILE, HALL, HENDERSON, and KNOX have not provided any compelling government interest for the policy of refusing to allow Mr. Ajaj any form of access to an Imam for months at a time.
379. Defendants’ acts and omissions are the proximate cause of the deprivation of Mr.
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Ajaj’s rights under RFRA. 380. The acts or omissions of Defendants were conducted within the scope of their
official duties and employment. 381. As a result of Defendants’ acts or omissions for several years, Mr. Ajaj has
suffered harm and remains at risk of suffering harm into the future. d. Failure to Accommodate Religiously Mandated Group Prayer
(Against Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX, and PARRY)
382. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein.
383. As a devout Muslim, Mr. Ajaj is obligated to perform prayer five times daily and participate in Jum’ah services.
384. Mr. Ajaj sincerely believes he will receive punishment from Allah should he not participate in group prayer and Jum’ah.
385. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX, and PARRY substantially burdened Mr. Ajaj’s practice of congregational prayer by forcing him to choose between disciplinary action and congregational prayers.
386. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX, and PARRY have not provided any legitimate governmental interest that would warrant burdening Mr. Ajaj’s religious practice by prohibiting him from participating in all congregational prayer.
387. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX, and PARRY’s affirmative decision not to accommodate Mr. Ajaj’s congregational prayers
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demonstrates malicious or callous indifference to Mr. Ajaj’s federally protected rights. 388. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX,
and PARRY’s acts and omissions are the proximate cause of the deprivation of Mr. Ajaj’s rights under RFRA.
389. The acts or omissions of Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX, and PARRY were conducted within the scope of their official duties and employment.
390. As a result of Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, KNOX, and PARRY’s acts or omissions for several years, Mr. Ajaj has suffered harm and remains at risk of suffering harm into the future.
THIRD CLAIM FOR RELIEF (Federal Tort Claims Act claim) (Against UNITED STATES OF AMERICA) 391. While at ADX in 2014, Mr. Ajaj was in the care and custody of Defendant UNITED STATES through its employees, Defendants CAMACHO, MCCOIC, BERKEBILE, HALL, and LAMB. 392. Defendant UNITED STATES, through its agency BOP, has a duty to provide for the care and well-being of the prisoners in its custody, including Mr. Ajaj. 393. Defendant BOP employs Defendants CAMACHO, MCCOIC, BERKEBILE, HALL, and LAMB, who act as agents for Defendant BOP. As agents of Defendant BOP, Defendants CAMACHO, MCCOIC, BERKEBILE, HALL, and LAMB also have a duty of care to provide for the well-being of the prisoners in Defendant BOP custody, including Mr. Ajaj. 394. Mr. Ajaj’s medical records establish Defendant BOP prescribed Mr. Ajaj
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medications to treat pain and depression. 395. Defendant UNITED STATES, through its agents, knew of Mr. Ajaj’s medical
conditions and need for prescription medications. 396. Despite this knowledge, Defendant UNITED STATES, through its agents,
breached its duty of care when it failed to provide Mr. Ajaj with his prescribed medications during Ramadan 2014 because of the arbitrarily set pill line times at the ADX.
397. Defendant UNITED STATES caused Mr. Ajaj to go without his prescribed medications for Ramadan 2014.
398. Defendant UNITED STATES caused Mr. Ajaj’s physical injuries, including severe pain, numbness, weakness, stiffness, severe night sweating, restlessness, deep depression, irritability, agitation, dizziness, mood and emotional problems, and other related symptoms caused by depriving Mr. Ajaj of his prescription medications.
399. As a direct and proximate result of the tortious acts and omissions of Defendant UNITED STATES, Mr. Ajaj suffered damages in an amount to be determined at trial.
FOURTH CLAIM FOR RELIEF (Fifth Amendment – Equal Protection Violation) (Against Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, PARRY,
and KNOX) 400. Plaintiff hereby incorporates all prior paragraphs of this Complaint as if fully set forth herein. 401. The Fifth Amendment to the United States Constitution protects the right to equal protection of the laws. 402. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, JOHNSON, have
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deprived, and continue to deprive, Mr. Ajaj of his right to equal protection of the law, by treating Mr. Ajaj differently from other prisoners in similarly situated religious groups.
403. Defendant BOP and TRUE have not provided Muslims at ADX with Halalcertified food through the regular menus available to prisoners, and have not provided Halal meats for years.
404. Defendants BOP and TRUE provide similarly situated Jewish inmates with Kosher food via the Common Fare diet and commissary.
405. Except for one visit from an Imam in September 2015, Defendants BOP and TRUE have not given Mr. Ajaj access to an Imam for over a year.
406. In 2013, on the rare occasions Mr. Ajaj was afforded the opportunity to meet with an Imam, Defendants BERKEBILE and HALL mandated that the Imam speak with him outside the double cell doors.
407. Defendants BOP and TRUE provide similarly situated Jewish, Catholic, Seventhday Adventist, and Christian prisoners with full time chaplains who meet with those prisoners on a regular basis.
408. Defendants BOP and TRUE permit similarly situated Jewish, Christian, Catholic, Seventh-day Adventist, and Native American prisoners to regularly meet with their respective religious leaders within their cells and for a meaningful amount of time.
409. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, KNOX, PARRY, and JOHNSON allow other prisoners to perform group prayers of their respective faiths, while expressly denying Muslims the same opportunity.
410. Defendants BOP, TRUE, PARRY, KNOX, BERKEBILE, HALL, JOHNSON,
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and OLIVER, permit similarly situated prisoners of other faiths to participate in group prayer without repercussions.
411. Defendants PARRY, KNOX, BERKEBILE, HALL, JOHNSON, and OLIVER maliciously deprived Mr. Ajaj of his right to equal protection of the laws when they threatened to punish him for participating in group prayer.
412. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, KNOX, PARRY and JOHNSON have deprived, and continue to deprive, Mr. Ajaj of his Fifth Amendment rights by treating him differently from similarly situated religious groups.
413. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, KNOX, PARRY, and JOHNSON’s disparate treatment of Mr. Ajaj is based on Mr. Ajaj’s religion and is motivated by unlawful discrimination.
414. Defendants BOP, BERKEBILE, OLIVER, TRUE, HALL, KNOX, PARRY, and JOHNSON’s discriminatory treatment is not reasonably related to legitimate penological interests.
VI. PRAYER FOR RELIEF Plaintiff requests that this Court enter judgment for him and against each of the Defendants, and award Plaintiff all relief allowed by law, including but not limited to the following:
(a) in order to accommodate Mr. Ajaj’s constitutional and statutory right to the free exercise of his sincere religious belief, an injunction against all Defendants in their official capacities requiring BOP staff at all facilities BOP places Mr. Ajaj in to: a. distribute Mr. Ajaj’s prescribed medication before dawn and after sunset during all religiously required fasting holidays;
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b. provide Mr. Ajaj with a Halal diet in accordance with his religious beliefs; c. provide Mr. Ajaj with meaningful access to an Imam on a weekly basis; and d. allow Mr. Ajaj to pray five times daily with at least one other Muslim inmate; (b) a declaration that Mr. Ajaj has been deprived by Defendants of his right to freely exercise his religion under the First Amendment to the Constitution; (c) a declaration that Mr. Ajaj has been deprived by Defendants of his right to freely exercise his religion under the Religious Freedom Restoration Act of 1993; (d) compensatory, nominal, and punitive damages against Defendants named in their individual capacities; (e) attorney’s fees and costs associated with this action, including expert witness fees, on all claims allowed by law; (f) any further relief that this Court deems just and proper. DATED: October 9, 2015
Respectfully submitted, STUDENT LAW OFFICE s/ Nicole Godfrey Nicole Godfrey s/ Ellen Giarratana Ellen Giarratana University of Denver College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Phone: 303.871.6574 Email: ngodfrey@law.du.edu Counsel for Plaintiff Ahmad Ajaj
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CERTIFICATE OF SERVICE I hereby certify that on October 9, 2015, I filed the foregoing Amended Complaint using the Court’s CM/ECF system, which will send notice of the filing via electronic mail to the following: Amy.Padden@usdoj.gov Michelle.bennett@usdoj.gov
s/ Nicole Godfrey Nicole Godfrey
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 Case 1:15-cv-00992-RBJ-KLM Document 97 Filed 08/30/16 USDC Colorado Page 1 of 64
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00992-RBJ-KLM
AHMAD AJAJ,
Plaintiff,
v.
UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; WARDEN BILL TRUE, in his official capacity; WARDEN JOHN OLIVER, in his individual capacity; WARDEN DAVID BERKEBILE, in his individual capacity; ASSOCIATE WARDEN TARA HALL, in her individual capacity; ASSOCIATE WARDEN CHRIS LAMB, in his official and individual capacity; PHYSICIAN ASSISTANT RONALD CAMACHO, in his individual capacity; MEDICAL STAFF SAMANTHA MCCOIC, in her individual capacity; MEDICAL STAFF K. MORROW, in her official and individual capacity; CHAPLAIN MICHAEL CASTLE, in his official and individual capacity; CHAPLAIN JASON HENDERSON, in his official and individual capacity; RELIGIOUS COUNSELOR GEORGE KNOX, in his individual capacity; INMATE TRUST FUND SUPERVISOR KENNETH CRANK, in his official and individual capacity; NURSE ROGER HUDDLESTON, in his official and individual capacity, and OFFICER D. PARRY, in his official and individual capacity,
Defendants. _____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Dismiss [#63]1 (the “Motion”), filed
by Defendant United States; on the Motion to Dismiss Official-Capacity Claims [#64],
1 “[#63]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court’s electronic case filing and management system (CM/ECF). This convention is used throughout this Recommendation.
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filed by all Defendants except for Defendant United States; and on the Motion to Dismiss Individual-Capacity Claims [#65], also filed by all Defendants except for Defendant United States. Plaintiff filed Responses [#70, #71, #72] in opposition to the Motions, and Defendants filed Replies [#78, #79, #80]. The Motions have been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). Order Referring Case [#82]. Oral argument on the Motions was heard on July 7, 2016. See [#94]. The Motions are thus ripe for review. Having reviewed the entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the United States’ Motion [#63] be GRANTED, that the Official Capacity Motion [#64] be GRANTED in part and DENIED in part, and that the Individual Capacity Motion [#65] be GRANTED in part and DENIED in part.
I. Summary of the Case At all times relevant to this lawsuit, Plaintiff has been a prisoner in the custody of the United State Bureau of Prisons (“BOP”) at the United States Penitentiary - Administrative Maximum in Florence, Colorado (“ADX”). Am. Compl. [#29] ¶ 9. Defendants in this matter consist of the United States of America, the BOP, and employees of the BOP. Id. ¶¶ 10-26. Plaintiff is an adherent of Sunni Islam, and, in connection with the following events, he asserts four claims relating to his religious beliefs: (1) First Amendment violation of right to free exercise of religion, asserted against Defendants BOP, Berkebile, Oliver, True, Hall, Lamb, Camacho, Morrow, Huddleston, Castle, Henderson, Knox, and Crank; (2) violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, asserted against Defendants BOP, Berkebile, Oliver, True, Hall, Lamb, Camacho, Morrow, McCoic,
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Huddleston, Castle, Crank, Henderson, Knox, and Parry; (3) a Federal Tort Claims Act (“FTCA”) claim, asserted against Defendant United States of America; and (4) Fifth Amendment violation of right to equal protection, asserted against Defendants BOP, Berkebile, Oliver, True, Hall, Parry, and Knox. Id. ¶¶ 317-414. A. Plaintiff’s Incarceration with the BOP2
Plaintiff has been in the custody of Defendant BOP since 1993, and from 1993-2001 Plaintiff was housed in high security prisons. Id. ¶ 27. On February 1, 2001, Plaintiff was transferred from a high security facility in Beaumont, Texas, to a medium security prison in Edgefield, South Carolina (“FCI-Edgefield”). Id. ¶ 28. On September 11, 2001, Defendant BOP placed Plaintiff in the Special Housing Unit (“SHU”) at FCI-Edgefield without notice and in the absence of any disciplinary infractions, where Plaintiff was housed alone. Id. ¶¶ 29-30. In September 2002, Plaintiff was transferred to ADX in Florence, Colorado, despite having no violent disciplinary infractions. Id. ¶¶ 31, 33. After spending eight years in solitary confinement in ADX, Plaintiff was transferred in January of 2010 to the United States Penitentiary - Marion (“USP-Marion”). Id. ¶ 35. In USP-Marion, Plaintiff was housed in the Communications Management Unit with other inmates, where he utilized the administrative remedy process often and helped other prisoners to file grievances. Id. ¶¶ 36-39. In May of 2012, Plaintiff was transferred back to ADX, allegedly because of his use of the grievance system, he believes. Id. ¶¶ 40-42. Since this transfer, Plaintiff has been housed in solitary confinement, and so ADX staff is responsible for delivering everything to Plaintiff’s cell, including daily meals and prescription medications. Id. ¶¶ 43-
2 All well-pled allegations from the complaint are accepted as true and viewed in the light
most favorable to the plaintiff. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015). -3-

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44. Given the conditions of his confinement, Plaintiff is at the mercy of ADX officials to observe many tenets of his religion. Id. ¶ 45. B. Plaintiff’s Medications
Plaintiff has a history of chronic health problems, including chronic fatigue syndrome, anxiety, severe spinal canal stenosis, fiber peripheral neuropathy, and sciatica, which have caused him to suffer immense back pain and numbness in his extremities. Id. ¶ 48. Plaintiff has been prescribed a variety of medications by BOP physicians, including Neurontin, which helps control pain, and Bupropion, which is an antidepressant. Id. ¶ 49. If Plaintiff does not take Neurontin daily, he experiences severe pain in his spine and legs, numbness in his hands and feet, cramping, weakness, and stiffness. Id. ¶ 51. If Plaintiff does not take Bupropion daily, he suffers from worsened depression, irritability, agitation, dizziness, mood and emotional problems, severe night sweats, and restlessness. Id. ¶ 50. Plaintiff can take his prescription medications before dawn and after sunset without suffering adverse health effects. Id. ¶ 52. Defendants K. Morrow (“Morrow”) (a member of the medical staff at ADX), Samantha McCoic (“McCoic”) (a member of the medical staff at ADX in 2013 and 2014), Ronald Camacho (“Camacho”) (a physician assistant at ADX in 2013 and part of 2014), and Roger Huddleston (“Huddleston”) (a member of the medical staff at ADX) have been responsible for delivering Neurontin and Bupropion to Plaintiff’s cell every day, including through 2014. Id. ¶¶ 20-23, 53, 57. Plaintiff alleges that Defendants David Berkebile (“Berkebile”) (Warden of ADX in 2013 and 2014), Tara Hall (“Hall”) (Associate Warden of ADX in 2013 and 2014), and Chris Lamb (“Lamb”) (Associate Warden at the Florence Correctional Complex who was responsible for the Health Services Department at ADX) were aware of Plaintiff’s medical conditions and need for prescription
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medication to relieve his pain and depression. Id. ¶¶ 14-16, 55-56. C. Religious Holidays
The BOP recognizes that Plaintiff is an active participant in the Islamic faith. Id. ¶ 61. The Five Pillars of Islam are acts that observant Muslims perform and are the basic foundations of the Islamic religion. Id. ¶ 63. Fasting is one of the Five Pillars, and Ramadan is a holy month during which fasting is required. Id. ¶¶ 64-65. In order to observe the fast, Muslims must not ingest any medications from dawn until sunset. Id. ¶ 66. As an observant Muslim, Plaintiff feels as though he must fast during Ramadan. Id. ¶ 67. To observe this fast he must receive his medications outside of fasting hours. Id. ¶ 68.
Another Pillar of Islam is Hajj, a religiously mandated pilgrimage to Mecca. Id. ¶ 69. Plaintiff is serving a sentence of 114 years and will likely never be able to make this pilgrimage. Id. ¶ 70. Plaintiff believes that because he cannot participate in the pilgrimage, he should participate in additional fasts called Sunnah fasts.3 Id. ¶ 71. These fasts take place Mondays and Thursdays and a few other holy days. Id. ¶ 74. Plaintiff has made several requests to Defendants BOP, Berkebile, Hall, Lamb, Oliver, Camacho, McCoic, Morrow, and Huddleston to deliver his medications before dawn and after sunset during Ramadan and the Sunnah fasts. Id. ¶ 76. Plaintiff also requests that Defendant BOP deliver meals before dawn and after sunset during Sunnah fasts. Id. ¶ 77. D. Claims of Religious Freedom Violations
a. Fasting During Ramadan and Sunnah Fasts Prisoners who consume medications must do so in the presence of the medical
3 For purposes of this Recommendation, the Court uses the phrase “Sunnah fasts” to refer to all fasts not occurring as part of Ramadan.
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personnel staff member who delivers them. Id. ¶ 80. When Plaintiff was first transferred to ADX in 2012, the staff delivered his medications to him before dawn and after sunset during Ramadan. Id. ¶ 91. However, in 2013 and 2014, ADX staff refused to deliver Plaintiff’s pills as they had during Ramadan in 2012. Id. ¶ 92. Plaintiff spent two years pursuing administrative remedies in an attempt to observe Ramadan in accordance with his religious faith. Id. ¶ 93. Plaintiff explained to Defendants BOP, Berkebile, Oliver, True, Hall, Lamb, Camacho, Morrow, McCoic, Castle, and Huddleston that their refusal to distribute his medications before dawn and after sunset during Ramadan and the Sunnah Fasts disrespects the Islamic faith and deprives him of his right to partake in these fasts. Id. ¶ 96. Plaintiff has also told Defendant BOP in writing that its refusal to deliver meals before dawn and after sunset during Sunnah Fasts deprives him of his right to participate in his religion. Id. ¶ 97.
In May 2015, Plaintiff filled this lawsuit in anticipation of the upcoming Ramadan, after Defendants told him they would not accommodate his fasting, again. Id. ¶ 158. After filing this lawsuit, Defendants amended their written rules and now require ADX staff to accommodate practicing Muslims during Ramadan with respect to the pill line. Id. ¶ 160. Thus, during Ramadan 2015, Defendants BOP, Oliver, Lamb, Morrow, Huddleston, and Castle delivered pills after fasting hours. Id. ¶ 167.
Plaintiff also notes that “for years” the Defendants have refused to accommodate Plaintiff’s wish to participate in Sunnah Fasts. Id. ¶ 176. Defendants BOP and True have refused to provided Halal food before and after sunset. Id. ¶ 179.
b. Availability of Halal Food
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Islamic principles require observant Muslims to consume only Halal food, id. ¶ 183, which means meat that has been slaughtered according to Islamic dietary laws. Id. ¶ 186. Halal food must have all Halal ingredients or it is considered contaminated. Id. ¶ 187.
The BOP provides Plaintiff with individually wrapped meals from an outside vendor every day, and Plaintiff may supplement that with food from the commissary. Id. ¶ 189. ADX offers four meal options: a regular diet, a no-pork diet, a no-meat diet, and a “Common Fare” diet, which is a Kosher diet. Id. ¶ 190. None of these diets conforms perfectly with Halal food, but Plaintiff has chosen the no-meat diet because it is the closest. Id. ¶¶ 191-95. Plaintiff has repeatedly asked the ADX staff to provide him with Halal foods and has filed several grievances about the issue. Id. ¶¶ 198-99. ADX staff told Plaintiff that there is no requirement to provide Halal food, but that if he wanted a Halal diet he would have to buy it from the commissary. Id. ¶¶ 201-04. Plaintiff feels as though he must daily make a decision between his religion observance and his need to eat. Id. ¶ 205.
The BOP’s Trust Fund Department runs the prison commissary, which provides inmates with the opportunity to purchase articles or services not issued or delivered as basic care by the institution. Id. ¶ 206. Prisoners may be able to supplement commissary offerings through a Special Purchase Order (“SPO”) for certain approved items. Id. ¶ 207. The BOP limits how often SPO items can be purchased and in what quantities. Id. ¶ 227. Inmates are expected to pay for SPO religious items in addition to paying restitution, purchasing medicine, hygiene products, legal writing and correspondence materials, and paying for phone calls. Id. ¶ 228. There are four vegetarian Halal-certified meals available to purchase through SPO. Id. ¶ 209. Halal meats are not regularly offered through the commissary. Id. ¶ 210. Since 2011, Plaintiff has repeatedly requested that Halal meals
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with meat be offered in the commissary and has filed at least thirty grievances and appeals on this issue. Id. ¶¶ 211-212. Defendants Hall, Knox, Henderson, and Crank have all had interactions with Plaintiff regarding the lack of Halal meats in the commissary, but each either ignored Plaintiff or told him to talk to someone else about the issue. Id. ¶¶ 213-218.
c. Access to an Imam Islamic law mandates regular consultation with an Imam to ensure compliance with religious values in daily life. Id. ¶ 244. All pastoral visits at ADX must be coordinated and approved by ADX officials. Id. ¶ 247. More than eighty people at ADX are Muslim and the Imam visits four times a month and must meet with any Muslim who requests him. Id. ¶¶ 254-255. At the beginning of 2013, the BOP contracted a part-time Imam who visited Plaintiff no more than once a month. Id. ¶ 260. Prayer was not allowed during these visits, and Plaintiff often had less than ten minutes of spiritual guidance with the Imam. Id. ¶¶ 261-264. During the visits in 2013, Plaintiff was required to participate through two prison doors, one of which was solid steel. Id. ¶ 265. By the end of 2013, Plaintiff had had no interactions with an Imam for eight months. Id. ¶ 270. From August 2014 to September 2015, Defendants provided Plaintiff no access to an Imam. Id. ¶ 271. Plaintiff also has repeatedly asked for access to an Imam in ways which might be more convenient for the prison, such as through video conferencing or by telephone, but without success. Id. ¶ 278. d. Congregational Prayer Plaintiff believes that Allah punishes those who fail to participate in congregational prayers and rewards those who do. Id. ¶ 296. Every Friday between noon and midafternoon prayer, Muslims are obligated to partake in congregational prayer. Id. ¶ 298. Each prayer takes approximately five to ten minutes to complete. Id. ¶ 297. Plaintiff has
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requested to pray with other Muslim prisoners during periods when prisoners may interact with one another. Id. ¶ 302. However, Muslims in ADX are not permitted any opportunity to perform congregate prayers. Id. ¶ 304. Defendants BOP, Berkebile, Oliver, Hall, Knox, and Parry have threatened Plaintiff and other Muslims with disciplinary action if they perform congregate prayers with other prisoners. Id. ¶ 305. Defendant Parry mocks the Islamic ritual of congregate prayer and puts Muslim prisoners in segregation for attempting it. Id. ¶¶ 308-309. Defendant Knox told Plaintiff that group prayer was not allowed for security reasons. Id. ¶ 312. However, congregational prayers of other religious faiths take place outside of the cells in Plaintiff’s living unit. Id. ¶ 314. Plaintiff feels as though Defendants’ prohibition of congregate prayers constrains his ability to engage in a central tenet of Islam. Id. ¶ 316.
As a result of these circumstances, Plaintiff seeks damages against the individual Defendants and an injunction requiring BOP staff at all facilities into which BOP places Plaintiff to (1) distribute Plaintiff’s prescribed medication before dawn and after sunset during all religiously required fasting holidays, (2) provide Plaintiff with a Halal diet in accordance with his religious beliefs, (3) provide Plaintiff with meaningful access to an Imam on a weekly basis, and (4) allow Plaintiff to pray five times daily with at least one other Muslim inmate. Am. Compl. [#29] at 58-59.
II. Standard of Review A. Federal Rule of Civil Procedure 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction,” the Court must have a statutory basis to exercise its
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jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id. B. Federal Rule of Civil Procedure 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
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which relief can be granted”). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a factual allegation has been stated, “but it has not show[n][ ]that the pleader is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 552 U.S. at 679 (second
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brackets added; citation and internal quotation marks omitted). III. Analysis
A. The United States’ Motion Plaintiff asserts one claim against the United States, i.e., Claim Three under the
Federal Tort Claims Act (“FTCA”). See Am. Compl. [#29] ¶¶ 391-99. In this claim, Plaintiff asserts that Defendants Camacho, McCoic, Berkebile, Hall, and Lamb are employees and agents of the BOP and, therefore, of the United States. Id. ¶¶ 391-93. Plaintiff states that the United States has a duty of care to provide for the well-being of the prisoners in Defendant BOP custody, including Plaintiff. Id. ¶ 392. Plaintiff argues that this duty was breached when Defendants failed to provide Plaintiff with his prescribed medications during Ramadan 2014 “because of the arbitrarily set pill line times at the ADX.” Id. ¶¶ 393-97. Plaintiff states that the lack of medication caused Plaintiff physical injury, including severe pain, numbness, weakness, stiffness, severe night sweating, restlessness, deep depression, irritability, agitation, dizziness, mood and emotional problems, and other related symptoms, and as a result Plaintiff now seeks damages. Id. ¶¶ 398-99.
The United States presents three arguments in support of its request for dismissal of this claim. See Motion [#63] at 5-13; Reply [#78] at 1-5. However, the Court need only address one, i.e., whether Plaintiff properly exhausted his FTCA claim. The time line of the events underlying the assertion of this claim is crucial to the adjudication of Defendants’ argument; thefore, the Court begins with the relevant chronology.
Plaintiff initiated his administrative claim on July 28, 2014, by filing a Form 95 with the BOP “for the alleged negligence that occurred during Ramadan 2014.” Response [#70] at 11 (citing Am. Compl. [#29] ¶ 153). On January 21, 2015, the BOP denied Plaintiff’s
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claim, and Plaintiff timely requested reconsideration of this denial. Response [#70] at 11 (citing Am. Compl. [#29] ¶ 155-56). On May 11, 2015, Plaintiff filed the present lawsuit “seeking solely injunctive relief for the fast-approaching Ramadan, which was set to commence on June 17, 2015.” Response [#70] at 11 (citing Compl. [#1]). On July 31, 2015, the BOP affirmed its denial of Plaintiff’s administrative claim and informed Plaintiff that he had six months to file suit in district court. Response [#70] at 11 (citing Am. Compl. [#29] ¶ 157). On October 9, 2015, Plaintiff added the present FTCA claim to this lawsuit. See Am. Compl. [#29] ¶¶ 391-99.
The parties agree that a plaintiff may not assert an FTCA claim before exhausting his administrative remedies. See Motion [#63] at 11-12 (citing Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999)); Response [#70] at 10 (citing same). They also agree that a plaintiff may not attempt to cure an exhaustion defect by simply filing an amended complaint.4 Id. However, the parties disagree on two issues, which Defendants succinctly state as follows: “(1) whether a plaintiff can, under any circumstances, file an amendment to add an FTCA claim when that claim was not exhausted when the lawsuit was filed, and (2) whether, under the facts here, the FTCA claim ‘relates back’ to the initial filing.” Reply [#78] at 4. The Court need not reach the first issue because, assuming that Plaintiff may file an amendment to add an FTCA claim when that claim was not exhausted at the time
4 The Tenth Circuit Court of Appeals recently discussed this issue in Estate of Vera Cummings v. United States, __ F. App’x __, __, 2016 WL 3251897, at *3-4 (10th Cir. June 7, 2016), which stated that Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999), “affirmed the general rule that new filings in an existing suit cannot correct the failure to exhaust administrative requirements,” but noting the narrow exception to the rule where “the court administratively closed the case, the plaintiff filed an amended complaint, and the government agrees to treat it as a new action.”
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of filing of the lawsuit,5 the Court finds that Plaintiff’s FTCA claim relates back to the initial Complaint [#1], and thus is improperly asserted here. See, e.g., Ajaj v. Fed. Bureau of Prisons, No. 08-cv-02006-RBJ-MJW, 2012 WL 1020487, at *4 (D. Colo. Mar. 27, 2012) (“In the present case, the question is whether Mr. Ajaj’s Second Amended Complaint constitutes a new action because it is the first time Mr. Ajaj alleged tort claims under the FTCA, thus making his administrative exhaustion timely.”).
If Plaintiff’s FTCA claim relates back to the original Complaint [#1], it should be dismissed based on a failure to exhaust. Kennedy v. Finley, No. 11-cv-00967-REB-KMT, 2012 WL 2564796, at *3 (D. Colo. July 2, 2012), rev’d in part on other grounds by Kennedy v. Finley, 552 F. App’x 787 (10th Cir. 2014). If the claim does not relate back and can be viewed as a separate and distinct “new” claim, then Plaintiff properly exhausted his administrative remedies. See Ajaj, 2012 WL 1020487, at *4. Pursuant to Fed. R. Civ. P. 15(c)(1)(B), “[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading . . . .”
Plaintiff asserts that he filed this lawsuit in May 2015 “seeking solely injunctive relief for the fast-approaching Ramadan, which was set to commence on June 17, 2015.” Response [#70] at 11. He states that “[t]he relief he was seeking in the original complaint
5 The Court notes that there is plenty of case law indicating that, under limited circumstances, a plaintiff may file an amendment to add an FTCA claim when that claim was not exhausted when the lawsuit was filed, although Defendants seem to argue that the case law authority is incorrect when compared to the FTCA’s statutory language. See Reply [#78] at 4-5. However, as noted, the Court need not adjudicate that argument at this time.
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was strictly prospective (i.e., related to Ramadan 2015 only), without any mention of past conduct of BOP officials.” Id. Then, on October 9, 2015, Plaintiff “added an FTCA claim to his pending lawsuit, along with other claims seeking retrospective relief.” Id. Plaintiff argues that “[b]ecause [he] added a claim to his original complaint, and was not curing a jurisdictional deficiency, his FTCA claim in the amended complaint survives an exhaustion challenge.” Id.
The Court finds that Plaintiff’s understanding of Rule 15(c)(1)(B) is too narrow. The United States Supreme Court has held that “relation back depends on the existence of a common ‘core of operative facts’ uniting the original and newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005). In other words, the issue is not whether the relief requested is similar, as Plaintiff appears to argue, but rather whether the claims are tied to a common core of operative facts. The entire basis for Plaintiff’s lawsuit as stated in the original Complaint is Defendants’ conduct in 2013 and 2014 of only giving Plaintiff his medication during Ramadan during the hours when he is required to fast. See, e.g., [#1] ¶¶ 2, 21, 25-26. This core of operative facts are identical to the facts underlying the FTCA claim in the present Amended Complaint. See, e.g., [#29] ¶ 396 (stating that the United States “breached its duty of care when it failed to provide [Plaintiff] with his prescribed medications during Ramadan 2014 because of the arbitrarily set pill line times at the ADX”). Because the original claims in the Complaint [#1] and the newly asserted FTCA claim in the Amended Complaint [#29] are united by a common core of operative facts, the FTCA claim relates back to the original Complaint [#1] pursuant to Rule 15(c)(1)(B). See Mayle, 545 U.S. at 659. Because the FTCA claim relates back to the original Complaint [#1], it must
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be dismissed based on a failure to exhaust at the time this lawsuit was filed.6 See Kennedy, 2012 WL 2564796, at *3.
Accordingly, the Court finds that Plaintiff did not properly exhaust his administrative remedies prior to bringing suit, and therefore the Court recommends that Claim Three asserted pursuant to the FTCA be dismissed without prejudice. See id. (dismissing unexhausted FTCA claim without prejudice). B. Motion to Dismiss Official Capacity Claims
In the Amended Complaint, Plaintiff seeks declaratory and injunctive relief against the BOP and various individuals in their official capacities. Am. Compl. [#29] at 58-59.
1. Individuals In the Amended Complaint, Plaintiff seeks only non-monetary relief from the individuals in their official capacities and only monetary relief from the individuals in their individual capacities. [#29] at 58-59. In a Response, however, Plaintiff voluntary dismisses all of the individual Defendants in their official capacities: “Given Defendants’ stated position that Defendant BOP is the proper defendant to provide Mr. Ajaj the injunctive relief he seeks, Mr. Ajaj voluntarily dismisses the official capacity claims as asserted against all Defendants except for Defendant BOP.” [#71] at 4 n.4. Unfortunately, despite the fact that this is a fully-lawyered case, it is unclear precisely which Defendants are sued in their official capacities. According to the caption of the Amended Complaint, Defendant True is sued in his official capacity only, and Defendants
6 When an FTCA claim is procedurally barred from being asserted in the same lawsuit as other claims arising from the same incident, a plaintiff may file a separate lawsuit asserting the FTCA claim once the procedural barriers are removed. See Kennedy, 2012 WL 2564796, at *3 n.4.
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Lamb, Morrow, Castle, Henderson, Crank, Huddleston, and Parry are sued in both capacities. [#29] at 1. However, under the description of the parties, Defendant True is sued in his official capacity only, Defendant Huddleston is sued in both capacities, Defendant Parry is not designated as being sued in either capacity, and all other Defendants are explicitly sued in only their individual capacities. Id. ¶¶ 12-26. Regardless, for purposes of resolving the Motions, and based on Plaintiff’s voluntary dismissal of all official capacity claims, the Court construes the Amended Complaint as asserting official capacity claims against Defendants True, Lamb, Morrow, Castle, Henderson, Knox, Crank, Huddleston, and Parry.
Accordingly, the Court recommends that Claims One, Two, and Four be dismissed to the extent they seek relief against Defendants True, Lamb, Morrow, Castle, Henderson, Knox, Crank, Huddleston, and Parry in their official capacities. Because Defendant True is sued only in his official capacity, see Am. Compl. [#29] ¶ 12, the Court further recommends that he be dismissed from this lawsuit, as no claims remain against him.
2. The BOP Plaintiff seeks only non-monetary relief against Defendant BOP. Am. Compl. [#29] at 58-59. Specifically, he seeks declaratory relief and an injunction requiring BOP staff at all facilities into which BOP places Plaintiff to (1) distribute Plaintiff’s prescribed medication before dawn and after sunset during all religiously required fasting holidays, (2) provide Plaintiff with a Halal diet in accordance with his religious beliefs, (3) provide Plaintiff with meaningful access to an Imam on a weekly basis, and (4) allow Plaintiff to pray five times daily with at least one other Muslim inmate. Am. Compl. [#29] at 58-59. Plaintiff’s First
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Amendment claim encompasses only the first three requests for injunctive relief, while the RFRA claim encompasses all four requests. Id. ¶¶ 317-90. Plaintiff’s Fifth Amendment claim encompasses only the last three requests. Id. ¶¶ 403-12.
a. Mootness of Medication Administration Request Defendant argues that Plaintiff’s request for an injunction is moot to the extent he seeks to require BOP staff to distribute Plaintiff’s prescribed medication before dawn and after sunset during all religiously required fasting holidays. Motion [#64] at 9-11; Reply [#80] at 1-2. An “actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Brown v. Buhman, 822 F. 3d 1151, 1165 (10th Cir. 2016) (quoting Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013)). “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Brown, 822 F. 3d at 1165 (quoting Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)). Constitutional mootness deprives federal courts of jurisdiction. Brown, 822 F. 3d at 1165 (citing Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1336 (2013); Schell v. OXY USA, Inc., 814 F.3d 1107, 1114 (10th Cir. 2016)). See also Brown, 822 F. 3d at 1165 n.15 (noting that prudential mootness is discretionary). A “suit becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Brown, 822 F. 3d at 1165 (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)). “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’
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particular legal rights.” Brown, 822 F. 3d at 1165 (quoting Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013)). “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Brown, 822 F. 3d at 1165-66 (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)). “Put another way, a case becomes moot when a plaintiff no longer suffers actual injury that can be redressed by a favorable judicial decision.” Brown, 822 F. 3d at 1166 (quoting Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)).
Plaintiff argues that one of the exceptions to the mootness doctrine applies here, i.e., the exception provided for the “voluntary cessation” of the defendants’ conduct. Response [#71] at 9-12; see Already, 133 S. Ct. at 727. “[V]oluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). “This rule is designed to prevent gamesmanship.” Brown, 822 F. 3d at 1166. If voluntary cessation always mooted a case, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Id. (quoting Already, 133 S. Ct. at 727). The voluntary cessation rule “traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Brown, 822 F. 3d at 1166 (quoting City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). Voluntary cessation must therefore be examined “with a critical eye,” so that defendants do not manipulate jurisdiction to insulate their conduct from judicial review. Brown, 822 F. 3d at 1166 (quoting Knox, 132 S. Ct. at 2287). “A defendant’s voluntary cessation may
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moot a case, however, if the defendant carries ‘the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’” Brown, 822 F. 3d at 1166-67 (quoting Already, 133 S. Ct. at 727; citing Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007) (describing this burden as “heavy”); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (describing this burden as “stringent”)).
The Court first notes that Plaintiff’s response to Defendants’ mootness argument discusses the BOP’s alleged failure to deliver both medication and food to him before dawn and after sunset during religiously required fasting days. See Response [#71] at 8-9. Defendants argue that “the Court should disregard those assertions [regarding meal delivery] because there is no such claim in the Amended Complaint . . . .” Reply [#80] at 2 n.4. The Court agrees with Defendants’ statement. First, the RFRA claim exclusively discusses fasting issues in connection with Plaintiff’s medication. See Am. Compl. [#29] ¶¶ 355-66. Second, while Plaintiff does briefly mention “meals” in connection with his First Amendment claim, see id. ¶¶ 328, 330, the thrust of this claim is clearly the timing of his medication intake. See id. ¶¶ 317-33. These conclusions are conclusively bolstered, however, by Plaintiff’s Prayer for Relief, which only seeks an order requiring the BOP to “distribute [Plaintiff’s] prescribed medication before dawn and after sunset during all religiously required fasting holidays.” See id. at 58. Plaintiff does not seek injunctive relief in connection with the timing of his meals. See generally id. at 58-59. Accordingly, any argument by Plaintiff in the Response [#71] regarding the timing of meals is inapplicable to the issues of the case.
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Plaintiff directs the Court’s attention to Ramadan and to the Sunnah Fasts. As discussed
below, the Court finds that the relief he requests in connection with Ramadan is moot, while
the relief he requests in connection with the Sunnah Fasts is not moot.
Defendant BOP argues that it has already provided the relief Plaintiff seeks in
connection with the timing of the pill line during Ramadan, i.e., that it now distributes
medication before dawn and after sunset during Ramadan. Motion [#64] at 10-11. In
support, Defendant provides the Declaration of Clay C. Cook,7 which first notes that on
June 5, 2015, the Warden of ADX signed a memorandum detailing new procedures to be
implemented during Ramadan. [#26-1] ¶ 4 (citing Attach. 1 [#26-2]). This memorandum
states:
During Ramadan (approximately June 18 - July 17, 2015), pill line times will be adjusted to accommodate Ramadan participants at the ADX. For ADX Ramadan participants, pill line will be accommodated before 4:00 a.m. (morning pill line) and after 8:30 p.m. (evening pill line). Ramadan participants may elect to participate in the earlier pill line or continue to participate in normal pill line times (approximately 6 a.m. (morning pill line) and 6 p.m. (evening pill line)). Medical providers may determine that ADX Ramadan participants with medical conditions that may be exacerbated by the above-referenced adjusted pill line schedules will remain on the normal pill line schedule. In the event of an institution emergency, early pill line may be delayed.
Id. Plaintiff elected to participate in the adjusted times and, at the conclusion of Ramadan
2015, wrote a letter to the Warden of ADX expressing his gratitude “for running the holy
7 Normally, when considering a motion to dismiss, the Court must disregard facts supported by documents other than the complaint unless the Court first converts the motion to dismiss into a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). However, the Court may consider documents outside of the complaint on a motion to dismiss when an issue of subject matter jurisdiction arises. Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000). Mootness is an issue of subject matter jurisdiction. See Decker, 133 S. Ct. at 1336. Therefore, the Court may examine the evidence submitted by the parties in connection with this issue.
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month of Ramadan Quranic programs prefect [sic] and in a total respect for our fasting of the month of Ramadan.” Decl. of Cook [#26-1] ¶¶ 5-6 (citing Attach. 2 [#26-3]). Shortly thereafter, on August 28, 2015, the Warden issued a revised complex supplement8 regarding inmate religious beliefs and practices, which memorialized the procedures outlined in the June 5, 2015 ADX Ramadan Pill Line 2015 Memorandum and made them a part of the updated complex supplement for Ramadan each year at ADX.9 Decl. of Cook [#26-1] ¶ 7 (citing Attach. 3 [#26-4] at 12).
Especially in the context of government enforcement, a defendant’s burden of showing that the alleged wrongful behavior is not reasonably expected to recur “is not insurmountable.” Brown, 822 F. 3d at 1167. “In practice, [this] heavy burden frequently has not prevented governmental officials from discontinuing challenged practices and mooting a case.” Id. (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010)). “Most cases that deny mootness following government officials’ voluntary cessation ‘rely on clear showings of reluctant submission [by governmental actors] and a desire to return to the old ways.’” Brown,822 F. 3d at 1167 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1117).
In the context of government enforcement, the Court does not “require some physical or logical impossibility that the challenged policy will be reenacted absent evidence
8 “Upon execution, a complex supplement provides further guidance to staff within the institutions of a federal correctional complex regarding implementing Federal Bureau of Prisons regulations and national policy.” Decl. of Cook [#26-1] ¶ 8.
9 On July 6, 2016, the BOP filed a Supplement [#92] to its Motion [#64], providing evidence that the BOP “continued to accommodate Plaintiff’s request during the 2016 Ramadan [which started June 6, 2016, and ended July 5, 2016] by delivering his morning pills around 3:45 a.m. or 4:00 a.m. and his evening pills at 8:30 p.m. or later.” [#92] ¶ 1 (citing Ex. A [#92-1]).
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that the voluntary cessation is a sham for continuing possibly unlawful conduct.” Brown, 822 F. 3d at 1167 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1117-18 (quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009)). In general, selfcorrection by the government “provides a secure foundation for mootness so long as it seems genuine.” Brown, 822 F. 3d at 1167-68 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1117).
When a party goes beyond the allegations contained in the complaint and challenges the facts upon which subject matter jurisdiction depends, as the BOP does here by arguing that Plaintiff’s claim is moot, the Court may not presume the truthfulness of the complaint’s factual allegations but must rely on evidence. Holt, 46 F. 3d at 1003. Plaintiff here provided no evidence, and did not seek an evidentiary hearing, to demonstrate “clear showings of reluctant submission [by governmental actors] and a desire to return to the old ways.” Brown, 822 F. 3d at 1167 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1117). Mere allegations in the Amended Complaint are insufficient to oppose the BOP’s evidence regarding mootness and subject matter jurisdiction. See Holt, 46 F.3d at 1003; Am. Compl. [#29] ¶¶ 168-70. Because there is no evidence before the Court suggesting that the BOP’s self-correction may not be genuine, the Court finds that the portions of Plaintiff’s First Amendment and RFRA claims which seek relief pertaining to the timing of medication during Ramadan are moot.
However, the Court reaches the opposite conclusion with respect to the Sunnah Fasts. See generally Am. Compl. [#29] ¶¶ 171-82. First, neither party submits evidence in support of its position regarding whether this aspect of Plaintiff’s First Amendment and RFRA claims is moot. See Holt, 46 F. 3d at 1003. Second, even if the Court were to rely
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on the allegations in the Amended Complaint, the requested relief is not clearly moot. Plaintiff alleges that the Sunnah Fasts are to be observed “on Mondays and Thursdays; six days during the month of Shawwal (the tenth month of the Islamic calendar); the day of Arafa, which is the ninth day of the month of Zul-Hijjah; Ashura, which is the tenth day of the Islamic month of Muharram; and during most of the month of Sha’ban.” Am. Compl. [#29] ¶ 74. Plaintiff further alleges that “[t]he Sunnah recommends fasting during certain holy days throughout the Islamic calendar year, particularly when Muslims physically cannot go for Hajj,” as Plaintiff cannot do as an inmate of ADX.10 Id. ¶ 172. Finally, Plaintiff alleges that after the Sunnah Fasting month of Shawwal concluded in 2015, the BOP began giving Plaintiff his medication around 3:00 a.m., which means that they only began accommodating Plaintiff’s request after the required fasting was concluded. Id. ¶¶ 177, 181. These allegations simply do not demonstrate that Plaintiff has received, or will continue to receive, the full injunctive relief he seeks in connection with the distribution of medication on all Sunnah Fasting days. Thus, the Court finds that this portion of Plaintiff’s First Amendment and RFRA claims is not moot.
Accordingly, the Court recommends that the portions of Plaintiff’s First Amendment and RFRA claims seeking relief against Defendant BOP in connection with the timing of medication distribution during Ramadan be dismissed without prejudice. See Brown, 822 F. 3d at 1179 (holding that dismissal on the basis of mootness must be without
10 To the extent the BOP may be arguing that the issue of medication timing on Sunnah fast days is moot because these fasts are merely “recommend[ed],” this argument is without merit, because a prisoner’s genuine and sincere religious belief is protected even if the belief is not doctrinally required by the prisoner’s religion. See Williams v. Wilkinson, __ F. App’x __, __, No. 15-7022, 2016 WL 1459529, at *10 (10th Cir. Apr. 14, 2016).
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prejudice). b. First Amendment
The remainder of Plaintiff’s First Amendment claim concerns the timing of medication distribution during the Sunnah Fasts, his request for a Halal diet which accords with his religious beliefs, and his request for meaningful access to an Imam on a weekly basis. Am. Compl. [#29] ¶¶ 317-54.
“Even though they are incarcerated, prisoners retain fundamental constitutional rights. These rights include the reasonable opportunity to pursue one’s religion as guaranteed by the free exercise clause of the First Amendment.” Williams v. Wilkinson, __ F. App’x __, __, No. 15-7022, 2016 WL 1459529, at *9 (10th Cir. Apr. 14, 2016) (quoting Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1209 (10th Cir.1999)). “[I]n order to allege a constitutional violation based on a free exercise claim, a prisoner-plaintiff must survive a two-step inquiry. First, the prisoner-plaintiff must [allege] that a prison regulation substantially burdened sincerely-held religious beliefs.” Williams, 2016 WL 1459529, at *9 (quoting Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)). With respect to the second inquiry in a free exercise claim, “prison-official defendants may identify the legitimate penological interests that justified the impinging conduct,” and the court must apply a balancing test to determine the reasonableness of the regulation. Williams, 2016 WL 1459529, at *9 (quoting Kay, 500 F.3d at 1218-19).
The Tenth Circuit Court of Appeals stated in Williams v. Wilkinson that “only the first of these inquiries is relevant at the motion-to-dismiss stage.” 2016 WL 1459529, at *9 (citing Kay, 500 F.3d at 1219). However, the Tenth Circuit did not explicitly state in Kay v. Bemis, the published decision cited by Williams, that only the first inquiry is relevant at the
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motion-to-dismiss stage. See 500 F.3d at 1219. Other published case law from the Tenth Circuit indicates that the second inquiry is relevant at the motion-to-dismiss stage. See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (stating that the plaintiff “must include sufficient facts to indicate the plausibility that the actions of which he complains were not reasonably related to legitimate penological interests”); Al-Owhali v. Holder, 687 F.3d 1236, 1241 (10th Cir. 2012) (“In order to survive the government’s 12(b)(6) motion, [the plaintiff] was not required to substantively rebut the government’s justifications for the new restrictions. Rather, he simply needed to plead some plausible facts supporting his claim that the ban on communicating with his nieces and nephews did not serve the purpose of preventing future terrorist activity. Looking to his pleadings, the only supporting fact Al–Owhali offers is that he did not violate any [Special Administrative Measures] before the new restrictions were imposed. This assertion fails to address whether the restriction was supported by a rational penal interest. Accordingly, dismissal of this claim was appropriate.” (internal citations omitted)). Thus, the Court relies on the published opinions of Gee v. Pacheco and Al-Owhali v. Holder to hold that the second inquiry is also relevant at the motion-to-dismiss stage, despite the Tenth Circuit’s recent interpretation of Kay in the unpublished Williams case.
Regardless, the pleading burden on Plaintiff with respect to the second inquiry is not as heavy as Defendants would have the Court believe. To meet the second inquiry at the motion-to-dismiss stage, Plaintiff need only provide allegations plausibly demonstrating that the prison’s restrictions may not be supported by a rational penal interest. See Al-Owhali, 687 F.3d at 1241. Plaintiff need not “identify every potential legitimate interest and plead against it.” Gee, 627 F.3d at 1188. The Tenth Circuit has never intended “that pro se
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prisoners must plead, exhaustively, in the negative in order to state a claim.” Id. Rather, “[i]t is sufficient that [a prisoner] plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.” Id.
Returning to the first inquiry, for purposes of evaluating a First Amendment claim pursuant to Fed. R. Civ. P. 12(b)(6), Plaintiff has sufficiently stated a violation of his right to free exercise of religion if he alleges that Defendants substantially burdened the exercise of his sincerely-held religious belief. Williams, 2016 WL 1459529, at *10 (citing Kay, 500 F.3d at 1219). The BOP does not dispute the sincerity of Plaintiff’s beliefs for purposes of resolving the Motion. See Motion [#64] at 11 n.6. They contend, however, that Plaintiff has not sufficiently alleged that his beliefs are substantially burdened by the prison. See id. at 12-16. The Court disagrees.
Regarding Plaintiff’s diet, “[t]his circuit recognizes that prisoners have a constitutional right to a diet conforming to their religious beliefs.” Williams, 2016 WL 1459529, at *9 (quoting Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002)). Plaintiff alleges that, as a devout Muslim, he is required to consume only Halal foods that meet the requirements of Islamic dietary law, and that the BOP refuses to provide Plaintiff with a fully Halal diet with meat and fully-compliant Halal foods in the commissary. Am. Compl. [#29] ¶¶ 335-36. Defendants argue that Plaintiff has failed to allege a substantial burden because of the availability of a Kosher diet, which they assert meets Halal standards, and because Plaintiff has not alleged that he lacked sufficient food items he may consume without violating his beliefs. Motion [#64] at 15-16; see also Williams, 2016 WL 1459529, at *10 (similarly arguing that the plaintiff failed to allege a substantial burden because “the availability of a halal diet for Muslim inmates refutes any claim that denial of a kosher diet substantially
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burdened [the plaintiff’s] free-exercise rights”). However, a First Amendment claim is not dependent on an allegation that a Halal diet including Halal-prepared meats is necessary to the practice of Islam. See Williams, 2016 WL 1459529, at *10 (citing Kay, 500 F.3d at 1220). “[A] prisoner’s belief in religious dietary practices is constitutionally protected if the belief is ‘genuine and sincere,’ even if such dietary practices are not doctrinally ‘required’ by the prisoner's religion.” See Williams, 2016 WL 1459529, at *10 (quoting Kay, 500 F.3d at 1220; citing LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991)).
The Amended Complaint adequately alleges Plaintiff’s requests to exercise his sincerely held religious belief by eating a Halal diet with Halal-prepared meats, and that the BOP has denied his requested accommodation. See, e.g., [#29] ¶¶ 190-91, 194, 196-97, 204-05, 209-10, 214, 216-17, 223, 235. “This is sufficient to satisfy the first step of a First Amendment free-exercise inquiry and to survive a Rule 12(b)(6) motion.” Williams, 2016 WL 1459529, at *10; Kay, 500 F.3d at 1220 (holding that the complaint contained sufficient allegations “to rationally and plausibly conclude that [the prisoner was] a sincere devotee of the Wiccan faith” and “persistently asked prison administrators for permission to possess tarot cards in order to practice his religion,” which requests were denied). The remainder of Defendants’ arguments are either premature at this stage or involve inappropriate requests to resolve factual determinations, such as whether the BOP’s preparation of Kosher meals meet Halal standards. See Motion [#64] at 15.
The Court reaches a similar conclusion with respect to Plaintiff’s request to be provided with meaningful access to an Imam. See, e.g., Am. Compl. [#29] ¶¶ 247-48, 253, 272, 280-81, 283-84, 286-87, 289, 345-54. Plaintiff alleges that, as a devout Muslim, he is required to “regularly consult with leaders of his religion and develop a more personal
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relationship with Allah through prayers and consultation with an Imam.” Id. ¶ 347. He also alleges that the BOP has denied him any kind of access to an Imam for over a year. Id. ¶ 348. These allegations are sufficient at this early stage of the litigation to state a claim. Williams, 2016 WL 1459529, at *10. Defendants’ citation to Hartmann v. California Department of Corrections and Rehabilitation, 707 F.3d 1114, 1123 (9th Cir. 2013), does not disturb this conclusion. In Hartmann, the Ninth Circuit Court of Appeals determined that the plaintiffs failed to allege a substantial burden due to the prison’s failure to hire a full-time Wiccan chaplain because they had access to services of staff chaplains and a volunteer Wiccan chaplain. Plaintiff’s allegations are distinguishable on the basis that he is allegedly being denied virtually all access to an Imam.11 The remainder of Defendants’ arguments are either premature at this stage or involve inappropriate requests to resolve factual determinations, such as whether an Imam (paid or volunteer) is actually available to meet with Plaintiff. See Reply [#80] at 3.
Finally, with respect to the Sunnah fasts, Plaintiff alleges that Defendant BOP has refused, for years, to provide Plaintiff with his meals or medication outside of fasting hours. See Am. Compl. [#29] ¶ 176. For example, during the Sunnah fast in the month of Shawwal, Defendants refused to accommodate Plaintiff’s request to fast. Id. ¶¶ 177-78. Defendants cite to Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 450-51 (1988), for the proposition that Plaintiff has not shown a substantial burden on his desire to fast, because he has not alleged that he was forced to break his fast or that
11 Plaintiff concedes that, after this lawsuit was initiated, he was permitted a single visit from an Imam in September 2015. Am. Compl. [#29] ¶ 291. This single visit does not alter the Court’s conclusions here, because Plaintiff’s allegations of his sincerely-held belief state that he must “regularly consult with leaders.” Id. ¶ 347 (emphasis added).
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participating in non-Ramadan fasting days is required, as opposed to recommended, by Plaintiff’s faith. Motion [#64] at 13-14. Defendants mis-frame the issue, however. Lyng distinguished between situations when government action makes it more difficult to practice certain religions and government action which tends to coerce individuals into acting contrary to their religious beliefs. 485 U.S. at 450. Here, in the absence of allowing Plaintiff to eat his meals before dawn or after sunset, Plaintiff would regularly be deprived of any food whatsoever on a significant number of days throughout the year, including “Mondays and Thursdays; six days during the month of Shawwal (the tenth month of the Islamic calendar); the day of Arafa, which is the ninth day of the month of Zul-Hijjah; Ashura, which is the tenth day of the Islamic month of Muharram; and during most of the month of Sha’ban.” Am. Compl. [#29] ¶ 74. Further, Plaintiff has alleged that, in the absence of taking his medications Neurontin and Bupropion daily, he experiences severe pain in his spine and legs, numbness in his hands and feet, cramping, weakness, stiffness, worsened depression, irritability, agitation, dizziness, mood and emotional problems, severe night sweats, and restlessness. Id. ¶¶ 50-51. The Court finds that these allegations demonstrate a substantial burden on Plaintiff, given that he is forced to choose between practicing his religion and suffering from the ill effects of no food and no medication, or else being coerced into acting contrary to his religious beliefs. See, e.g., Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1212-13 (10th Cir. 1999) (holding that a Muslim plaintiff who received meals at regular meal times during the Ramadan fasts demonstrated a substantial burden). To the extent Defendants argue that there is no substantial burden because fasting during the Sunnah fasts is not doctrinally required by Plaintiff’s religion, the Court has already rejected that argument above. See Williams, 2016 WL 1459529, at *10
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(quoting Kay, 500 F.3d at 1220; citing LaFevers, 936 F.2d at 1119). Having determined that Plaintiff has alleged a substantial burden with respect to
each of the complained-of actions by Defendants, the Court returns to the second inquiry, i.e., whether Plaintiff has provided allegations plausibly demonstrating that the prison’s restrictions may not be supported by a rational penal interest. See Al-Owhali, 687 F.3d at 1241. Regarding Plaintiff’s diet, Plaintiff states that he was not provided with a reason why Halal meals could not be served or a reason why the commissary could not sell Halalcertified meals with Halal meats. Am. Compl. [#29] ¶¶ 201-03, 223-24. Defendants provide vague, speculative reasons underlying a penal interest, such as “lessening administrative burdens” or “diverting resources from other penological interests (such as security).” See Motion [#64] at 18. However, the Court finds Plaintiff’s allegations sufficient to demonstrate that there may not be a rational penal interest underlying this restriction, given that he has been able to discern no reason and has been provided none in response to his inquiries to prison officials. Am. Compl. [#29] ¶¶ 201-03, 223-24.
Similarly, with respect to Imam visitations, Plaintiff alleges, for example, that “Christian and Jewish representatives are allowed to perform rituals and prayers with prisoners during visits,” which he has been prohibited from doing. Am. Compl. [#29] ¶¶ 261-62. Plaintiff also alleges that “[d]uring the few times in 2013 he was permitted visits with the Imam, [Plaintiff] was required to participate in the religious visit through two prison doors, one of which is solid steel” while “[r]eligious visits for Christian and Jewish inmates are not conducted behind the solid steel cell door.” Id. ¶¶ 265-66. He further alleges that he has been told that “[d]ue to security concerns regarding the space, location, and time restraints of Imam visits, it may not be permissible to conduct prayer during his visits,” while
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no such security concerns appear to exist for non-Muslim religious visits. Id. ¶ 268. At this early stage of the case, the Court finds these allegations sufficient to demonstrate that there may not be a rational penal interest underlying these restrictions.
Finally, with respect to the Sunnah fasts, it has already been demonstrated above that the BOP is able to accommodate fasting during Ramadan. Further, Plaintiff alleges that the BOP has been delivering Plaintiff’s medication to him at around 3:00 a.m. at other times of the year during non-fasting days. Id. ¶ 181. While the BOP certainly may have an interest “in controlling the times and manner in which medical staff perform duties,” Motion [#64] at 18, the allegations made by Plaintiff at this early stage of the case certainly call into question whether the BOP’s refusal to accommodate the Sunnah fasts is related to a rational penological interest, given that BOP appears to be able to serve meals and medication before dawn and after sunset at other times of the year.
Accordingly, based on the foregoing, the Court recommends that the Motion [#64] be denied to the extent Defendant BOP seeks dismissal of Plaintiff’s First Amendment claim regarding a Halal diet, access to an Imam, and the Sunnah fasts.
c. RFRA Plaintiff’s RFRA claim concerns the timing of medication distribution during the Sunnah Fasts, his request for a Halal diet which accords with his religious beliefs, his request for meaningful access to an Imam on a weekly basis, and, unlike his First Amendment claim, his request to be allowed to pray five times daily with at least one other Muslim inmate.12 Am. Compl. [#29] ¶¶ 355-90.
12 The Court has already found that the portion of Plaintiff’s RFRA claim seeking injunctive relief with respect to Ramadan fasting is moot; thus that part of the claim is not further addressed
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RFRA provides that the “Government shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb–1(a). “A plaintiff makes a prima facie case under RFRA by showing that the government substantially burdens a sincere religious exercise.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1125-26 (10th Cir. 2013) (citing Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). The burden then shifts to the government to show that the “compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Hobby Lobby Stores, Inc., 723 F.3d at 1126 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 420 (2006) (quoting 42 U.S.C. § 2000bb–1(b))).
In Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014), the Tenth Circuit Court of Appeals held that a burden on religious exercise is “substantial” under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”):13
. . . when (at the very least) the government (1) requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief, (2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief, or (3) places considerable pressure on the plaintiff to violate a sincerely held religious belief—for example, by presenting an illusory or Hobson’s choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise. See also Williams, 2016 WL 1459529, at *7 (quoting Yellowbear; citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010)). “For purposes of evaluating whether the
here. See supra § III.B.2.a. 13 The United States Supreme Court recently noted that RLUIPA permits prisoners “to seek
religious accommodations pursuant to the same standard as set forth in RFRA.” Holt v. Hobbs, 135 S. Ct. 853, 860 (2015) (quoting Gonzales, 546 U.S. at 436). The Court thus looks to RLUIPA precedent as well as RFRA precedent in its evaluation of Plaintiff’s RFRA claim.
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prisoner has adequately pleaded a substantial burden, our inquiry is . . . subjective: ‘we take religious claimants as we find them, assessing the coercive impact [of] the government’s actions on the individual claimant’s ability to engage in a religious exercise, as he understands that exercise and the terms of his faith.’” Williams, 2016 WL 1459529, at *7 (quoting Yellowbear, 741 F.3d at 55). The Supreme Court has clarified in Holt v. Hobbs that it is error to conclude under RLUIPA that the government has not substantially burdened a prisoner’s right to free exercise of religion simply because of “the availability of alternative means of practicing religion.” Williams, 2016 WL 1459529, at *7 (quoting Holt, 135 S. Ct. at 862). “RLUIPA's ‘substantial burden’ inquiry asks whether the government has substantially burdened religious exercise . . . not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Id.
In Williams v. Wilkinson, 2016 WL 1459529, at *7-9, the Tenth Circuit Court of Appeals discussed how its decision in Abdulhaseeb v. Calbone, 600 F.3d at 1312, 1315-17, which reversed a lower court opinion granting summary judgment to defendants on the issue of whether the prisoner’s exercise of a sincerely held religious belief had been substantially burdened by denying his request for a halal-certified diet, affects the determination at the motion to dismiss phase of whether a plaintiff has sufficiently alleged that his sincerely-held religious beliefs have been substantially burdened. The Williams court stated:
[T]he denial of Mr. Abdulhaseeb’s halal-certified request raised a reasonable inference (and thus a genuine issue of material fact at the summary-judgment stage) that the prison had substantially burdened his religious exercise under either the second or third definitional categories recognized in Yellowbear. Here, Defendants argue the prison denied Mr. Williams’s kosher-diet request
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because it already offered a halal diet to Muslim prisoners. In the prison’s understanding, denying Mr. Williams’s faith-based kosher-diet request does not substantially burden his religious exercise because a halal diet complies with Islam and is available. But as we explained in Yellowbear, the subjective inquiry focuses on the coercive impact of the government’s actions on Mr. Williams’s ability to engage in a religious exercise, as he understands that exercise and the terms of his faith. Under these circumstances, the “reasonable inference” we identified in reversing summary judgment in Abdulhaseeb is equally present here. That is, the failure to provide Mr. Williams with a kosher diet will either prevent him from exercising his sincerely held religious belief or force him to make the Hobson’s choice of eating a diet contrary to his beliefs or not eating at all. And this inference applies with even more force at the motion-to-dismiss stage than the summary-judgment stage at issue in Abdulhaseeb. As the case proceeds, evidence may be discovered that overcomes this inference. But at the pleading stage a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Mr. Williams’s Complaint has facial plausibility that the government substantially burdened the exercise of his sincerely-held religious belief. The Complaint alleges Mr. Williams made a religiously-motivated request for a kosher diet, and that Defendants denied that request. We used similar facts to illustrate our interpretation of “substantial burden” under RLUIPA in Yellowbear . . . . As pleaded, the prison’s denial of Mr. Williams’s religiously motivated request for a kosher-diet, whether or not shared by other Muslims, falls easily within Abdulhaseeb’s second category—flatly prohibiting Mr. Williams from participating in an activity motivated by a sincerely held religious belief.
(internal citations and quotation marks omitted).
Based on this guidance from the Tenth Circuit Court of Appeals, all four aspects of
Plaintiff’s RFRA claim meet the “substantial burden” requirement. The Court first
incorporates here the substantial burden analysis from Section III.2.b. above in connection
with Plaintiff’s First Amendment claim regarding diet, Imam access, and group prayer, to
find that Plaintiff meets this requirement. See Ajaj v. Federal Bureau of Prisons, No. 08-cv-
02006-MSK-MJW, 2011 WL 902440, at *3 (D. Colo. Mar. 10, 2011) (stating that on a
motion to dismiss, the pleading burdens regarding whether sincerely-held religious beliefs
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are substantially burdened are the same for claims under the Free Exercise clause, under RLUIPA, and under RFRA); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013) (addressing substantial burden under RFRA) (citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315-16 (10th Cir. 2010)).
Plaintiff did not assert that the BOP’s refusal to allow him group prayer violated the First Amendment, but he does argue that this ban violates his rights under RFRA. See Am. Compl. [#29] ¶¶ 317-90. Therefore, the Court must here determine whether Plaintiff’s belief regarding group prayer is substantially burdened. Plaintiff alleges that Muslims at ADX are not permitted to perform any congregate prayers. Am. Compl. [#29] ¶ 304. He also alleges that he and other Muslims are threatened with disciplinary action if they pray with any other prisoners. Id. ¶ 305. Because Plaintiff’s allegations demonstrate that his belief in the requirement of group prayer is being undermined by Defendant BOP, Plaintiff has met his pleading burden on this step of this RLUIPA claim. See Williams, 2016 WL 1459529, at *7 (quoting Yellowbear, 741 F.3d at 55).
The BOP further argues that Plaintiff has failed to allege that the imposed burden is not in furtherance of a compelling government interest and is not the least restrictive means of furthering that interest. Motion [#64] at 21-23. Plaintiff notes that whether he needs to allege these facts is an unsettled area of law, one which is currently under consideration by the Tenth Circuit Court of Appeals in Ghailani v. Lynch, No. 15-1128 (10th Cir. Mar. 10, 2016).14 In ordering briefing on this issue, the Ghailani court directed the
14 As of the date of this Recommendation, no opinion on the Ghailani case has been issued. As stated in a Tenth Circuit order, the precise issue being briefed by the parties is: “[T]o state a plausible claim under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, is a prisoner required to plead facts tending to show that a substantial burden on his or her exercise of
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parties’ attention to Gee v. Pacheco, 627 F.3d at 1188, which states: Mr. Gee must include sufficient facts to indicate the plausibility that the actions of which he complains were not reasonably related to legitimate penological interests. This is not to say that Mr. Gee must identify every potential legitimate interest and plead against it; we do not intend that pro se prisoners must plead, exhaustively, in the negative in order to state a claim. It is sufficient that he plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.
While the BOP relies on Gee in support of its argument that Plaintiff must allege these facts to state an RFRA claim, it acknowledges that this area of law is unsettled because Gee’s holding pertained to a First Amendment claim. See Motion [#64] at 23; Reply [#80] at 7; see also Response [#71] at 21 n.13.
The Court need not here decide the issue pending before the Tenth Circuit in Ghailani, because, at this early stage of the case, the Court finds that Plaintiff has plausibly stated that the BOP’s actions may not be reasonably related to legitimate penological interests. The Court has already discussed Plaintiff’s allegations regarding diet, Imam access, and the Sunnah fasts above in connection with Plaintiff’s First Amendment Claim, and incorporates that analysis here to find that Plaintiff has met his pleading burden with respect to those restrictions.
Regarding group prayer, Plaintiff has only asked to pray with other Muslim prisoners at times when prisoners are already permitted to speak with one another. Am. Compl. [#29] ¶ 302. He states that each prayer takes five-to-ten minutes to complete. Id. ¶ 297. He says that the prayers do not interfere with prison security concerns. Id. ¶ 303. He also
religion is not in furtherance of a compelling governmental interest and is not the least restrictive means of furthering that interest?” See Order, No. 15-1128 (10th Cir. Mar. 10, 2016).
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states that he and other Muslims are not permitted to pray aloud simultaneously while in their separate isolation cells. Id. ¶ 306. He states that Christian, Jewish, and Native American prisoners are permitted to pray with their respective clergypersons; that in the Kunit of ADX where Plaintiff is housed, congregational prayers of other religious faiths take place in the open range area outside of the prisoners’ cells; that in the more secure units of ADX, prisoners may pray with clergypersons of other religious faiths within the prisoners’ cells; and that in the K-unit, religious groups other than Muslims are permitted “to spend hours singing and praying on the range.” Id. ¶¶ 313-16. Given these allegations, the Court finds Plaintiff’s statements sufficient to demonstrate that there may not be a rational penal interest underlying this restriction against Plaintiff as a Muslim practitioner.
Accordingly, based on the foregoing, the Court recommends that the Motion [#64] be denied to the extent Defendant BOP seeks dismissal of Plaintiff’s RFRA claim regarding a Halal diet, access to an Imam, Sunnah fasting, and group prayer.
d. Fifth Amendment Plaintiff asserts an equal protection claim, stating that he was deprived of his Fifth Amendment rights by being treated differently from those in other religious groups at ADX. Am. Compl. [#29] ¶¶ 400-404. “Equal protection is essentially a direction that all persons similarly situated should be treated alike.” Aldulhaseeb, 600 F.3d at 1322 n.10 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “Religion is a suspect classification.” Aldulhaseeb, 600 F.3d at 1322 n.10 (citing United States v. Batchelder, 442 U.S. 114, 125 n. 9 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam); Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008)). All that
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a plaintiff “must allege to properly state an equal protection claim is that he was personally denied equal treatment on the basis of his religion.” Aldulhaseeb, 600 F.3d at 1322 n.10 (citing Abdulhaseeb v. Saffle, 65 F. App’x 667, 673 (10th Cir. 2003)).
Defendants argue that Plaintiff failed to allege that the “difference in treatment was not reasonably related to legitimate penological goals.” Motion [#64] at 25. They also argue that Plaintiff has “alleged no facts to show that he was similarly situated to other inmates who were treated differently.” Id. at 24-25. However, under the circumstances of this case, Plaintiff is under no obligation to make such allegations to state an equal protection claim.
First, when a plaintiff alleges that his equal protection rights have been violated on the basis of his membership in a suspect class or due to the defendants’ interference with a fundamental right, he is not required to provide allegations that the difference in treatment was not reasonably related to a legitimate penological purpose. See Tennyson v. Carpenter, 558 F. App’x 813, 820 (10th Cir. 2014) (stating that because the incarcerated Plaintiff alleged that he was singled out for discipline because he had exercised his fundamental right to use the prison’s grievance system under the First Amendment, “it was not necessary for him to allege further that his different treatment was not reasonably related to a legitimate penological purpose”). Here, as discussed above, Plaintiff has sufficiently alleged that his fundamental right to free exercise of religion under the First Amendment has been violated. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) (characterizing as “fundamental” the rights and interests protected by the free exercise clause of the First Amendment). Thus Plaintiff need not provide allegations that the difference in treatment was not reasonably related to a legitimate penological purpose in
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connection with his equal protection claim. Second, Defendants are correct to the extent they argue that Plaintiff must make a
threshold showing that he was treated differently from others similarly situated to him. See Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011). Plaintiff has sufficiently done this. See, e.g., Am. Compl. [#29] ¶¶ 192 (“Jewish prisoners are able to obtain their religiously mandated Kosher diet through the Common Fare diet.”), 257, 259 (“The FCC employs full-time Chaplains for other religious groups including Christian, Seventh-day Adventist, Catholic, and Jewish Chaplains,” and “[v]olunteers of other faiths have been approved as volunteers for Jewish and Native American prisoners.”), 313-14 (“. . . Christian, Jewish, and Native American prisoners are able to pray with their respective clergypersons,” and “[i]n the K-unit at ADX, where [Plaintiff] is currently housed, congregational prayers of other religious faiths take place in the open range,” i.e., outside of the prisoners’ cells.); see also, e.g., Almonte v. Rivas, No. 13-cv-1132-MJR, 2013 WL 6263285, at *4 (S.D. Ill. Dec. 3, 2013) (holding that the incarcerated plaintiff alleged an equal protection claim by alleging that he was denied the “right to engage in group prayer with other Muslims when non-Muslim inmates are allowed that privilege”). However, Plaintiff need not identify these similarly situated individuals with more specificity in his Amended Complaint. In Tennyson v. Carpenter, 558 F. App’x at 819-20, the Tenth Circuit Court of Appeals determined that the district court erred by requiring Plaintiff to allege that he was treated differently from other inmates with similar records, because Plaintiff had sufficiently alleged that a fundamental right under the First Amendment was violated. In so doing, the Tenth Circuit distinguished Templeman v. Gunter, 16 F. 3d 367, 371 (10th Cir. 1994), in which the court had affirmed dismissal of an inmate’s equal protection claim in
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connection with the inmate’s transfer to administrative segregation, because this issue did not involve a fundamental right and the inmate had failed to plausibly allege that there were no relevant differences between him and other inmates which might reasonably account for the difference in treatment. See Tennyson, 558 F. App’x at 819-20; see also Reed v. Faulkner, 842 F.2d 960, 962, 964 (7th Cir. 1988) (stating that a separate equal protection violation could exist if officials treat one religion “differently from” another in a deliberate fashion and “for no reason at all”). Thus, the Court finds that Plaintiff here has met the minimum threshold for plausibly stating an equal protection claim.
Accordingly, based on the foregoing, the Court recommends that the Motion [#64] be denied to the extent Defendant BOP seeks dismissal of Plaintiff’s Fifth Amendment equal protection claim. C. Motion to Dismiss Individual Capacity Claims
Plaintiff seeks only damages from the individual Defendants in their individual capacities. Am. Compl. [#29] at 59.
1. First Amendment: Free Exercise of Religion Claim One asserts a violation of the First Amendment based on an alleged restriction of Plaintiff’s right to free exercise of religion by Defendants Berkebile, Oliver, Hall, Lamb, Camacho, Morrow, McCoic, Huddleston, Castle, Henderson, Knox, and Crank. Id. ¶¶ 317-54. Plaintiff asserts this claim pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United States Supreme Court recognized that a cause of action for money damages may lie under some circumstances against federal officials acting under color of their authority for
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violations of an individual’s constitutional rights. 403 U.S. at 395-97. Bivens only authorizes
suit against federal officials in their individual capacities. Smith v. United States, 561 F.3d
1090, 1093 (10th Cir. 2009). In the Amended Complaint, Plaintiff forthrightly states:
Plaintiff acknowledges that this district, relying on dicta in Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) and Bush v. Lucas, 462 U.S. 367, 390 (1983), has refused to recognize First Amendment Bivens claims. See, e.g., Shepard v. Rangel, No. 12-cv-01108-RM-KLM, 2014 WL 7366662, at *15 (D. Colo. Dec. 24, 2014); Bogard v. Hutchings, No. 12-cv-01581-KMT, 2014 WL 959496, at *3 (D. Colo. Mar. 12, 2014); Saleh v. United States, No. 09-02563, 2011 WL 2682803, at *11 (D. Colo. Mar. 8, 2011), overruled in part on other grounds, No. 09-02563, 2011 WL 2682728 (D. Colo. July 8, 2011). In the event this Court believes Plaintiff’s prayer for damages under Bivens should be precluded by these decisions, Plaintiff notes he is seeking damages pursuant to Federal Rule of Civil Procedure 11(b)(2) (“the claims . . . are warranted by . . . a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”).
Id. ¶ 7 n.1. Defendants seek dismissal of Claim One precisely on these grounds, i.e., that
a Bivens remedy does not exist for First Amendment claims based on freedom of religion.15
Motion [#65] at 8-11; Reply [#79] at 6-8.
As the parties are aware, the undersigned has already carefully considered this legal
issue in connection with a previous lawsuit and reached the conclusion that a Bivens
remedy does not exist for First Amendment claims in at least one non-religious context.16
15 Defendants note that there is some support in the Tenth Circuit for a Bivens remedy under the First Amendment solely in the context of an alleged violation of organizational and associational rights in a non-prison context, i.e., in connection with issues between tax protestor organizations and the Internal Revenue Service. Motion [#65] at 10 n.5 (citing Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521, 1530-31 (10th Cir. 1994)). Plaintiff does not argue that this case is applicable to the facts of the present lawsuit.
16 The Court notes that most circuit courts appear to avoid resolving the issue of whether a Bivens claim exists when other grounds for resolving the underlying motion exist, such as a failure to state a claim or qualified immunity. See, e.g., McGowan v. United States, 825 F.3d 118, 123 (2d Cir. 2016) (stating in connection with the issue of whether a First Amendment Bivens remedy against BOP employee should be recognized: “We need not decide this difficult issue, however, because we conclude that [the plaintiff’s] Bivens claim fails for the independent reason that [the]
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See Shepherd v. Rangel, No. 12-cv-01108-RM-KLM, 2014 WL 7366662, at *6, 15-18 (D. Colo. Dec. 24, 2014) (adopting Recommendation of the undersigned after conducting a de novo review) (cited by Am. Compl. [#29] ¶ 7 n.1; Motion [#65] at 10 Response [#72] at15, 15 n.12; Reply [#79] at 8). In Shepherd v. Rangel, the Court provided a lengthy discussion of the legal standard for recognizing a Bivens claim, which the Court largely incorporates below.
In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme Court has noted that because implied causes of action are generally disfavored, the Supreme Court has been reluctant to extend Bivens liability “to any new context or new category of defendants.” Id. at 68; see also Wilkie v. Robbins, 551 U.S. 537, 549-550 (2007) (summarizing the basic considerations underlying past Supreme Court decisions declining to create Bivens claims and applying a two-part analysis to the creation of Bivens liability).
The Court recently declined to extend Bivens liability to claims against prison officials in their individual capacities for an alleged violation of a prisoner’s First Amendment rights. Saleh v. United States, No. 09-02563, 2011 WL 2682803, at *10-12 (D. Colo. Mar. 8, 2011), overruled in part on other grounds, No. 09-02563, 2011 WL 2682728 (D. Colo. July 8, 2011). In Saleh, the Court found no Bivens remedy for a prisoner’s First Amendment
defendant . . . is entitled to qualified immunity.”). Here, without explicitly deciding the issue at this time, the Court notes that its review of the First Amendment claim indicates that at least part of the claim against some of the individual Defendants would otherwise survive the dismissal motions, and therefore the Court first addresses the overarching issue of whether a Bivens remedy against individuals exists under the circumstances of this case.
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Claim because (1) the Supreme Court has never explicitly extended Bivens to the First Amendment, and (2) other adequate avenues of relief for litigating the injury were available to the plaintiff. Id. at *11; see also Schweiker v. Chilicky, 487 U.S. 412, 421-23 (1988); Bush v. Lucas, 462 U.S. 367, 386-88 (1983) (holding that, even assuming a First Amendment violation had occurred and acknowledging that the administrative “remedies do not provide complete relief for the plaintiff[,]” a Bivens action was inappropriate because the congressionally installed administrative system “provide[d] meaningful remedies for employees who may have been unfairly disciplined”).
The Supreme Court has never recognized that federal prisoners have a right of action for damages against federal officials pursuant to Bivens for First Amendment violations. Saleh, 2011 WL 2682803, at *11. In fact, the Supreme Court has explicitly refused to acknowledge that federal prisoners may bring a claim for monetary damages based on an alleged First Amendment violation. See, e.g., Iqbal, 556 U.S. at 675 (noting that the Court had “declined to extend Bivens to a claim sounding in the First Amendment”); see also Bush, 462 U.S. at 390 (citing United States v. Standard Oil Co., 332 U.S. 301, 302 (1947)) (declining “to create a new substantive legal liability without legislative aid” by declining to recognize a right to seek damages for alleged First Amendment violation pursuant to Bivens). The Court suggested in Saleh that such claims may not have been recognized by the Supreme Court because prisoners may pursue Federal Tort Claims Act claims or claims for injunctive relief, regardless of the availability of a Bivens damages claim. 2011 WL 2682803, at *11; see Wilkie, 551 U.S. at 550 (noting that adequate, alternative bases for pursuing a particular claim amount “to convincing reason for the Judicial Branch to refrain from providing new and freestanding remedy in damages”); Bush,
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462 U.S. at 386; cf. 42 U.S.C. § 1997e(e) (noting that prisoners are not entitled to claim for money damages where no physical injury is shown).
Since this Court’s decision in Saleh, the Supreme Court has reaffirmed that it has never held that Bivens extends to First Amendment claims. Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012). The Supreme Court noted in Minneci v. Pollard, 132 S. Ct. 617, 623 (2012), that Wilkie fairly summarizes the basic considerations that underlie past Supreme Court decisions declining to create Bivens claims. See Wilkie, 551 U.S. at 550. In Wilkie, the Supreme Court identified two questions relating to whether to recognize a Bivens remedy:
In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. [citation omitted] . . . [E]ven in the absence of an alternative, a Bivens remedy is a subject of judgment, [and] “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Id. (quoting Bush, 462 U.S. at 378).
Though this two-part analysis is not always delineated explicitly in the Supreme Court’s decisions, case law shows that these factors have been frequently cited in decisions to deny Bivens liability. See Bush, 462 U.S. at 386-388 (denying Bivens liability for a federal employee’s claim that his federal employer dismissed him in violation of the First Amendment because congressionally created federal civil service procedures provide meaningful redress); Chappell v. Wallace, 462 U.S. 296, 298-300 (1983) (finding no implied Bivens action for a claim by military personnel that military superiors violated various constitutional provisions because there were special factors related to the military that
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weighed against implying a Bivens action); see also United States v. Stanley, 483 U.S. 669, 683-684 (1987) (similar).
Thus, the Court must address whether there were alternative remedies available to the incarcerated plaintiff. In Davis v. Passman, 442 U.S. 228, 242 (1979), the Supreme Court held that persons who have “no [other] effective means” of redress “must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights.” However, Plaintiff has at least four alternative, existing processes to protect his First Amendment constitutional interests.
First, he may seek injunctive relief, and indeed does so in this case. See Malesko, 534 U.S. at 74. Unlike the Bivens remedy, which courts “have never considered a proper vehicle for altering an entity’s policy, injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.” Malesko, 534 U.S. at 74. While injunctive relief remains available, the Court is unconvinced that money damages are necessary to deter unconstitutional conduct. See, e.g., Williams v. Klien, 20 F. Supp. 3d 1171, 1175 (D. Colo. 2014) (recognizing that the Courts have not permitted Bivens claims for damages raised by prison inmates because prisoners may pursue claims for injunctive relief based on an alleged violation of the First Amendment). In fact, the existence of a monetary remedy is simply not required by applicable precedent or American jurisprudential principles. See, e.g., K.B. v. Perez, __ F. Supp. 3d __, __, No. 14-cv-03514WJ-NYW, 2016 WL 1301040, at *4 (D. Colo. Apr. 1, 2016) (holding that there is no implied damages action in a Bivens lawsuit against federal officers in violation of the right to familial association arising either under the First Amendment or the Fifth Amendment) (citing Schweiker, 487 U.S. at 421-22 (“The absence of statutory relief for a constitutional violation
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. . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.”)).
Second, Plaintiff asserts Fifth Amendment claims that are mostly based on the same deprivations alleged under the First Amendment, to the extent Plaintiff presents argument regarding Halal meals, access to an Imam, and group prayer. See Am. Compl. [#29] ¶¶ 403-12. The parties do not dispute that monetary damages pursuant to Bivens are available under the equal protection clause of the Fifth Amendment. See Motion [#65] at 8 (citing Davis v. Passman, 442 U.S. 228 (1979)). Thus, this constitutes an alternative remedy available to Plaintiff. See, e.g., Custard v. Armijo, No. 15-cv-00448-GPG, 2015 WL 2407103, at *6 (D. Colo. May 19, 2015) (holding that alternative remedies existed militating against extending Bivens damages in part because the plaintiff “assert[ed] Eighth Amendment claims based on the alleged deprivations that constituted his claims for [First Amendment] retaliation”).
Third, Plaintiff may seek a remedy under the mandamus statute, 28 U.S.C. § 1361. See Custard v. Allred, No. 13-cv-02296-REB-CBS, 2015 WL 328626, at *4 (D. Colo. Jan. 26, 2015) (declining to extend a Bivens damages remedy where alternative avenues of relief existed, in part because “Plaintiff could also pursue a remedy through the mandamus statute”). For mandamus to issue, there must be a clear right to the relief sought, a plainly defined and peremptory duty on the part of respondent to do the act in question, and no other adequate remedy available. Hadley Mem’l Hosp., Inc. v. Schweiker, 689 F.2d 905, 912 (10th Cir. 1982). Plaintiff must also show that his right to the writ is “clear and indisputable.” See Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989) (“To ensure that mandamus remains an extraordinary remedy, petitioners must
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show that they lack adequate alternative means to obtain the relief they seek . . . and carry the burden of showing that [their] right to issuance of the writ is clear and indisputable[.]”) (citation omitted); United States v. Carrigan, 778 F.2d 1454, 1466 (10th Cir. 1985).
Fourth, Plaintiff may seek remedy for his concerns through the prisoner grievance system. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1237 (10th Cir. 2005); 28 C.F.R. §§ 542–542.19 (BOP Administrative Remedy Program through which prisoner can seek formal review of any aspect of confinement). Inmates in Plaintiff’s position have full access to remedial mechanisms established by the BOP, including grievances filed through the BOP’s Administrative Remedy Program (“ARP”). See 28 C.F.R. § 542.10 (explaining ARP as providing “a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement”). This program provides yet another means through which allegedly unconstitutional actions may be brought to the attention of the BOP and prevented from recurring. See, e.g., Custard, 2015 WL 2407103, at *6 (holding that alternative remedies existed which militated against extending Bivens damages, in part because the plaintiff could “also pursue administrative relief through the BOP’s administrative remedy program, and apparently has done so”). This method has the added benefit of limiting judicial interference with prison management while maintaining a method of redress for valid constitutional claims. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 566-67 (1974) (“The operation of a correctional institution is at best an extraordinarily difficult undertaking. . . . [Correctional officers] must have the necessary discretion without being subject to unduly crippling constitutional impediments.”).
These alternative remedies foreclose the creation of a Bivens remedy for Plaintiff’s First Amendment claims. “[T]here is no reason to rely on a court-created remedy, like
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Bivens, when Congress has created an adequate means for obtaining legal redress.” Simmat, 413 F.3d at 1231.
However, the Court must also examine whether any special factors exist to counsel against the creation of a Bivens remedy. The Court may create a new Bivens remedy only if there are no special factors counseling hesitation against the creation of such a remedy. Wilkie, 551 U.S. at 550. Though neither the Supreme Court nor the Tenth Circuit has offered explicit guidance for interpreting this language, the plain meaning of the language suggests that the threshold for finding special factors is quite low.
The only relevant threshold—that a factor “counsels hesitation”—is remarkably low. It is at the opposite end of the continuum from the unflagging duty to exercise jurisdiction. Hesitation is a pause, not a full stop, or an abstention; and to counsel is not to require. “Hesitation” is “counseled” whenever thoughtful discretion would pause even to consider. Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009). In the case at hand, the factors counseling hesitation are more than sufficient to meet this low threshold. In the context of prison management, the Supreme Court recognizes the value of balancing inmates’ interests against the administrative needs of the prison, noting that a degree of flexibility and accommodation of prison discretion is required. See, e.g., Wolff, 418 U.S. at 566-67 (stating that correctional institutions “must have the necessary discretion without being subject to unduly crippling constitutional impediments[.]”). Courts owe substantial deference to the professional judgment of prison administrators, and absent concerns that prison inmates will be otherwise unable to redress their claims, this Court hesitates to create a new cause of action that may be brought against prison officials for monetary damages. See Beard v. Banks, 548 U.S. 521 (2006) (Justice Breyer, with two Justices and the Chief Justice concurring, two Justices concurring
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in the judgment). As discussed previously, prisoners already have a variety of ways to pursue First
Amendment claims, and denying Bivens claims for money damages will not deny prisoners effective relief for their claims. On the other hand, creating a superfluous way for prisoners to gain relief by suing prison employees individually will interfere with prison management and add to the Court’s already heavy burden of prisoner litigation. See K.B., 2016 WL 1301040, at *4 (“[E]xtending Bivens in this case would potentially permit a huge number of claims from families of offenders seeking to challenge particular conditions of offenders’ confinement or particular conditions of offenders’ probation/supervised release. The Court finds this potential result to be a special factor that counsels against creation of a new Bivens remedy in this case.”). These special factors are sufficient to counsel hesitation in creating a new Bivens remedy.
A Bivens damages remedy “is not an automatic entitlement . . . and in most instances we have found a Bivens remedy unjustified.” Wilkie, 551 U.S. at 550. As both of the above factors weigh against extending Bivens to First Amendment claims in the context of federal prisons, the Court agrees with Defendants that here, there is no legal basis to recognize any claim for damages against Defendants in their individual capacities.
Accordingly, the Court finds that there is no Bivens remedy under the free exercise clause of the First Amendment under the circumstances of this case, and therefore the Court recommends that Claim One be dismissed with prejudice to the extent it is asserted against the individual defendants. Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir.1990) (stating that prejudice should attach to a dismissal when the plaintiff has not made allegations “which, upon further investigation and development, could raise
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substantial issues”). 2. RFRA Defendants next argue that there are no damages available in an RFRA claim, and
because Plaintiff sues Defendants in their individual capacities for damages only, this claim should be dismissed against them individually.17 See Motion [#65] at 18-20; Reply [#79] at 1-6. Plaintiff argues, in short, that RFRA’s “other person acting under color of law” language triggers individual liability, and that RFRA’s “appropriate relief” language includes damages. Response [#72] at 9-13.
Congress enacted RFRA to permit legal burdens on an individual’s religious exercise only if the government can show a compelling need to apply the law to that person and that the law does so in the least restrictive way. Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151, 1174 (10th Cir. 2015) (citing Employment Division, Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 882-84 (1990)), rev’d on other grounds by Zubik v. Burwell, 136 S. Ct. 1557 (2016). “[A] plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Little Sisters, 794 F.3d at 1174 (quoting Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); citing 42 U.S.C. § 2000bb–1(a)).
Because the Court’s analysis here relies, at least in part, on a statutory interpretation
17 As with the First Amendment claim, without explicitly deciding the issue at this time, the Court notes that its review of the RFRA claim indicates that at least part of the claim against some of the individual Defendants would survive the dismissal motions, and therefore the Court first addresses the underlying issue of whether a damages remedy against individuals exists under the circumstances of this case.
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of RLUIPA, the Court begins with the Tenth Circuit Court of Appeals summary of the history
of RFRA and RLUIPA:
Our story starts with Smith. In Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990), the Supreme Court held that the Constitution’s Free Exercise Clause does not exempt religious persons from the dictates of neutral laws of general applicability. The devout must obey the law even if doing so violates every article of their faith. When Smith was handed down, some worried that it upset existing free exercise doctrine dating back to Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert and its progeny the Supreme Court had suggested that no law, not even a neutral law of general applicability, may “substantially burden” the exercise of religion unless that burden amounts to the “least restrictive means” of achieving a “compelling governmental interest.” Smith, 494 U.S. at 883 (O’Connor, J., concurring in the judgment). What protections Sherbert appeared to afford religious observances, Smith appeared ready to abandon.
Concerned with just this possibility, worried that Smith left insufficient room in civil society for the free exercise of religion, Congress set about the business of “restoring” Sherbert, at least as a matter of statute. It opened its efforts with the Religious Freedom Restoration Act of 1993. See 42 U.S.C. § 2000bb(b)(1). Passed nearly unanimously, RFRA was (and remains) something of a “super-statute.” It instructed that all forms of governmental action—state or federal—had to satisfy Sherbert’s test or risk nullification.
But as it turned out, this marked only the opening lines in what proved to be a long dialogue between Congress and the Court. In City of Boerne v. Flores, 521 U.S. 507, 117 (1997), the Court held that RFRA stretched the federal hand too far into places reserved for the states and exceeded Congress’s Section 5 enforcement authority under the Fourteenth Amendment. As a result, the Court held RFRA unconstitutional as applied to the states, though still fully operational as applied to the federal government. See id. at 529-36.
Undaunted, Congress reentered the field soon enough, this time with the Religious Land Use and Institutionalized Persons Act of 2000. In RLUIPA Congress invoked not just its Fourteenth Amendment but also its Spending Clause powers to (re)impose Sherbert’s balancing test on state action—though now state action in only two specific arenas, arenas in which Congress found the record of religious discrimination particularly clear and compelling. First, in the land use context, where churches are sometimes disfavored by local zoning boards because (among other things) church members are said to generate “too much” traffic or congestion or noise when they gather for communal expressions of faith. Second, in the prison context,
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where it is so easy for governmental officials with so much power over inmates’ lives to deny capriciously one more liberty to those who have already forfeited so many others. This time Congress acted unanimously and this time the Court upheld its effort, at least against a facial challenge under the Establishment Clause. See Cutter v. Wilkinson, 544 U.S. 709, 725 (2005). Yellowbear v. Lampert, 741 F.3d 48, 52-53 (10th Cir. 2014) (some internal citations omitted). RFRA does not permit suits for damages against the government or individuals in their official capacities. See, e.g., Chichakli v. Samuels, No. CIV-15-687-D, 2016 WL 2743542, at *3 (W.D. Okla. May 11, 2016) (citing Kikimura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001)). It is further well-settled in the Tenth Circuit that RLUIPA does not permit individual capacity claims. Stewart v. Beach, 701 F.3d 1322, 1334-35 (10th Cir. 2012). However, neither the United States Supreme Court nor the Tenth Circuit Court of Appeals nor any District Court within the Tenth Circuit has addressed with any relevant particularity the issue of whether RFRA permits claims against defendants in their individual capacities for damages. Further, the Court has been unable to find any other Circuit Court of Appeals which has addressed the issue in any relevant context. See, e.g., Lebran v. Rumsfeld, 670 F.3d 540, 557 (4th Cir. 2012) (“[The plaintiff] contends that [RFRA] permits him to recover damages by suing the individual defendants in their personal capacities. . . . [W]e have no occasion to inquire how RFRA applies outside of a military setting. Those questions are not before us, and we have no need to address them.”); Davila v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015) (declining “to address whether RFRA authorizes suit against officers in their individual capacities”). A handful of District Courts outside of the geographic area of the Tenth Circuit of
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Court of Appeals have addressed the issue thoroughly, with differing results. For example,
in Jama v. U.S.I.N.S., 343 F. Supp. 2d 338. 374-75 (D.N.J. 2004), the court determined that
RFRA permits individual capacity suits for damages for three primary reasons:
First, while § 2000bb–1(c) does not explicitly permit individual capacity suits for money damages, it does not explicitly preclude them, either. . . . Second, a conclusion that RFRA does not allow for suits for money damages would seem to be at odds with the general Congressional purpose that animates the statute. Congress enacted RFRA because it wanted to re-invigorate protection of free exercise rights after the Supreme Court in Smith diluted the standard used to evaluate claimed violations of those rights. . . . Third, while no other court has explicitly theorized why money damages are available under RFRA, or held explicitly that they are, courts have considered (thus assuming the availability of) individual capacity claims for damages under the statute. While these courts have not granted damages in any of these cases, their denials of the claims for damages have been based on the merits of the claims or the defendants’ entitlement to qualified immunity rather than a finding that damages are unavailable under the statute. . . . Congress has amended RFRA since these cases were decided; that amendment gave Congress an opportunity to change statutory language and clarify that damages were not available under RFRA, but, significantly, Congress did not do this.
(internal footnote omitted). More recently, the court in Patel v. Bureau of Prisons, 125 F.
Supp. 3d 44, 49-54 (D.D.C. 2015) reached the same conclusion:
[T]he phrase “other person acting under color of law” . . . contemplates that persons “other” than “officials” may be sued under RFRA, and persons who are not officials may be sued only in their individual capacities. . . . By authorizing suits against “persons” who are not “officials,” Congress thus envisioned at least some individual-capacity suits under RFRA. . . .
The distinction between RFRA and RLUIPA is essential to the question raised here. . . . Although “RLUIPA borrows important elements from RFRA,” including virtually identical language creating a private right of action for aggrieved individuals, the distinct constitutional bases for the two laws affect their breadth. In particular, because RLUIPA was enacted as an exercise of Congress’s spending power, interpreting that statute to allow damages actions against state officials in their individual capacities would raise serious questions regarding whether Congress had exceeded its constitutional authority. . . . RFRA’s application to federal action is not based on the Spending Clause. . . . There can be no question, moreover, that Congress
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possesses the power “to establish and maintain an effective regime of criminal law enforcement,” including the power to control “the operation of federal correctional facilities.” . . . This Article I power carries with it the authority to require religious accommodation of federal inmates pursuant to RFRA. . . . Because Congress can create a right of action against an individual to enforce such statutory requirements, it need not satisfy the “clear notice” requirement that attaches to conditions imposed under the Spending Clause.
It follows from this conclusion that Congress also intended to permit individual capacity suits for damages. . . . The only significant purpose for an individual-capacity claim, then, would be to seek damages—damages that are unavailable in RFRA actions against the sovereign. . . . Faced with the question of what remedies are available under a statute that provides a private right of action, courts presume the availability of all appropriate remedies—including, at least at times, damages—unless Congress has expressly indicated otherwise. RFRA expressly allows plaintiffs to “obtain appropriate relief against a government,” and contains no express indication that damages are prohibited.
(internal citations, quotation marks, and footnotes omitted).
Other recent District Court opinions have reached the opposite conclusion, i.e., that
RFRA does not permit individual capacity suits for damages. In Davilla v. Watts, No. 2:15-
cv-171, 2016 WL 1706172, at *5-6 (S.D. Ga. Apr. 28, 2016), the court stated:
There is no binding precedent which addresses whether the RFRA provides claims against individual defendants for monetary damages. . . . The Eleventh Circuit Court of Appeals has not determined whether the RFRA bars monetary damages claims against individual defendants. . . . In Smith v. Allen, the Eleventh Circuit concluded that § 2000cc–2(a) cannot be construed as creating a private cause of action against individual defendants for monetary damages. The “appropriate relief” section contained in the RFRA is identical to that contained in the RLUIPA. . . . The undersigned has no reason to believe that the Eleventh Circuit’s reasoning in a case pertaining to the RFRA would be any different than that court’s reasoning in Smith, which concerned the RLUIPA and which is a statute of very similar construct as the RFRA. Accordingly, . . . Plaintiff’s monetary damages claims under the RFRA against Defendants are barred.
(internal citations and quotation marks omitted). The Court finds most persuasive of all,
though, to be the reasoning provided in Tanvir v. Lynch, 128 F. Supp. 3d 756, 774-81
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(S.D.N.Y. 2015), in which the court stated as follows:
[S]ince [RFRA] says very little about remedies . . . it is unlikely that Congress intended it to displace the existing remedial system for constitutional violations. Indeed, nothing in the Act’s Congressional findings or statements of purpose says anything about changing the remedial scheme applicable to free exercise claims. And nothing on the face of the Act’s substantive provisions outwardly suggests they do anything other than carry out the law’s stated purpose—namely, restoring the compelling interest test as it existed before Smith. . . . [A] Bivens action would have provided the only potential path for an individual seeking personal capacity damages from a federal official for violation of the Free Exercise Clause at the time of RFRA’s enactment. . . [and] the Supreme Court has never recognized a Bivens remedy for violations of the Free Exercise Clause. As a consequence, to interpret RFRA’s reference to “appropriate relief” as contemplating a remedy then unknown to the law is, at the least, a stretch. Rather, the plain language of the statute read in the light of its stated purpose suggests the law changed the standard applicable to free exercise claims while retaining all remedies that were understood as “appropriate” for claims under the Free Exercise Clause—and nothing more.
The conclusion that RFRA did not displace the existing remedial scheme—whether by adding to or removing from it—is reinforced by the statute’s legislative history. Indeed, both House and Senate committee reports, which are regarded as the most authoritative and reliable materials of legislative history, evidence concern about the potential misinterpretation of RFRA’s impact on existing law. For example, the Senate Judiciary Committee’s report states that “[a]lthough the purpose of this act is only to overturn the Supreme Court’s decision in Smith, concerns have been raised that the act could have unintended consequences and unsettle other areas of the law.” In particular, the legislative history includes discussion of the bill’s potential impact on abortion rights, the ability of religious organizations to participate in publicly funded social welfare and educational programs, and the availability of tax exemptions for such organizations. Thus, the Senate Judiciary Committee’s report states that: “To be absolutely clear, the act does not expand, contract or alter the ability of a claimant to obtain relief in a manner consistent with the Supreme Courts’s [sic] free exercise jurisprudence under the compelling governmental interest test prior to Smith.” In view of such an understanding—and against a backdrop where the Supreme Court has never recognized a Bivens remedy under the Free Exercise Clause, whether before or after Smith—it would seem strange indeed for Congress to have employed a phrase as ambiguous as “appropriate relief” to create such a remedy where one was not previously recognized. . . .
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Nonetheless, Plaintiffs contend that Congress’s reference to “appropriate relief” in RFRA’s private right of action triggers the “ordinary convention” recognized in Franklin v. Gwinnett Cnty. Pub. Sch., whereby courts presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise. But whatever [the] force of that rule in some contexts, it lacks any here. As noted in Sossamon, which interpreted this very statutory provision as borrowed in RFRA’s companion statute, Franklin required the Supreme Court to interpret the scope of an implied statutory right of action. With no statutory text to interpret, the Court presumed the availability of all appropriate remedies unless Congress had expressly indicated otherwise. That is not the case here, however, as Congress has created an express private cause of action that provides for “appropriate relief.” The Franklin presumption is thus inapplicable, and the meaning of “appropriate relief” must be discerned using the traditional tools of statutory construction. Those tools, as noted above, point to the conclusion that Congress did not intend to create a Bivens-type action with the language of “appropriate relief.”
Plaintiffs also seek support in Jama v. U.S.I.N.S., 343 F. Supp. 2d 338 (D.N.J. 2004), where the court determined that RFRA provides for personal capacity damages against federal officers. But that decision, and subsequent district court opinions adopting its reasoning, rest on a crucial yet flawed premise—that courts have always recognized § 1983 and Bivens claims for money damages against officials for violation of the Free Exercise Clause. Setting aside the § 1983 cases, which have no bearing on whether a claim exists under Bivens, there is no question—in light of Iqbal, Reichle, and, most recently, Turkmen—that the Supreme Court has never recognized a Bivens remedy for violations of the Free Exercise Clause. Indeed, before RFRA was enacted in 1993, the Supreme Court’s only Bivens case in the First Amendment context came in the form of its refusal to recognize such an action in Bush—decided a full decade before RFRA became law.
In the end, the fundamental task for the judge is to determine what Congress was trying to do in passing the law. As explained, Congress’ intent in enacting RFRA could not be clearer: It was to restore Congress’ understanding of the compelling interest test as it existed before Smith—no more, no less. And because Congress enacted RFRA to return to a pre-Smith world, a world in which damages were unavailable against the government, ‘appropriate relief’ is most naturally read to exclude damages against the government.
(internal quotation marks, citations, and footnotes omitted). The Tanvir court noted in
conclusion that:
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Plaintiffs argument might carry more weight were the Supreme Court eventually to recognize a Bivens remedy in the First Amendment context. The Supreme Court has observed, in a related context, that “[t]he meaning of the word ‘appropriate’ permits its scope to expand to include . . . remedies that were not appropriate before . . . , but in light of legal change . . . are appropriate now.” West v. Gibson, 527 U.S. 212, 218 (1999). Thus, were the Supreme Court to recognize a Bivens remedy under the Free Exercise Clause, it might well be that “appropriate relief” under RFRA would be held to encompass personal capacity damages. 128 F. Supp. 3d 756, 781 n.26 (internal parenthetical omitted). The Court notes that this suggestion comports with its own conclusion above regarding the non-availability of damages under Bivens in connection with the Free Exercise Clause. See § III.C.1. As stated above, the Court finds particularly persuasive the thorough reasoning provided in Tanvir. Thus, even if, as Plaintiff argues, RFRA’s “other person acting under color of law” language were interpreted to mean that a RFRA claim may be asserted against an individual (an issue which the Court need not reach here), the Court finds that such a claim would be limited to non-monetary relief. Because RFRA’s “appropriate relief” language does not include damages, and because damages is the only remedy sought by Plaintiff against the individual Defendants, this claim fails. See Am. Compl. [#29] at 59. Accordingly, the Court finds that there is no damages remedy under RFRA, and therefore the Court recommends that Claim Two be dismissed with prejudice to the extent it is asserted against the individual defendants. Reynoldson, 907 F.2d at 127. 3. Fifth Amendment: Equal Protection Claim Plaintiff argues that Defendants Berkebile, Oliver, Hall, Parry, and Knox in their individual capacities violated his right to equal protection under the Fifth Amendment.18
18 The Court recommended in Section III.B.1. above that all claims as to Defendant True (who was sued only in his official capacity) be dismissed. Therefore, the Fifth Amendment claim
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See Am. Compl. [#29] ¶ 400-14. Plaintiff’s allegations regarding the Sunnah Fasts have no connection to this claim. See id. Plaintiff’s Fifth Amendment claim regarding Halal meals is asserted here only against Defendants BOP and True, and thus has been fully addressed above in Section III.B.2.d. See id. ¶¶ 403-04. Plaintiff’s Fifth Amendment claim regarding access to an Imam is only asserted as to Defendants Berkebile and Hall.19 See id. ¶¶ 405-08. Plaintiff’s Fifth Amendment claim regarding group prayer is only asserted as to Defendants Berkebile, Oliver, Hall, Knox, and Parry.20 See id. ¶¶ 409-11.
These Defendants assert qualified immunity as to this claim. A government official is entitled to qualified immunity from liability for civil damages when his or her allegedly unlawful conduct did not violate any of the plaintiff’s statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official’s position. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (stating that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”). The Supreme Court has stated that “[f]or executive officials in general . . . our cases make plain that qualified immunity represents the norm.” Id. at 807. Thus, a government official is entitled to qualified immunity in “[a]ll but the most exceptional cases.”
as to Defendant True is not here addressed in the absence of an individual capacity claim against him. Further this claim was also originally asserted against Defendant Johnson, who was voluntarily dismissed by Plaintiff on December 4, 2015. See Notice of Voluntary Dismissal [#45].
19 To the extent this claim implicates access to an Imam and was asserted against Defendants BOP and True in his official capacity, it has been resolved above in Section III.B.
20 Similarly, to the extent this claim implicates group prayer and was asserted against Defendants BOP and True in his official capacity, it has been resolved above in Section III.B.
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Harris v. Bd. of Educ. of the City of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997). “The relevant, dispositive inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable [government official] that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (citing Wilson v. Layne, 526 U.S. 603, 615 (1999). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or [Court of Appeals for the] Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992), overruled in part on other grounds by Williams v. City & Cty. of Denver, 99 F.3d 1009, 1014-15 (10th Cir. 1996).
a. Access to an Imam The basis of the Fifth Amendment claim regarding access to an Imam as to Defendants Berkebile and Hall is that, “[i]n 2013, on the rare occasions [Plaintiff] was afforded the opportunity to meet with an Imam, Defendants Berkebile and Hall mandated that the Imam speak with him outside the double cell doors.” Am. Compl. [#29] ¶ 406. Plaintiff states that, “[b]y the end of 2013, [Plaintiff] had no interactions with an Imam for eight months,” meaning that the events underlying this claim against Defendants Berkebile and Hall must have occurred within about the first four months of 2013. Id. ¶ 270. Defendants argue that this portion of Plaintiff’s Fifth Amendment claim is barred by the statute of limitations, and Plaintiff concedes in his Response that constitutional claims arising before October 9, 2013, are barred by the statute of limitations. Motion [#65] at 7-8, 8 n.3; Response [#72] at 8. Accordingly, the Court recommends that this portion of Plaintiff’s Fifth Amendment
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claim regarding access to an Imam asserted against Defendants Berkebile and Hall in their individual capacities be dismissed with prejudice. Reynoldson, 907 F.2d at 127.
b. Group Prayer Plaintiff’s Fifth Amendment claim regarding group prayer is asserted as to Defendants Berkebile, Oliver, Hall, Knox, and Parry. Am. Compl. [#29] ¶¶ 409-12. The Court has already determined above in Section III.B.2.d. that Plaintiff has adequately alleged an equal protection claim as to Defendant BOP, thus the issues here are (1) whether Plaintiff has adequately alleged the personal participation of these five Defendants in that violation and, if so, (2) whether that constitutional right was clearly established at the time of their participation. Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, a plaintiff must show that each defendant caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Defendants argue that the allegations against them are too generalized to allow for a finding of personal participation. Motion [#65] at 12-13, 21-22, 25. The Court disagrees. Plaintiff does not simply broadly assert, for example, that all Defendants violated his constitutional rights in unspecified ways. Rather, while the allegations here could have been more specific, Plaintiff alleges that Defendants Berkebile, Oliver, Hall, Knox, and Parry each threatened him, and other Muslim inmates, with disciplinary action if they engaged in prayer with any other prisoners. Am. Compl. [#29] ¶¶ 305-08, 311-12. Plaintiff also alleges that these five Defendants each allowed those of other faiths to pray with their respective clergypersons and to pray with
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other prisoners in the area outside of the prisoners’ cells. Id. ¶¶ 313-14. The Court finds these allegations adequate to establish personal participation by these five Defendants.
Regarding whether the constitutional right was clearly established, the Court finds Defendants’ statement of the issue to be inaccurate: “As to the sub-claim regarding group prayer, Defendants are entitled to qualified immunity because no law would have put every reasonable officer on notice that it would be unlawful to prohibit inmates from engaging in group activities that are potentially disruptive to both staff, who are tasked with ensuring the safety and security of the institution, and other inmates.” Motion [#65] at 21. First, although Defendants characterize Plaintiff’s proposed group prayer sessions as “disruptive,” id., Plaintiff has not provided allegations in the Amended Complaint that could reasonably be construed to assert that the group prayer would be disruptive. See, e.g., Am. Compl. [#29] ¶¶ 300-03, 306, 315; Barnes, 783 F.3d at 1191-92 (stating that all wellpled allegations from the complaint are accepted as true and viewed in the light most favorable to the plaintiff). Rather, the issue is whether it was clearly established that Defendants were not permitted to deny equal protection to Plaintiff on the basis of his religion, which has long been clearly established. See, e.g., Aldulhaseeb, 600 F.3d at 1322 n.10; Tennyson, 558 F. App’x at 820. Of course, after discovery, the issue of whether the difference in treatment was reasonably related to a legitimate penological purpose (such as security concerns and/or disruptiveness) will be relevant. See Tennyson, 558 F. App’x at 820. However, at this early stage of the case, the Court finds that Plaintiff has alleged sufficient facts to overcome these Defendants’ assertion of qualified immunity.21
21 Defendants may, of course, raise this defense again at the summary judgment stage.
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Accordingly, the Court recommends that Defendants’ request to dismiss this portion of Plaintiff’s Fifth Amendment claim regarding group prayer asserted against Defendants Berkebile, Oliver, Hall, Knox, and Parry in their individual capacities be denied.
IV. Conclusion For the foregoing reasons, IT IS HEREBY RECOMMENDED that the United States’ Motion [#63] be GRANTED, that the Official Capacity Motion [#64] be GRANTED in part and DENIED in part, and that the Individual Capacity Motion [#65] be GRANTED in part and DENIED in part, and that Defendants True, Lamb, Camacho, McCoic, Morrow, Castle, Henderson, Crank, Huddleston, and the United States be dismissed from this lawsuit.22 IT IS ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party’s failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
22 If this Recommendation is adopted in full, the following claims will remain: (1) First Amendment against Defendant BOP; (2) RFRA against Defendant BOP; and (3) Fifth Amendment against Defendants BOP, Berkebile, Oliver, Hall, Knox, and Parry.
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Case 1:15-cv-00992-RBJ-KLM Document 97 Filed 08/30/16 USDC Colorado Page 64 of 64 Cir. 1996). Dated: August 30, 2016
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 Case 1:15-cv-00992-RBJ-KLM Document 111 Filed 10/25/16 USDC Colorado Page 1 of 18
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No 15-cv-00992-RBJ-KLM
AHMAD AJAJ,
Plaintiff,
v.
UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; WARDEN BILL TRUE, in his official capacity; WARDEN JOHN OLIVER, in his individual capacity; WARDEN DAVID BERKEBILE, in his individual capacity; ASSOCIATE WARDEN TARA HALL, in her individual capacity; ASSOCIATE WARDEN CHRIS LAMB, in his official and individual capacity; PHYSICIAN ASSISTANT RONALD CAMACHO, in his individual capacity; MEDICAL STAFF SAMANTHA MCCOIC, in her individual capacity; MEDICAL STAFF K. MORROW, in her official and individual capacity; CHAPLAIN MICHAEL CASTLE, in his official and individual capacity; CHAPLAIN JASON HENDERSON, in his official and individual capacity; RELIGIOUS COUNSELOR GEORGE KNOX, in his individual capacity; INMATE TRUST FUND SUPERVISOR KENNETH CRANK, in his official and individual capacity; NURSE ROGER NUDDLESTON, in his official and individual capacity, and OFFICER D. PARRY, in his official and individual capacity
Defendants.
ORDER
This matter is before the Court on defendant United States’ Motion to Dismiss [ECF No.
63], the Motion to Dismiss Official-Capacity Claims filed by all defendants except for the United
States [ECF No. 64], the Motion to Dismiss Individual-Capacity Claims also filed by all
defendants except for the United States [ECF No. 65], and the recommendation of Magistrate
Judge Kristen L. Mix [ECF No. 97]. Judge Mix recommends that this Court grant the United
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States’ motion, and grant in part and deny in part the other two motions. ECF No. 97 at 2. Her recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). After a de novo review of the portions of the recommendation to which the parties object, see id., the Court ADOPTS in full Judge Mix’s recommendation. Accordingly, the Court GRANTS the United States’ Motion to Dismiss [ECF No. 63], and GRANTS IN PART and DENIES IN PART defendants’ other two motions [ECF No. 64 and 65]. The Court likewise DENIES plaintiff’s request for oral argument. See ECF No. 101.
I. FACTS On May 11, 2015 plaintiff Ahmad Ajaj, a Muslim prisoner in solitary confinement at the U.S. Penitentiary Administrative Maximum Security prison (“ADX”) in Florence, Colorado, filed suit against the Federal Bureau of Prisons (“BOP”) and Warden John Oliver. ECF No. 1 (Complaint). Plaintiff alleged that these defendants violated (1) his First Amendment right to free exercise of religion and (2) the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb, by refusing to distribute his medications to him before dawn and after sunset so that he could maintain his religious fast during the Islamic holy month of Ramadan in 2013 and 2014. Id. at ¶¶8–53. Alleging that those defendants violated his rights in the past, plaintiff sought an injunction to prevent them from doing the same during the coming month of Ramadan in 2015. See id. In addition, plaintiff sought declaratory relief. Id. Several months later on October 9, 2015 plaintiff amended his Complaint to add a number of additional defendants, including the United States and several individual employees of the BOP. See ECF No. 29 (Amended Complaint). Plaintiff also added several new allegations that the BOP and its employees: (1) refused to provide plaintiff his medication and
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meals before dawn and after sunset during the Islamic Sunnah fast;1 (2) failed to provide plaintiff with Halal-certified meals with Halal meat; (3) prevented plaintiff from having access to an imam; and (4) refused to allow plaintiff to participate in group prayer with other Muslim inmates. ECF No. 97 at 3–9.
Based on those allegations and plaintiff’s original allegations, plaintiff added a number of additional claims in his Amended Complaint. These included: (1) additional First Amendment violations by the BOP and various individual defendants (Claims One); (2) additional RFRA violations by the BOP and various individual defendants (Claims Two); (3) a claim for an alleged violation of the Federal Tort Claims Act (“FTCA”) by the United States (Claim Three); (4) and claims for alleged Fifth Amendment equal protection violations by the BOP and various individual defendants (Claim Four).2 See ECF No. 29 at ¶¶317–414.
II. STANDARD OF REVIEW A. Magistrate Judge Recommendation. When a magistrate judge makes a recommendation on a dispositive motion, the district court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). “In the absence of timely objection, the district court may review a magistrate [judge’s] report under any standard it deems appropriate.”
1 Sunnah refers to additional fasts that many Muslims adhere to if they cannot participate in the religiously-mandated pilgrimage to Mecca. ECF No. 29 at ¶¶69–74. These fasts take place on Mondays and Thursdays, as well as a few other holy days throughout the year. See id. at ¶74. 2 Claim One names the BOP and the individual defendants Berkebile, Oliver, True, Hall, Lamb, Camacho, Morrow, Huddleston, Castle, Henderson, Knox, and Crank. Claim Two names the BOP and individual defendants Berkebile, Oliver, True, Hall, Lamb, Camacho, Morrow, McCoic, Huddleston, Castle, Crank, Henderson, Knox, and Parry. Claim Three only names defendant United States. Claim Four names the BOP and individual defendants Berkebile, Oliver, True, Hall, Parry, and Knox. ECF No. 29 at ¶¶317–414.
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Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)).
B. Rule 12(b)(6). To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). Importantly, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted); accord Robbins v. Okla. ex. rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (internal citation omitted).
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III. ANALYSIS For ease of analysis, I review Judge Mix’s recommendations and the parties’ objections as they pertain to each of plaintiff’s four claims contained within plaintiff’s Amended Complaint.
A. Plaintiff’s Claim One (First Amendment). Plaintiff’s Claim One raises three allegations of violations of plaintiff’s First Amendment right to free exercise of religion: (1) defendants’ failure to distribute plaintiff’s medication before dawn and after sunset during Ramadan and Sunnah fasts; (2) defendants’ failure to provide plaintiff with a Halal diet; and (3) defendants’ failure to provide plaintiff with meaningful access to an imam on a weekly basis.3 ECF No. 29 at ¶¶317–333; ECF No. 97 at 17. Plaintiff maintains two sets of claims based on those three allegations: (i) against various individual defendants in their individual capacities for monetary relief; and (ii) against the BOP for injunctive relief.4 See id. Defendants seek dismissal of both claims. I address each in turn.
1. First Amendment Individual Capacity Claims for Damages Against Individual Defendants.
Defendants first argue for dismissal of the First Amendment individual capacity claims because: (1) there is no Bivens remedy under the First Amendment, and (2) even if there was, defendants are entitled to qualified immunity because plaintiff failed to state a claim. ECF No. 65 at 8–18. Agreeing with defendants’ first argument that courts do not recognized a Bivens
3 As Judge Mix points out, plaintiff’s First Amendment claim against defendants regarding the timing of his medication also briefly mentions the timing of his meal delivery. ECF No. 97 at 20. However, the Court agrees with Judge Mix that the “thrust of this claim is clearly the timing of [plaintiff’s] medication intake[,]” meaning that there is no separate claim regarding meal timing and that plaintiff’s arguments on that issue are inapplicable. Id.; ECF No. 29 at 58–59 (Prayer for Relief mentioning only medication timing). 4 As Judge Mix’s recommendation acknowledges, plaintiff has voluntarily dismissed all of its official capacity claims against individual defendants that are contained in Claim One, Claim Two, and Claim Four. ECF No. 97 at 16. Accordingly, the Court dismisses those claims. The Court also dismisses defendant Warden Bill True from the lawsuit because plaintiff only asserted official capacity claims against him. See id. at 17.
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claim for alleged First Amendment violations, Judge Mix recommends that defendants’ motion to dismiss the individual capacity claims be granted on plaintiff’s First Amendment claims. ECF No. 97 at 44–50 (citing Iqbal, 556 U.S. at 675 wherein the Court explicitly refused to find that a prisoner can bring a First Amendment claim for damages). After de novo review, I agree with Judge Mix’s reasoning and adopt this recommendation.
Plaintiff nevertheless objects, arguing that: (1) the Court should find a Bivens remedy because any alternative remedies are purely prospective and inadequate since they do not provide for damages; and (2) that deference to prison officials does not qualify as a special factor justifying a refusal to create a Bivens remedy. ECF No. 101 at 8–11.
Disagreeing with both points, I first note that plaintiff does not need a Bivens claim to obtain the “unique” remedy of monetary damages because, as Judge Mix acknowledges, plaintiff can obtain monetary damages for his claims alleging violations of the Fifth Amendment. See ECF No. 97 at 47. Furthermore, plaintiff’s second argument is unavailing because the “threshold” for “a factor counseling hesitation” to creating a Bivens remedy is “remarkably low[,]” and I conclude that deference to prison officials surely meets that exceedingly low threshold. See Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009). Accordingly, I adopt Judge Mix’s recommendation and DISMISS plaintiff’s First Amendment individual capacity claims with prejudice.
2. First Amendment Claims Against the BOP for Injunctive Relief. Defendants next argue for dismissal of plaintiff’s First Amendment claims against the BOP.5 They contend: (1) that plaintiff’s claim dealing with medication administration during Ramadan and Sunnah are moot; and (2) that plaintiff has not otherwise stated a claim with his 5 All of defendants’ arguments for dismissal of plaintiff’s claims against the BOP are contained within their motion to dismiss the official capacity claims. See ECF No. 64.
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remaining allegations. ECF No. 64 at 9–19. Agreeing in part with defendants’ first argument, Judge Mix recommends that plaintiff’s First Amendment claim against the BOP based on the government’s administration of medication during Ramadan be dismissed as moot because ADX’s revised pill line procedures comply with plaintiff’s requests.6 ECF No. 97 at 21. Nevertheless, she concludes that plaintiff has stated a claim and recommends that defendants’ motion be denied with respect to the remaining allegations: (i) the BOP’s failure to provide medications at certain times during Sunnah fasts; (ii) a lack of access to a Halal diet with Halal meat; and (iii) a lack of access to an imam. After a de novo review, I agree with Judge Mix’s recommendations.
Plaintiff nevertheless objects to Judge Mix’s conclusion about the mootness of the Ramadan claim. ECF No. 101 at 5. He argues that the Court can still provide relief because the BOP might transfer him to another prison that does not have ADX’s revised procedures, and that even if the claim is moot, the “voluntary cessation” exception to the mootness doctrine applies. Id. at 5–7. I disagree with both arguments.
First, I find plaintiff’s argument about potential transfer unconvincing because it is purely speculative. See Hall v. Beals, 396 U.S. 45, 49 (1969) (rejecting “speculative contingencies” as a basis for continuing an otherwise moot controversy). Furthermore, I find that the “voluntary cessation” exception does not apply here because I determine that there are no “clear showings” of a “desire” by the BOP “to return to the old ways.” See Brown v. Buhman, 822 F.3d 1151, 1167 (10th Cir. 2016).
6 As Judge Mix correctly points out, the Court can examine evidence outside the Complaint on a motion to dismiss when the issue is subject matter jurisdiction (mootness). ECF No. 97 at 21 n.7 (citing Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000)). Thus, the Court can examine the Declaration of Clay C. Cook, see ECF No. 26-1, that defendants cite as part of their argument about ADX’s new pill line procedures. See id.
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Defendants also object to Judge Mix’s recommendation to deny defendants’ motion with respect to plaintiff’s other First Amendment allegations against the BOP. ECF No. 106 at 5. They contend that plaintiff has failed to state a claim because he neither adequately alleges facts showing a “substantial burden” on his sincerely held religious beliefs nor alleges facts showing that the BOP’s alleged restrictions are not “reasonably related to legitimate penological objectives.” Id. at 5–10; Kay v. Bemis, 500 F.3d 1214, 1218–19 (10th Cir. 2007) (describing this “two-step inquiry”).
However, like Judge Mix I find that based on the following allegations within his Amended Complaint, plaintiff has in fact sufficiently pled “substantial burdens” on his religious beliefs: (1) that the BOP consistently denied his request for a fully Halal diet, and that ADX’s other meals do not suffice, see, e.g., ECF No. 29 at ¶¶190–91, 194; (2) that he has routinely made requests to visit with an imam that the BOP, with one exception, has denied, see, e.g., id. at ¶¶247–48, 253, 272, 280–89; 345–54; and (3) that the BOP’s refusal to provide him meals and medication before dawn and after sunset during Sunnah fasts forces him to choose between practicing his religion and suffering the ill effects of not eating or taking medication, see, e.g., id. at ¶¶176–78.
Furthermore, I agree with Judge Mix that plaintiff has adequately alleged that the BOP’s restrictions may not be “reasonably related to legitimate penological objectives.” See Al-Owhali v. Holder, 687 F.3d 1236, 1241 (10th Cir. 2012). For instance, plaintiff alleges: (1) that despite his many inquiries, the BOP has not provided him any reason why it cannot provide a Halal diet, ECF No. 29 at ¶¶201–03, 223–24; (2) that the BOP has routinely denied him visits with the Imam for no reason and that they have placed certain restrictions on his meetings with the Imam that do not appear to be placed on other inmates’ visits, id. at ¶¶ 265–66, 268; and (3) that the
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BOP is willing and able to accommodate his fast during Ramadan but not during Sunnah, see id. at ¶181. I therefore find that plaintiff has stated First Amendment claims with these allegations.
The Court therefore ADOPTS Judge Mix’s recommendation in its entirety with respect to Claim One. Defendants’ motion to dismiss the individual capacity claims [ECF No. 65] is therefore GRANTED and those claims are dismissed with prejudice. In addition, defendants’ motion to dismiss the claims against the BOP [ECF No. 64] is GRANTED IN PART and DENIED IN PART. Accordingly, plaintiff’s claim regarding medication distribution during Ramadan is dismissed without prejudice. See Brown, 822 F.3d at 1179 (dismissal based on mootness must be without prejudice).
B. Plaintiff’s Claim Two (RFRA). Plaintiff’s second claim in his Amended Complaint raises four allegations of behavior by defendants allegedly in violation of RFRA: (1) defendants’ failure to distribute plaintiff’s medication before dawn and after sunset during Sunnah fasts; (2) defendants’ failure to provide plaintiff with a Halal diet; (3) defendants’ failure to provide plaintiff with meaningful access to an imam on a weekly basis; and (4) defendants’ failure to allow plaintiff to pray five times daily with at least one other Muslim inmate. ECF No. 97 at 17. Once again, plaintiff maintains two sets of claims based on those four allegations: (i) against certain individual defendants in their individual capacities for monetary relief; and (ii) against the BOP for injunctive relief. Defendants seek dismissal of both. I address each in turn.
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1. RFRA Individual Capacity Claims Against Individual Defendants for Damages.
Defendants argue for dismissal of the individual capacity claims contained within Claim Two because they assert that there are no damages available for RFRA violations. ECF No. 65 at 18–22. Judge Mix agrees, reasoning that the “appropriate relief” clause within RFRA that spells out remedies under that law should be interpreted to permit only those remedies that exist at law for violations of the Free Exercise Clause. ECF No. 97 at 51–58 (citing cases interpreting RFRA as well as interpretations of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), which Congress passed after RFRA to address some of the issues RFRA created). Having already found that no Bivens claim exists for damages for alleged violations of First Amendment rights, Judge Mix recommends that defendants’ motion to dismiss the individual capacity RFRA claims likewise be granted and those claims dismissed with prejudice. Id. at 58. After de novo review, I agree with Judge Mix and adopt her recommendation.
Plaintiff nevertheless objects, arguing that Judge Mix: (1) wrongly interpreted RFRA’s “appropriate relief” clause; (2) failed to consider substantial authority against her position; and (3) failed to consider Congressional intent behind RFRA.7 ECF No. 101 at 11–14. However, plaintiff’s arguments do not persuade me to his side. First, I find Judge Mix’s narrower interpretation of RFRA’s “appropriate relief” clause correct and in line with several other district courts. See ECF No. 97 at 55–58 (citing, for example, Tanvir v. Lynch, 128 F. Supp. 3d 756, 774–81 (S.D.N.Y. 2015)).
7 In addition to the arguments he makes in his Objection, plaintiff has also filed a Notice of Filings of Supplemental Authority, see ECF No. 110, which directs the Court’s attention to a Third Circuit case decided on October 11, 2016 that recognized damages against individual capacity defendants under RFRA, see Mack v. Warden Loretto FCI, 2016 WL 5899173, at *10 (3d Cir. 2016). Judge Mix’s wellreasoned recommendation, however, addresses the argument in favor of finding a damages remedy under RFRA that the Third Circuit makes in that case, see ECF No. 97 at 54–58, and, in my opinion, Judge Mix persuasively rejects it in favor of a narrower reading of the “appropriate relief” clause.
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Second, Judge Mix does in fact consider cases that come out the other way, quoting and analyzing them at length in her recommendation. See, e.g., ECF No. 97 at 54. Finally, Judge Mix does consider Congressional intent extensively, see id. at 51, but finds that it cuts against plaintiff’s arguments, not in their favor, id. at 53, 58. Finding her reasoning persuasive, the Court adopts Judge Mix’s recommendation with respect to the individual capacity RFRA claims and DISMISSES them with prejudice.
2. RFRA Claims Against the BOP for Injunctive Relief. Defendants also argue for dismissal of the claims against the BOP contained within Claim Two because they assert that: (1) plaintiff fails to state a claim under RFRA based on his contention that ADX must hire an imam; (2) plaintiff’s other allegations do not plausibly allege a “substantial burden;” (3) plaintiff has not plausibly alleged the absence of a “compelling interest;” and (4) plaintiff has not sufficiently alleged there are “less-restrictive means” regarding his group prayer claim. ECF No. 64 at 10–14. Judge Mix finds, however, that three allegations within plaintiff’s RFRA claim—that (1) the BOP failed to provide medication at certain times during Sunnah, (2) failed to provide a Halal diet with Halal meat, and (3) prevented plaintiff from having access to an imam—all meet the “substantial burden” requirement because they meet that standard under the First Amendment. ECF No. 97 at 35. She also finds that the final aspect of plaintiff’s claim (i.e. that the BOP prevents plaintiff from engaging in daily group prayer) likewise qualifies as a “substantial burden” under the Tenth Circuit’s recent analysis of that standard in Williams v. Wilkinson. Id. at 34–35 (citing 645 F. App’x 692, 701–03 (10th Cir. 2016)). Furthermore, Judge Mix finds that plaintiff has plausibly pled both the absence of a compelling interest and that there are less-restrictive means because he sufficiently demonstrates that the BOP’s actions with
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respect to that final allegation may not be reasonably related to legitimate penological interests. Id. at 36–38. She therefore recommends that defendants’ motion be denied with respect to the claims against the BOP contained within Claim Two. Id. at 38. After de novo review, I agree with Judge Mix’s reasoning and adopt her recommendation.
Defendants nevertheless object and argue that: (1) Judge Mix’s recommendation with respect to the RFRA claims against the BOP does not address the Tenth Circuit’s decision in Abdulhasseb v. Calbone, 600 F.3d 1301, 1320 (10th Cir. 2010), which held that the RLUIPA does not affirmatively subsidize religion; (2) plaintiff has not plausibly alleged a “substantial burden” for his fasting or diet claims; (3) plaintiff has not plausibly alleged the absence of compelling interests; and (4) plaintiff has not plausibly alleged less-restrictive means with respect to his group prayer claim. ECF No. 106 at 10–14. The Court finds all of these arguments unconvincing.
First, I find defendants’ argument about the Tenth Circuit’s decision in Abdulhasseb beside the point. The plaintiff in that case argued that the government’s policy of spending money for secular needs rather than religious needs itself violates RLUIPA. Abdulhasseb, 600 F.3d at 1230. By contrast, much of what constitutes plaintiff’s allegation here is that the government violated RFRA by preventing him from seeing the imam the government already provided to inmates at the prison, or that the government put undue restrictions on his ability to communicate with that religious official. See, e.g., ECF No. 29 at ¶¶261–66. I also agree with Judge Mix that plaintiff has alleged a “substantial burden” for his fasting and diet claims, see supra Part III.A.2, the absence of compelling interests behind the government’s policies, see id., and that the government’s policy regarding group prayer may not be the least-restrictive means
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of furthering a compelling security interest, see ECF No. 29 at ¶313 (alleging that the BOP allows prisoners of other religions to engage in group prayer).
Accordingly, I ADOPT in full Judge Mix’s recommendation on Claim Two. The Court therefore GRANTS defendants’ motion to dismiss the individual capacity claims contained within Claim Two [ECF No. 65] and DISMISSES those claims with prejudice. Furthermore, the Court DENIES defendants’ motion to dismiss the RFRA claims against the BOP [ECF No. 64].
C. Plaintiff’s Claim Three For Damages (FTCA). In Claim Three, plaintiff alleges a violation of the FTCA by the United States. ECF No. 29 at ¶¶391–99. Plaintiff argues that the United States violated the FTCA when the BOP and its employees allegedly failed to provide plaintiff with his medication at certain times during Ramadan in 2014, which caused plaintiff physical injury. Id. Defendant United States, however, argues that dismissal of that claim is appropriate for three reasons: (1) plaintiff failed to file a certificate of review as required by C.R.S. § 13-20-602; (2) to the extent plaintiff’s FTCA claim alleges medical malpractice, the Court lacks jurisdiction; and (3) that plaintiff failed to exhaust his administrative remedies. ECF No. 63 at 5–13. Reasoning that plaintiff’s claim relates back to his initial Complaint, which plaintiff filed before the BOP affirmed its denial of plaintiff’s administrative FTCA claim, Judge Mix agrees with the United States’ third argument that plaintiff has failed to exhaust administrative remedies. ECF No. 97 at 12–16. She therefore recommends that the United States’ motion to dismiss [ECF No. 63] be granted. Id. at 16. After de novo review, I once again adopt Judge Mix’s recommendation. Plaintiff nevertheless objects that Judge Mix’s recommendation makes two errors. First, plaintiff argues that Judge Mix improperly applied the Rule 15(c)(1)(B) standard for when a claim relates back because that standard only applies for the “offensive” purpose of defeating a
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statute of limitations. ECF No. 101 at 2–3. Second, he argues that even if that standard applies, a tort claim based on new facts against a new defendant does not relate back. Id. at 2.
However, I find that plaintiff is the one who errs in two respects. First, I note that the relation back standard of Rule 15(c)(1)(B) can apply “defensively” for purposes of administrative exhaustion as I previously held in a case involving plaintiff. See, e.g., Ajaj v. Fed. Bureau of Prisons, No. 08-CV-02006-RBJ-MJW, 2012 WL 1020487, at *6 (D. Colo. Mar. 27, 2012), aff’d, 561 F. App’x 657 (10th Cir. 2014). Second, I find that the factual bases underlying both plaintiff’s FTCA claim and his initial Complaint—i.e. the government’s alleged failure to provide plaintiff’s medication at the times he requested during Ramadan 2014—are “virtually identical.” See id. I therefore adopt Judge Mix’s recommendation and GRANT defendant United States’ motion to dismiss Claim Three. Accordingly, that claim is DISMISSED without prejudice.
D. Plaintiff’s Claim Four (Fifth Amendment). Finally, plaintiff asserts Fifth Amendment Equal Protection causes of action based on defendants’ alleged failures to: (1) provide access to an imam; (2) provide a Halal diet; and (3) allow Muslims to participate in group prayer. ECF No. 29 at ¶¶400–414. Plaintiff maintains a claim against individual defendants based on allegations (1) and (3), and against the BOP based on all three allegations.8 See id. Defendants seek to dismiss both. Once again, I address each in turn.
8 Plaintiff also maintains all three allegations against defendant True in his official capacity. ECF No. 29 at ¶¶400–414. As mentioned before, however, plaintiff has voluntarily dismissed all of his official capacity claims. See supra n.4.
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1. Fifth Amendment Individual Capacity Claims. Defendants argue for dismissal of plaintiff’s Fifth Amendment individual capacity claims because they argue that the individual defendants named within each claim are entitled to qualified immunity. ECF No. 65 at 22–25. Specifically, they argue for qualified immunity because: (1) plaintiff fails to state a claim; (2) plaintiff fails to allege a violation of a Constitutional right or a clearly established right; and (3) plaintiff has failed to allege facts showing that certain individual defendants had personal participation. Id. Regarding plaintiff’s claim against defendants Berkebile and Hall for a failure to provide access to an imam, Judge Mix reasons that that allegation is premised on events that necessarily occurred within the first four months of 2013 and as such, is barred by the statute of limitations. ECF No. 97 at 60–61 (citing ECF No. 29 at ¶406); ECF No. 65 at 7–8, 8 n.3; ECF No. 72 at 8. She therefore recommends that defendants’ motion to dismiss [ECF No. 65] be granted with respect to that claim. ECF No. 97 at 60–61. Moving on to plaintiff’s cause of action against defendants Berkebile, Oliver, Hall, Knox, and Parry for failing to allow Muslims group prayer, Judge Mix concludes that plaintiff has pled sufficient facts to overcome qualified immunity. See id. at 61–63. She thus recommends that defendants’ motion be denied with respect to that claim. See id. After de novo review, I agree with both of Judge Mix’s recommendations and adopt them. First, I agree with Judge Mix’s conclusion that the events underlying plaintiff’s access to an imam allegation against defendants Berkebile and Hall necessarily occurred in early 2013 and are barred by the statute of limitations. ECF No. 29 at ¶406. After all, despite plaintiff’s objection that Judge Mix’s recommendation ignores plaintiff’s accusations that he was denied access to an imam in 2014 and 2015, see ECF No. 101 at 14, plaintiff’s Amended Complaint
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only alleges that defendants Berkebile and Hall personally participated in such discriminatory conduct in early 2013, see ECF No. 29 at ¶406. I therefore adopt Judge Mix’s recommendation on that allegation and grant the individual defendants’ motion to dismiss it [ECF No. 65].
Furthermore, regarding plaintiff’s Claim Four group prayer allegation, I agree with Judge Mix that plaintiff has adequately stated a claim. See ECF No. 61–62 (finding that plaintiff has alleged personal participation and the violation of a “clearly established” constitutional right). Thus, I deny defendants’ motion to dismiss with respect to that claim.
Defendants object to the latter recommendation, arguing that the Court should refrain from implying a Bivens remedy for plaintiff’s Fifth Amendment equal protection claim. ECF No. 105 at 13–15. However, as plaintiff points out, defendants raise this issue for the first time in their Objection. ECF No. 108 at 13. Accordingly, I find that under Tenth Circuit precedent, defendants have waived it. See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”). The Court therefore adopts in full Judge Mix’s recommendations with respect to plaintiff’s Fifth Amendment individual capacity claims. Plaintiff’s claim against defendants Berkebile and Hall for allegedly failing to provide access to an imam is therefore DISMISSED with prejudice.
2. Fifth Amendment Claims Against the BOP. Lastly, defendants argue for dismissal of all three of plaintiff’s Fifth Amendment claims against the BOP because they contend he fails to allege that: (1) he was similarly situated to other inmates; (2) that other inmates received different treatment; and (3) any difference in treatment was not reasonably related to legitimate penological goals. ECF No. 64 at 24–25. Reasoning that plaintiff sufficiently alleged (1) and (2), and was not obligated to make allegation
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(3), Judge Mix concludes that plaintiff has met the standard for plausibly stating an equal protection claim. ECF No. 97 at 38–41. She therefore recommends that defendants’ motion to dismiss be denied with respect to the Equal Protection cause of action against the BOP. Id. After de novo review, I agree with Judge Mix’s reasoning and adopt her recommendation.
Defendants nevertheless object that: (1) Judge Mix’s recommendation erroneously concluded, based on the Tenth Circuit’s decision in Tennyson v. Carpenter, 558 F. App’x 813, 819–20 (10th Cir. 2014), that plaintiff need not allege facts to show that the government treated “similarly situated” individuals differently; (2) that plaintiff’s vague and conclusory allegations do not establish that plaintiff is similarly situated “in all relevant respects” to others; (3) that plaintiff’s group prayer allegation fails in light of ADX’s religious-neutral ban on all congregate prayer; and (4) that there are no allegations that the BOP’s offering of four diets, inability to recruit an imam, and its group prayer restriction evidence an intent to discriminate against plaintiff. ECF No. 106 at 14–15. I find all these arguments wanting.
First, defendants err in construing what Judge Mix held. She did not conclude that under Tennyson plaintiff need not allege any facts to show he was “similarly situated.” See ECF No. 106 at 15. Rather, she correctly points out that plaintiff has pled sufficient facts on that element because Tennyson does not require that plaintiff identify these individuals with more specificity than what he alleges. ECF No. 97 at 40; Tennyson, 558 F. App’x at 820. Furthermore, I find defendants’ second argument unavailing because I agree with Judge Mix that plaintiff sufficiently alleged that he was treated differently than others in the K-unit at ADX. ECF No. 97 at 40 (citing ECF No. 29 at ¶¶192, 257, 259, 313–14). Third, I find defendants’ argument regarding ADX’s neutral ban on congregate prayer misplaced because that ban, as plaintiff points out, specifically refers to formal congregate services, not what plaintiff alleges defendants
17

Case 1:15-cv-00992-RBJ-KLM Document 111 Filed 10/25/16 USDC Colorado Page 18 of 18
prevented him from doing: informal group prayer. ECF No. 26-4 at 2–4 (distinguishing between religious “services, activities, and group meetings[,]” while only stating that “[n]o congregate services will be conducted at ADX”). Finally, I agree with plaintiff that defendants’ sweeping contention that plaintiff fails to allege discriminatory purpose is both erroneous in light of plaintiff’s Amended Complaint and unpersuasive given that defendants make no new arguments for why this is the case. See, e.g. ECF No. 29 at ¶¶59, 192, 257, 413; ECF No. 109 at 14.
ORDER For the reasons above, the Court ADOPTS Magistrate Judge Mix’s recommendation [ECF No. 97]. Accordingly, defendant United States’ motion to dismiss [ECF No. 63] is GRANTED, and both defendants’ motion to dismiss individual claims [ECF No. 65] and defendants’ motion to dismiss official capacity claims [ECF No. 64] are GRANTED IN PART and DENIED IN PART. With no claims left against either of defendant United States or defendant Warden Bill True, those defendants are hereby dismissed from this action. Furthermore, in light of my decision, plaintiff’s request for oral argument is DENIED. DATED this 25th day of October, 2016.
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No 15-cv-00992-RBJ-KLM AHMAD AJAJ,
Plaintiff, v. FEDERAL BUREAU OF PRISONS; WARDEN JOHN OLIVER, in his individual capacity; WARDEN DAVID BERKEBILE, in his individual capacity; ASSOCIATE WARDEN TARA HALL, in her individual capacity; RELIGIOUS COUNSELOR GEORGE KNOX, in his individual capacity; and OFFICER D. PARRY, in his individual capacity,
Defendants.
ORDER
This matter is before the Court on plaintiff’s and individual defendants’ motions to reconsider portions of the Court’s prior order adopting Magistrate Judge Kristen L. Mix’s recommendation, see ECF No. 111.1 See ECF No. 117 (plaintiff’s motion); ECF No. 116 (defendants’ motion). For the reasons below, the Court DENIES plaintiff’s motion but GRANTS defendants’ motion.
I. BACKGROUND The background of this dispute has been extensively addressed. See, e.g., ECF No. 97 at 2–9; ECF No. 111 at 2–3. Stated again briefly, this case involves a lawsuit filed on May 11, 2015 by Ahmad Ajaj, a Muslim inmate at the Administrative Maximum Facility (“ADX”) in
1 The Court will refer to the “individual defendants” in this Order simply as “defendants” unless it is distinguishing them from the other current or former defendants in this action.
1

Florence, Colorado. Mr. Ajaj originally filed this lawsuit purely as a means to compel the government to administer to him his medications before sunrise and after sunset during the Islamic holy month of Ramadan. See ECF No. 1. However, in his amended complaint Mr. Ajaj greatly expanded the scope of this action. See ECF No. 29. He alleged that the Federal Bureau of Prisons (“BOP”) and numerous of its employees had violated his First Amendment rights in several additional ways, as well as his Fifth Amendment right to equal protection and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. Id. He also added a claim under the Federal Tort Claims Act (“FTCA”) against the United States. Id.
On February 10, 2016 defendant BOP, defendant United States, and the individual named defendants filed separate motions to dismiss Mr. Ajaj’s amended complaint. ECF Nos. 63, 64, 65. The Court subsequently referred these motions to Magistrate Judge Kristen L. Mix. ECF No. 82. On August 30, 2016 Magistrate Judge Mix recommended in a sixty-four-page order that this Court grant the United States’ motion, and grant in and part and deny in part the remaining two motions to dismiss. ECF No. 97. After de novo review, the Court adopted in full Magistrate Judge Mix’s recommendations on October 25, 2016. See ECF No. 111. The Court accordingly dismissed plaintiff’s First Amendment claims for damages against the individual BOP employees, his First Amendment claim for an injunction against the BOP based on his original Ramadan allegation, his RFRA claims for damages, and his FTCA claim against the United States.2
On November 21, 2016 both plaintiff and the remaining individual defendants filed motions for partial reconsideration of the Court’s order adopting in full Magistrate Judge Mix’s recommendations. ECF Nos. 116, 117. These motions have been fully briefed.
2 The United States was subsequently dismissed from this lawsuit, as were numerous individual named defendants aside from those named in the caption above. See ECF No. 111.
2

II. ANALYSIS After reviewing the parties’ motions, the Court finds that it did not err when it dismissed plaintiff’s First Amendment claims for damages, but that the Court erred when it held that defendants had waived their argument that plaintiff has no Fifth Amendment cause of action for damages. Reaching that argument now, the Court grants defendants’ motion to dismiss those claims.3 I discuss plaintiff’s motion for partial reconsideration first, followed by defendants’ motion. A. Plaintiff’s Motion for Partial Reconsideration. Mr. Ajaj’s motion for partial reconsideration is “narrow.” ECF No. 117 at 2. He asks this Court to reconsider its dismissal of only two of his implied claims for damages under the First Amendment against the individual defendants—i.e. two of plaintiff’s First Amendment “Bivens” claims, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397(1971). These include: (1) his claim premised on the BOP officials’ alleged failures to administer to Mr. Ajaj his medications at certain times so that he can maintain his Ramadan fast; and (2) his related claim concerning his medications and Sunnah fasts.4 See ECF No. 117 at 2. However, because I find that the Court did not err in finding that plaintiff has adequate alternative avenues to redress these alleged wrongs and that, in any event, special factors counsel against recognizing these novel claims, plaintiff’s motion is denied. See, e.g., Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 860 (10th Cir. 2015) (explaining this “two-step analytical framework”).
3 As the Court explained in its prior order, plaintiff maintains two Fifth Amendment claims for damages against the individual defendant—one based on their alleged failure to provide access to an Imam, and one based on their alleged failure to allow Muslim inmates to conduct group prayer. See ECF No. 111 at 14. 4 In its prior order, the Court combined these claims into one. See ECF No. 111 at 5. Here, for ease of analysis, the Court refers to these claims separately.
3

1. Mr. Ajaj has Alternative Remedies for his First Amendment Fasting Claims for Damages.
Plaintiff’s first argument for reconsideration is that the Court erred by suggesting that his Fifth Amendment Bivens claims (contained within Count IV of the amended complaint) were “adequate alternatives” that precluded recognizing the two First Amendment Bivens claims mentioned above (contained within Count I). See ECF No. 117 at 3–4. He points out that since his Fifth Amendment claims do not include these fasting-based factual allegations, that they are not adequate substitutes to redress those alleged wrongs. See id. On this narrow point, the Court agrees: plaintiff’s Fifth Amendment Bivens claims are not adequate alternatives for these specific factual allegations because his Fifth Amendment claims do not appear to contain them, but more importantly because the Court now dismisses those Fifth Amendment claims as well, see infra Part II.B.
Nevertheless, I find that plaintiff’s motion must still be denied because he retains other adequate alternatives besides those Fifth Amendment claims to redress these alleged First Amendment wrongs. Although the Court did not reference these alternatives specifically by name in its prior order, it incorporated Magistrate Judge Mix’s recommendation that explained them well and at great length.5 To briefly summarize two of them, they include: (1) filing a grievance as part of the BOP’s administrative remedy program; and (2) filing a lawsuit for injunctive relief.6 See ECF No. 97 at 43–45; 28 C.F.R. § 542.10(a) (the BOP’s administrative remedy program); K.B. v. Perez, No. 16-1155, 2016 WL 7030320, at *2 (10th Cir. Dec. 2, 2016) (recognizing these two alternatives as “adequate” and precluding the creation of a Bivens claim
5 In her extensive and well-researched recommendation, which the Court reminds plaintiff it incorporated in its prior order and adopted in full, Magistrate Judge Mix also noted numerous other persuasive reasons why the Court should refrain from recognizing these novel claims. See ECF No. 97 at 41–50. 6 Plaintiff has availed himself of both alternative remedies. See, e.g., ECF No. 29 at ¶¶ 199, 212, 273, 282.
4

premised on alleged First or Fifth Amendment violations); accord Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (noting that inmates at private prisons, like those at BOP facilities, “have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program (ARP),” and that injunctive relief and the BOP’s “program provide[] . . . means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring.”).
Mr. Ajaj nonetheless highlights the Tenth Circuit’s recent decision in Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853 (10th Cir. 2016) and its earlier decision in Smith v. United States, 561 F.3d 1090 (10th Cir. 2009), arguing that the Tenth Circuit does not consider either of these two alternatives adequate.7 I’m not convinced. Neither of these decisions analyzed in any depth the adequacy of an injunction or the BOP’s alternative remedy program as alternatives to Bivens liability. Instead, they primarily concerned the adequacy of the Animal Welfare Act and the Inmate Accident Compensation Act as alternative remedial mechanisms to redress alleged Fourth Amendment and Eighth Amendment violations respectively. See, e.g., Big Cats, 843 F.3d at 862; Smith, 561 F.3d at 1099. Neither statute or Amendment is at issue here.
Furthermore, that these cases concerned alleged violations of the Fourth and Eighth Amendments further undermines plaintiff’s argument. The Fourth and Eighth amendments are the “core” of Bivens, which is a doctrine the Tenth Circuit in Big Cats expressly acknowledged the Supreme Court has consistently refused to expand since recognizing those applications and a few other limited ones dissimilar to the claims plaintiff asserts here. See Big Cats, 843 F.3d at
7 Plaintiff contends that the Tenth Circuit’s unpublished opinion in K.B. v. Perez, No. 16-1155, 2016 WL 7030320, at *2 (10th Cir. Dec. 2, 2016), which defendants rely on as evidence that the Tenth Circuit does consider these alternatives adequate, see ECF No. 120, is unpersuasive in light of these published circuit decisions, see ECF No. 131. As described infra, I find that argument unconvincing.
5

858 (“[T]he Court has steadfastly retreated from a broad application of the doctrine, refusing to extend implied causes of action to other constitutional provisions, and cabining the contexts in which it will allow Bivens claims to proceed.”). By contrast, plaintiff’s First Amendment Bivens claims are novel. See, e.g, Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[W]e have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment.”). Thus, the very claims underlying Smith and Big Cat render those decisions inapposite. See Malesko, 534 U.S. at 68 (noting that the Court has refused to “extend Bivens liability to any new context or new category of defendants” since 1980) (emphasis added).
Finally, Smith and Big Cats are unconvincing because their omitted analysis about whether injunctive relief and the BOP’s administrative remedy program are adequate alternative remedies is not difficult to resolve against creating a Bivens remedy. The Supreme Court in Malesko described it well. Explaining that these remedies were available to private prison inmate-plaintiffs as well as to inmates in BOP-run facilities, the Court noted that these remedies “provide[] . . . [a] means through which allegedly unconstitutional actions and policies [by BOP officials] can be brought to the attention of the BOP and prevented from recurring.”8 Malesko, 534 U.S. at 74; see also 28 C.F.R. § 542.10(a); Koprowski v. Baker, 822 F.3d 248, 268 (6th Cir. 2016) (Sutton, J. dissenting). Thus, the Court explained, these remedies are “adequate” because they accomplish the very objective that originally led the Court to establish the Bivens doctrine
8 As the Supreme Court has also noted, in deciding whether an alternative remedial mechanism is “adequate,” courts need not decide whether they are explicitly or implicitly designated as replacements, nor whether they are equally effective as a Bivens remedy might be. See, e.g., Minneci v. Pollard, 132 S. Ct.617, 623–25 (2012). They also need not compensate a plaintiff with monetary damages in order to be adequate alternatives. Big Cats, 843 F.3d at 863.
6

in the first place: deterring unconstitutional behavior by government officials.9 See, e.g., Malesko, 534 U.S. at 70 (“The purpose of Bivens is to deter individual federal officers from committing constitutional violations.”). All of plaintiff’s First Amendment claims for damages were therefore properly dismissed.
2. The “Mootness” of One of Plainitff’s Related Claims for Injunctive Relief does not Warrant the Creation of a Bivens remedy.
Plaintiff next contends that because the Court dismissed as “moot” his claim for injunctive relief against the BOP based its Ramadan pill administration, that his Bivens claim based on that same allegation has no alternative remedial mechanism. ECF No. 117 at 5–7. He therefore argues that his Bivens claim must be allowed to proceed because it is his only remedy to redress that alleged wrong. Id.
Again, I am not convinced. As mentioned above, regardless of whether plaintiff could file a claim for injunctive relief, he has the adequate alternative remedy of the BOP’s administrative remedy program to redress that alleged First Amendment violation. See supra Part II.A.1; see also ECF No. 97 at 41–50 (explaining the additional reasons counseling against recognizing these claims, which the Court adopted in full). Furthermore, because the Court found that plaintiff’s claim for an injunction was moot (due to the BOP’s revision of its pill line procedures to accommodate Muslim inmates’ Ramadan fasts), plaintiff has not only already received the relief he desires, but he also retains the ability to re-file his claim for an injunction should the BOP make this controversy “live” again.
9 To the extent plaintiff argues that his injunctive relief is inadequate because it targets BOP as an entity and not the individual BOP officials carrying out the policy, I note that plaintiff voluntarily dismissed his official capacity claims for injunctive relief against the individual BOP defendants. See ECF No. 71 at 4 n.4.
7

Thus, for inmates in plaintiff’s shoes, it is not “damages or nothing.” See Bivens, 403
U.S. at 410 (Harlan, J. concurring). Far from it.10 Cf. id. (“It will be a rare case indeed in which
an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief
from any court” because unknown federal agents stormed his apartment unannounced); Davis v.
Passman, 442 U.S. 228, 245 (1979) (“Moreover since respondent is no longer a Congressman . .
. equitable relief in the form of reinstatement would be unavailing. And there are available no
other alternative forms of judicial relief.”).
3. “Special Factors” Likewise Warranted Dismissal.
Finally, as the Court noted in its prior order, plaintiff’s motion for reconsideration must
also be denied because “special factors” counsel hesitation before recognizing plaintiff’s First
Amendment Bivens claims. See Big Cats, 843 F.3d at 860 (citing Wilkie v. Robbins, 551 U.S.
537, 550 (2007)); ECF No. 97 at 49–50 (explaining in great detail these special factors); ECF
No. 111 at 6 (incorporating and adopting Magistrate Judge Mix’s analysis on this point).
10 To the extent that Mr. Ajaj contends the Bivens doctrine requires that he have a judicial vehicle as an alternate mechanism to redress any alleged wrongs, I note that there is no such requirement. See, e.g., Chappell v. Wallace, 462 U.S. 296, 304 (1983) (refusing to create a Bivens remedy for a naval service members because “[a]ny action to provide a judicial response . . . would be plainly inconsistent with Congress’ authority in this field.”). Moreover, it has come to the Court’s attention that in the course of his argument, plaintiff appears to argue that an alternative remedy for a Bivens claim is only “adequate” if it affords monetary relief for the past harm allegedly suffered. This misconstrues the law. See Koprowski v. Baker, 822 F.3d 248, 267 (6th Cir. 2016) (Sutton, J. dissenting) (“But the key implication of an alternative remedial scheme is that the pros and cons of that regime suffice from Congress’s perspective, not necessarily the litigant’s perspective.”). A Bivens claim extracts money from individual government officials as a means of preventing or deterring a constitutional harm from reoccurring. See Malesko, 534 U.S. at 70. Whether an alternative remedy is “adequate” is therefore a question of whether that remedy can prevent the constitutional harm of which the plaintiff complains. A Bivens a claim is therefore not a claim to obtain money for money’s sake. See Big Cats, 2016 WL 7187301, at *7 (“[T]here is no need for congruent remedies or even money damages to deny a Bivens remedy[.]”). See also Koprowski, 822 F.3d at 267–68 (Sutton, J. dissenting) (“On several occasions, the Court has held that a Bivens action was precluded by remedies that made ‘no provision for . . . money damages against officials responsible for unconstitutional conduct.’”) (citing Schweiker v. Chilicky, 487 U.S. 412 424 (1988); Bush v. Lucas, 462 U.S. 367, 388 (1983)).
8

Plaintiff nevertheless argues that because the Supreme Court has previously expressed doubt about one of these special factors that the Court chose to reference in its prior order— deference to prison administrators, see Carlson, 446 U.S. at 19—that the Court’s prior order was made in error. 11
Plaintiff’s argument misses the forest for the trees. Regardless of whether or not he is correct that deference to prison officials does not count as a “special factor” in any and all inmate-plaintiff circumstances, the Tenth Circuit has recently and explicitly acknowledged that a separate “special factor” counseling hesitation is that “extending Bivens would be contrary to the strong trend of limiting its reach.” K.B., 2016 WL 7030320, at *2 (citing Minneci v. Pollard, 132 S. Ct. 617, 622 (2012); Malesko, 534 U.S. at 74). That is exactly what plaintiff seeks to do here. See supra. The Court therefore rightly dismissed his claims for that reason alone. 12
Furthermore, as Magistrate Judge Mix similarly noted, see ECF No. 97 at 50; ECF No. 111 at 6, the Supreme Court has acknowledged that fears concerning an “onslaught of litigation” counsel against expanding Bivens, see Wilkie v. Robbins, 551 U.S. 537, 562 (2007) (reasoning that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation” and that “Congress can tailor any remedy to the problem perceived, thus lessening the risk of raising a tide of suits threatening legitimate initiative on the part of the Government’s employees”). The Tenth Circuit has echoed these concerns in a related context. K.B., 2016 WL
11 Plaintiff’s arguments on whether or not “special factors” counsel hesitation assumes that he has no alternative remedies available to him. See ECF No. 117 at 7–8. Because plaintiff does have alternative remedies, see supra, his arguments on this point are additionally unavailing. 12 As an unpublished decision, K.B. is not precedent but may be cited for its persuasive value. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). Furthermore, it is important to point out that the two published Tenth Circuit cases on which plaintiff predominately relies—Big Cats and Smith—did not analyze this “special factor” because those cases mainly concerned alleged Constitutional violations that would not have “extended” Bivens. See Big Cats, 843 F.3d at 856 (Fourth Amendment); Smith, 561 F.3d at 1099 (Eighth Amendment).
9

7030320 at *2 (“Moreover, [expanding Bivens] could lead to unintended, unpredictable, and farreaching consequences, including inviting a wide range of actions by family members of prisoners. Should Congress wish to confer the right to bring such actions, it has the authority to do so; but we decline to imply a cause of action of such potentially broad scope under these circumstances.”).
For all of the reasons discussed above, the Court properly dismissed plaintiff’s novel First Amendment Bivens claims. Plaintiff’s motion for partial reconsideration is accordingly denied.
B. Individual Defendants’ Motion for Reconsideration. The Court next turns to defendants’ motion for partial reconsideration. See ECF No. 116. Defendants argue that the Court erred when it refused to dismiss plaintiff’s Fifth Amendment equal protection Bivens claims. Id. Specifically, they ask this Court to reconsider its decision not to reach the merits of their argument for dismissal—raised for the first time in their objection to Magistrate Judge Mix’s recommendation—that the Court should not recognize these Fifth Amendment Bivens remedies in this novel context. Id. at 4–9. In the alternative, they ask the Court to reconsider its refusal to grant defendants’ motion to dismiss based on qualified immunity. Id. at 9–15. I find defendants’ first argument for reconsideration persuasive. Like the issue of qualified immunity, the lack of a Bivens remedy is a purely legal issue concerning the ability of a plaintiff to state a claim. See K.B., 2016 WL 7030320 at *2 (not reaching the issue of qualified immunity after finding that the plaintiff had no Bivens remedy); see also Big Cats, 843 F.3d at 856 (noting that “whether a Bivens remedy exists . . . [is] sufficiently implicated by the qualified immunity defense”). While the Tenth Circuit does not appear to have addressed whether and to what extent defendants waive an argument on this point, the Tenth Circuit has instructed that a defendant can raise the affirmative defense of
10

qualified immunity at virtually any time. See, e.g., Escobar v. Mora, 496 F. App’x 806, 815 (10th Cir. 2012) (explaining “the unique nature of qualified immunity, which serves as an immunity from the burdens of litigation rather than a mere defense to liability . . . should remain available to the defendant at multiple stages of the case”) (citations omitted).
In my prior order, I relied on Tenth Circuit precedent regarding the waiver of arguments generally in the Magistrate Judge recommendation-context to find that defendants had waived their “no Bivens remedy” argument. See ECF No. 111 at 16 (citing United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)). However, given the Tenth Circuit’s permissive allowance of arguments on the related issue of qualified immunity, I now realize that finding was in error. Accordingly, I now conclude that defendants did not waive their argument about a lack of Bivens remedy by asserting it for the first time in their objection to Magistrate Judge Mix’s recommendation.13 See also Saucier v. Katz, 533 U.S. 194, 200, 121 (2001) (“Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.”); Williams v. McNeil, 557 F.3d 1287, 1290 (11th Cir. 2009) (“[A] district court does not abuse its discretion by considering an argument that was not presented to the magistrate judge.”).
Reaching defendants’ argument on this point now, I find that for the same reasons the Court refuses to recognize plaintiff’s First Amendment Bivens claims, it must also refuse plaintiff’s invitation to create these novel Fifth Amendment equal protection Bivens claims.14
13 That the Supreme Court has been unwavering in its refusals to expand Bivens since 1980 likewise supports allowing defendants to be heard on this point. See Minneci v. Pollard, 132 S. Ct. 617, 622 (2012) (collecting cases). 14 Although the Supreme Court has previously recognized a Fifth Amendment equal protection Bivens claim in the employment context, see Davis v. Passman, 442 U.S. 228 (1979), plaintiff’s Fifth
11

See Supra Part II.A–C (explaining plaintiff’s adequate alternatives for redressing the wrongs he alleged suffered and the special factors that counsel against creating new Bivens remedies in this particular context).15 Accordingly, the Court grants defendants’ motion for reconsideration and dismisses with prejudice plaintiff’s Fifth Amendment claims for damages contained within Count IV of plaintiff’s Amended Complaint.
ORDER For the reasons above, the Court DENIES plaintiff’s motion for reconsideration [ECF No. 117] but GRANTS defendants’ motion [ECF No. 116]. Accordingly, the Court dismisses with prejudice plaintiff’s Fifth Amendment claims for damages against the remaining individual defendants contained within Count IV of plaintiff’s Amended Complaint. With no claims remaining against the individual defendants, the Court dismisses them from this lawsuit. DATED this 17th day of January, 2017.
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
Amendment Bivens claims are novel because the context of Davis (Congressional employment) is quite different from the context here: allegations by an inmate at a maximum security prison that several BOP employees denied him the right to engage in congregate prayer and meet with an Imam. See, e.g., Wilson v. Libby, 498 F. Supp. 2d 74, 86 (D.D.C. 2007) (“Bivens actions are not recognized Amendment by Amendment in a wholesale fashion. Rather, they are context-specific.”), aff’d, 535 F.3d 697 (D.C. Cir. 2008); see also Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (“[T]he Supreme Court has warned that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts.”) (Internal quotation marks and citations omitted). 15 Plaintiff also maintains claims under RFRA as alternative mechanisms to remedy these specific allegations.
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 Case 1:15-cv-00992-RBJ-KLM Document 199 Filed 01/29/18 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00992-RBJ-KLM AHMAD AJAJ,
Plaintiff, v. FEDERAL BUREAU OF PRISONS,
Defendant.
DEFENDANT’S STATUS REPORT
Defendant Federal Bureau of Prisons respectfully notifies the Court that Plaintiff Ahmad Ajaj has been transferred to the United States Penitentiary in Terre Haute, Indiana. Mr. Ajaj arrived at the institution today.
DATED January 29, 2018. Respectfully submitted, ROBERT C. TROYER United States Attorney Susan Prose Susan Prose Assistant United States Attorney 1801 California Street, Suite 1600 Denver, CO 80202 Telephone: 303-454-0100 Fax: 303-454-0404 Email: susan.prose@usdoj.gov Counsel for the Federal Bureau of Prisons

Case 1:15-cv-00992-RBJ-KLM Document 199 Filed 01/29/18 USDC Colorado Page 2 of 2
CERTIFICATE OF SERVICE I hereby certify that on January 29, 2018, I electronically filed the foregoing document and attached exhibits with the Clerk of Court using the CM/ECF system, which will send electronic notification to the following email addresses:
lrovner@law.du.edu ngodfrey@law.du.edu djefferis@law.du.edu
s/ Susan Prose United States Attorney’s Office

 
 Case 1:15-cv-00992-RBJ-KLM Document 243 Filed 08/01/18 USDC Colorado Page 1 of 12
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 15-cv-00992-RBJ-KLM AHMAD AJAJ,
Plaintiff, v. FEDERAL BUREAU OF PRISONS
Defendant.
ORDER
This matter is before the Court on several pretrial motions. By this order the Court (1) denies plaintiff’s motion for partial summary judgment; (2) grants in part and denies in part defendant’s motion for summary judgment; (3) denies plaintiff’s motion for reconsideration of an earlier order concerning transporting him to Colorado for trial; (4) denies without prejudice plaintiff’s motion to exclude certain expert testimony; and (5) denies plaintiff’s motion in limine.
I. BACKGROUND The background of this dispute has been extensively addressed. See, e.g., ECF No. 97 at 2–9; ECF No. 111 at 2–3; ECF No. 135 at 1–2. I’ll briefly review those facts that are relevant to the motions before the Court. Mr. Ajaj has been in BOP custody for 25 years. He initiated this lawsuit in 2015 while housed at the BOP’s ADX facility in Florence, Colorado. In January 2018, BOP transferred Mr. Ajaj to a different BOP facility located in Indiana, the USP Terre Haute.
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Case 1:15-cv-00992-RBJ-KLM Document 243 Filed 08/01/18 USDC Colorado Page 2 of 12
Mr. Ajaj’s claims center around BOP’s alleged infringement on his Sunni Muslim religious beliefs. After my prior orders eliminating claims and the parties’ Stipulation to Dismiss, ECF Nos. 111, 135, 211, the remaining claims allege that BOP has violated and continues to violate Mr. Ajaj’s rights under the Fifth Amendment and the Religious Freedom Restoration Act (“RFRA”). The RFRA claim consists of four discrete components: (1) BOP’s failure to accommodate Mr. Ajaj’s observance of sunnah fasts; (2) BOP’s failure to provide a halal diet; (3) BOP’s failure to provide meaningful access to an imam; and (4) BOP’s refusal to allow Mr. Ajaj to engage in congregate prayer. See ECF No. 212 at 2.
II. STANDARD OF REVIEW The Court may grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A dispute about a fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
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Case 1:15-cv-00992-RBJ-KLM Document 243 Filed 08/01/18 USDC Colorado Page 3 of 12
III. ANALYSIS A. Mr. Ajaj’s Motion for Partial Summary Judgment [ECF No. 219].
Mr. Ajaj seeks summary judgment on one aspect of his RFRA claim, namely BOP’s failure to provide meaningful access to an imam. He alleges that during his time at ADX and now at USP Terre Haute, BOP has allowed him little to no access to speak with an imam despite his frequent requests to do so. In his motion, Mr. Ajaj argued that his religious beliefs regarding meeting with an imam on a regular basis are sincere, and he also argued that the BOP burdened these religious beliefs.
However, I find that there is good cause to deny Mr. Ajaj’s motion. First, BOP has represented that by the time I issue this order, it is very likely that USP Terre Haute— particularly the Life Connections Program in which Mr. Ajaj participates—will have hired an imam who will work 30 hour per week. ECF No. 232 at 1. At the time the BOP filed its response, July 3, 2018, the imam candidate was apparently undergoing a background check “in anticipation of beginning work as early as mid-July.” Id. Because the presence of an imam would moot Mr. Ajaj’s claim, I find it prudent to wait until our August 9 trial preparation conference for an update as to the imam candidate’s status.
Moreover, this motion must be denied as there is a fact dispute regarding Mr. Ajaj’s ability to utilize the “Minister of Record” procedure apparently available to all BOP inmates. Under this policy, inmates are permitted to identify a spiritual leader, such as an imam, with whom they can communicate subject to BOP approval. ECF No. 232 at 11. BOP contends that Mr. Ajaj has had this Minister of Record procedure available but he has declined to invoke it. Mr. Ajaj responds that this argument is an attempt by BOP to “shift its statutorily-mandated obligation to provide pastoral care to ministers,” but he admits that “the Minister of Record
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opinion technically exists.” ECF No. 242 at 10 n.4. The relief Mr. Ajaj requests in his motion— weekly in-person, telephonic, or video meetings with an imam—is apparently precisely what Mr. Ajaj would be provided under the Minister of Record procedure.
BOP has expressed concern that if the Court were to grant Mr. Ajaj’s requested relief at this time, Mr. Ajaj’s safety and that of the facility at large could be put at risk because other prisoners would see Mr. Ajaj’s individualized and weekly access to a spiritual leader as preferential treatment. If this risk can be eradicated by Mr. Ajaj’s using a pre-existing BOP policy it should be, but at present I do not have enough information regarding this procedure to make a decision on these grounds. As such, I will wait for further fact development on this procedure and thus DENY Mr. Ajaj’s motion for partial summary judgment.
B. BOP’s Motion for Summary Judgment, to Dismiss as Moot, and to Dismiss for Improper Venue [ECF No. 222]. BOP’s motion has three parts: a motion for summary judgment for Mr. Ajaj’s failure to
exhaust his claims at USP Terre Haute; to dismiss as moot any claims regarding ADX; and to dismiss this case for improper venue. I begin by noting that all three of these BOP arguments are possible only because BOP transferred Mr. Ajaj to Terre Haute in the middle of this lawsuit. At the time this case was filed, Mr. Ajaj had exhausted his claims at ADX, his claims regarding ADX were relevant, and the District of Colorado was the proper venue. However, as a result of the transfer, Mr. Ajaj is now housed in Terre Haute, and there is no indication he will ever return to ADX.
While Mr. Ajaj’s claims have not changed—he still challenges BOP policies concerning pill delivery, halal meals, access to an imam, and congregate prayer—Mr. Ajaj now supports his claims with allegations about Terre Haute rather than ADX. BOP classifies this as an improper modification of his claims. ECF No. 222 at 7. In response, Mr. Ajaj argues that to the extent his
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claims challenge procedures that are not limited to ADX but have broader application including at the Terre Haute facility, then his claims can proceed despite the transfer and resulting allegation supplementation.
To start, I DENY BOP’s motion to dismiss for improper venue. Venue of civil actions brought in federal district courts is governed by 28 U.S.C. § 1391. Under § 1391(b) a civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. A substantial part of the events giving rise to Mr. Ajaj’s claim occurred in Colorado, and as such the District of Colorado was the proper venue at the outset of the case. Moreover, Mr. Ajaj’s transfer to Terre Haute does not render the District of Colorado an improper venue, because Mr. Ajaj’s suit challenges certain BOP policies that apply to both facilities, not just to the ADX. He has presented evidence that the challenged BOP policies continue to affect him at Terre Haute. I find that it would be a supreme waste of the parties’ and the judiciary’s time and money to dismiss the case at this point and start anew in Indiana. Moreover, without suggesting that Mr. Ajaj’s transfer was motivated other than by legitimate penological reasons, I do not wish to endorse the notion that a transfer of an inmate during the course of a lawsuit necessarily moots the lawsuit. That would be, in my view, an unwise precedent. Second, I DENY BOP’s motion for summary judgment based on Mr. Ajaj’s alleged failure to exhaust his claims at Terre Haute. Inmates wishing to challenge the conditions of their
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imprisonment in a BOP facility are required to follow BOP’s four-step administrative remedy program prior to bringing a suit in federal court. See Jones v. Bock, 549 U.S. 199, 211 (2007). This administrative process is the same for inmates at all BOP institutions. Mr. Ajaj followed this process and exhausted his remedies while at ADX. However, due to the timing of this transfer, Mr. Ajaj has not recompleted BOP’s four-step administrative remedy process with regard to the BOP policies that he challenges in this lawsuit. BOP argues that this failure to exhaust at Terre Haute justifies dismissal of this case. I do not agree. One purpose of the exhaustion requirement presumably is to give the BOP a reasonable opportunity to correct the alleged wrong before being forced into litigation. Another purpose might be to discourage inmate litigation over complaints so minor that the inmate did not go to the trouble of exhausting administrative remedies. These purposes were effectively achieved by Mr. Ajaj’s proper exhaustion of his administrative remedies concerning the policies to which he continues to object, albeit in a different facility. It was not Mr. Ajaj, after all, who decided to relocate him to Indiana. See Woodford v. Ngo, 548 U.S. 81, 93–94 (2006) (holding that the benefits of exhaustion are realized if “the prison grievance system is given a fair opportunity to consider the grievance”).
Finally, and consistent with the foregoing, I GRANT BOP’s motion to dismiss claims which to any extent relate specifically to procedures at ADX. Plaintiff seeks only injunctive relief. Mr. Ajaj does not have standing to seek to enjoin procedures specific to an institution where he is no longer an inmate. There is no indication that he will be returned to ADX. Therefore, the Court lacks subject matter jurisdiction as to any procedure or policy that applied at ADX but is not in force at Terre Haute.
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Mr. Ajaj alleges that his claims concerning (1) distribution of his prescribed medication before dawn and after sunset during all religiously required fasting holidays; (2) provision of a halal diet; (3) and provision of meaningful access to an imam on a weekly basis continue to apply to him at Terre Haute. As such, he retains standing to challenge these procedures or policies, and I DENY BOP’s motion to dismiss as to these three claims.
However, Mr. Ajaj no longer has standing to challenge BOP policies regarding communal prayer. Mr. Ajaj is apparently now able to pray communally at Terre Haute. The Life Connections Program allows him special access to religious activities including group prayer. Mr. Ajaj argues that the program only lasts 18 months, and therefore, his “short-term access to the unique opportunity” to participate in group prayer is not a reliable resolution of his claim. ECF No. 228 at 13. However, BOP represents that “inmates often remain in the program after their graduation, serving as a teacher or mentor to other inmates.” ECF No. 232 at 7. As such, there is not an imminent risk that Mr. Ajaj’s ability to participate in this program (and therefore group prayer) will end in the near future. The only concrete fact is that Mr. Ajaj is currently allowed to pray five times daily in a group setting at Terre Haute, and as such he suffers no injury-in-fact with regard to this policy or procedure. He therefore does not have standing to seek injunctive relief. As such, I GRANT BOP’s motion to dismiss his claim as to that issue.
C. Plaintiff’s Motion for Reconsideration of Order on Petition for Writ of Habeas Corpus ad Testificandum [ECF No. 223]. Earlier in the case plaintiff moved for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(5) directing the U.S. Marshal to transport Mr. Ajaj from his then place of incarceration, USP-Florence in Florence, Colorado to Denver to appear physically at his trial. ECF No. 175.
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The Court denied the motion, citing security issues and the ability of the plaintiff to observe and to participate in the trial by video conference. ECF No. 191. He now seeks reconsideration of that order.
Section (a) of the cited statute provides district courts discretion to grant writs of habeas corpus. Section (c) then provides, “[t]he writ of habeas corpus shall not extend to a prisoner unless . . . it is necessary to bring him into court to testify or for trial.” 28 U.S.C. §§ 2241(a), (c). In Hawkins v. Maynard, 89 F.3d 850 (10th Cir. 1996) (unpublished table opinion), the court noted that “[a] prisoner does not have an absolute right to be present at his civil trial or pretrial proceedings.” Id. at *1. Rather, in exercising its discretion the district court “must weigh the prisoner’s need to be present against concerns of expense, security, logistics and docket control.” Id. (citing Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 111-12 (4th Cir. 1988).
Plaintiff argues (1) the BOP’s transfer of Mr. Ajaj to USP-Terre Haute demonstrates that he can function in a less restrictive environment without posing security issues, and (2) his trial team cannot fully and fairly represent him at trial unless he is physically present.
The BOP responds that Mr. Ajaj was incarcerated as a result of his having been convicted for his role in the 1993 bombing of the World Trade Center, and even today he remains a “maximum-custody” inmate. ECF No. 230 at 4-5. In support of its opposition to the requested writ, the BOP provides the following:
• Declaration of Richard Hudgins, the warden of FCI-Englewood in Littleton, Colorado. ECF No. 230-1. This is the facility where Mr. Ajaj would be held if brought to Colorado for trial. Mr. Hudgins states that he is familiar with Mr. Ajaj, and he describes the security, logistics and expense concerns he would have if the Court grants the writ. ECF No. 230-1. FCI-Englewood is a low-security institution that would have to make a
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number of accommodations for Mr. Ajaj, other inmates and staff. The total cost to the institution for a five-day trial would be approximately $12,634.50. See ECF No. 230-1. • Declaration of Jason Brackett, Supervisory Deputy, United States Marshal Service. ECF No. 230-2. The USMS would be responsible for providing security in the courthouse. He states that he has familiarized himself with Mr. Ajaj, and that the USMS would classify him as a “high-security risk due to the nature of his conviction, the length of his sentence, and the potential notoriety he may bring with his presence at the courthouse.” Id. at ¶5. Accordingly, heightened security procedures would be required, resulting in approximately $7,600 in costs to the USMS. Id. at ¶8. The USMS would also require that Mr. Ajaj be subject to a strip search and full restraints. Id. at ¶10. • Declaration of K. Robert Schalburg, Supervisory Attorney for the BOP facilities at Terre Haute, Indiana. ECF No. 230-3. Mr. Schalburg states that the BOP will make video conferencing facilities available for use during the trial of this case. Id. at ¶4. It will also make Mr. Ajaj available to his lawyers before court each morning and after court each afternoon, and during breaks allowed by the Court during the trial, for confidential communications by video or telephone. Id. at ¶5. He notes that a past problem with the functioning of the video equipment, included in plaintiff’s motion as one of the reasons for plaintiff’s opposition, have been corrected, but that if there were any malfunction of the video equipment, Mr. Ajaj would immediately be placed on a speaker telephone to ensure that he can continue to participate in and listen to the trial. Id. at ¶6. The Court does not doubt that it would be somewhat easier for Mr. Ajaj to communicate with this lawyers, and vice versa, and certainly more convenient, to have Mr. Ajaj present in person for his trial. However, the Court finds that those reasonable concerns are outweighed by
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other concerns in this instance. The BOP and its affiants have described security and logistical concerns related to transporting and housing a maximum security inmate for this trial. The affiants have also attested to some of the expenses involved, and these apparently do not include the expenses required to bring Mr. Ajaj from Terre Haute, Indiana to Denver and to return him to Terre Haute. I recognize that any increase in either risk or expense resulting from his transfer to Terre Haute is the result of decisions made by the BOP. However, as I have noted earlier in this order, I have no reason to believe that the transfer was made for other than legitimate penological reasons.
In addition I note that this is a civil trial. It is a trial to the Court, not a jury trial. It is a very old case, having been filed on May 11, 2015. Therefore, although there have been some changes in the composition of Mr. Ajaj’s trial team over the years, at least some of them have had access to Mr. Ajaj in Colorado. As noted, the Terre Haute facility will make video conference technology available to Mr. Ajaj throughout the trial and will also facilitate confidential communications between Mr. Ajaj and his lawyers before and after trial each day and during breaks.
Applying the Muhammad factors which were cited with approval by the Tenth Circuit in its unpublished table opinion in Hawkins, and exercising its discretion, the Court denies the motion for reconsideration.
D. Plaintiff’s Motion to Exclude Expert Witness Testimony [ECF No. 238]. Plaintiff contends that certain opinions proffered by defense expert Ammar Amonette do not pass muster under Fed. R. Evid. 702. Mr. Amonette is an expert on Islamic religion and law, but plaintiff contends that some of his opinions are outside his expertise and are not based on
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sufficient facts and data, i.e., opinions concerning (1) the United States Department of Agriculture’s slaughtering practices and (2) prison security. Defendant has not yet responded.
Because this will be a bench trial, the Court finds that there is no need to conduct a separate “Daubert” hearing in advance of trial. The Court will consider the motion and any response and reply that might be filed and exclude or ignore opinions that are not sufficiently relevant and reliable to be admitted under Rule 702.
E. Plaintiff’s Motion in Limine [ECF No. 241]. Plaintiff moves in limine to preclude the defendant from offering evidence of the criminal conduct for which he stands convicted, his whereabouts before the crime was committed, and his associates. Plaintiff also asks the Court to order the defendant not to describe Mr. Ajaj as a “terrorist.” The defendant has not yet responded. For reasons similar to those concerning the opinions of Mr. Amonette, the Court declines to rule on these issues in limine. In this civil bench trial the Court will not admit evidence, and will disregard offers of evidence, that is not relevant or that is unduly prejudicial. Of course, the Court is aware of the bare bones of Mr. Ajaj’s conviction by necessity, as plaintiff’s motion for a writ of habeas corpus to bring him from Terre Haute, Indiana to Denver for his trial made some aspects of his criminal history relevant to security and logistical issues. Plaintiff appears to be concerned that some persons equate Muslims and Islamic religion with terrorism or violence. If there are people with such views, this Court is not among them. Whether security or other issues arising from Mr. Ajaj’s criminal history might raise legitimate penological concerns relevant to the issues at trial is something as to which the Court has no present knowledge. The Court will address such issues if and as necessary in the context of the evidence and arguments presented at trial, rather than in a pretrial in limine ruling.
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IV. ORDER 1. The Court DENIES plaintiff’s motion to dismiss, ECF No. 219. 2. The Court GRANTS IN PART and DENIES IN PART defendant’s motion for summary judgment, ECF No. 222. To the extent that Mr. Ajaj seeks to enjoin policies or procedures that are limited to the ADX facility, and to the extent he is complaining about denial of his ability to pray communally, the complaint is dismissed without prejudice. 3. The Court DENIES plaintiff’s motion for reconsideration, ECF No. 223. 4. The Court DENIES without prejudice plaintiff’s motion to exclude expert testimony, ECF No. 238. 5. The Court DENIES plaintiff’s motion in limine, ECF No. 241. DATED this 1st day of August, 2018.
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 15-cv-00992-RBJ-KLM AHMAD AJAJ,
Plaintiff, v. FEDERAL BUREAU OF PRISONS
Defendant.
FINDINGS, CONCLUSIONS and ORDER OF JUDGMENT
Ahmad Ajaj, represented by law students and professors from the Civil Rights Clinic of the University of Denver Sturm College of Law, filed this lawsuit on May 11, 2015. At that time he was an inmate incarcerated in solitary confinement at the United States Penitentiary Administrative Maximum Security facility in Florence, Colorado. Mr. Ajaj is a devout Muslim. In his original Complaint he alleged that his rights under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb, and the First Amendment to the United States Constitution were being violated because he was not allowed to consume food and drink, and take medications, outside the fasting hours of dawn to dusk during the holy month of Ramadan. ECF No. 1.
Over the years that followed the case has gone through numerous changes. In an Amended Complaint filed on October 9, 2015 plaintiff added claims under the Fifth Amendment and the Federal Tort Claims Act (“FTCA”), 28 U.S.C § 1346(b). He also named 15 individual defendants in addition to the Bureau of Prisons. His claims were expanded to include Sunnah
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fasts. He also alleged failure to honor his requirement of a halal diet, lack of meaningful access to an Imam, and inability to participate in group prayer. ECF No. 29.
On October 25, 2016 the Court after a de novo review adopted the recommendations of United States Magistrate Judge Kristin L. Mix to dismiss plaintiff’s FTCA claims and to dismiss in part his official capacity and individual capacity claims. ECF No. 111. On December 7, 2016 the Court issued a Scheduling Order. ECF No. 124. The case was set for a Trial Preparation Conference on December 19, 2017 and a two-week jury trial beginning January 8, 2018. ECF No. 122. On January 17, 2017 the Court denied the parties’ respective motions to reconsider portions of the Court’s order on defendants’ motions to dismiss. ECF No. 135. In August, 2017, at the request of the parties, several pretrial deadlines were reset. ECF No. 160.
On May 9, 2017 the Court, at the request of the parties, referred the case to Magistrate Judge Mix for a settlement conference. Unfortunately, a settlement was never achieved. On December 4, 2017 the parties jointly asked the Court to reopen discovery and to vacate and reset the trial. Among other things the parties reported that the BOP had posted a position for a fulltime Islamic Chaplain at the Federal Correctional Complex in Florence, Colorado. ECF No. 189. The trial was reset for August 27, 2018 with a Trial Preparation Conference on August 9, 2018. ECF No. 193.
On January 29, 2018 the sole remaining defendant, Federal Bureau of Prisons, informed the Court that Mr. Ajaj had been transferred to the United States Penitentiary in Terre Haute, Indiana. ECF No. 199.1 The next day plaintiff’s counsel informed the Court that they were attempting to obtain information as to how the conditions at the new facility might affect Mr.
1 The United States Penitentiary in Terre Haute, often referred to as “USP Terre Haute,” is one of two facilities which together comprise the Federal Correctional Complex, Terre Haute (“FCC Terre Haute”). The other facility is the Federal Correctional Institution, Terre Haute (“FCI Terre Haute). USP Terre Haute is a high-security facility. FCI Terre Haute is a medium security facility.
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Ajaj’s claims. ECF No. 200. Counsel expressed concern that the transfer might have been motivated by an attempt to render this case moot.
During a status hearing on March 2, 2018 the Court informed the parties that it did not consider that the transfer necessarily mooted the claims, and that it would not consider the case to be moot unless Mr. Ajaj were provided a halal diet, some sort of meaningful access to an Imam, and the ability to participate in group prayer in the Indiana facility. ECF No. 206 at 5-7. The Court also informed the parties that it would not require Mr. Ajaj to go through the process of exhausting his administrative remedies again just because he was transferred. Id. at 7-8. Government counsel informed the Court that she understood that group prayer is available to Mr. Ajaj at USP Terre Haute. Id. at 8. However, the facility did not have a contract Imam or a certified halal diet available at that time. Id. at 9, 11-12.
On April 18, 2018 the parties stipulated to the dismissal of plaintiff’s First Amendment claim, leaving (1) the RFRA claim related to Mr. Ajaj’s ability to observe Sunnah fasts, to have access to an halal diet, to have access to an Imam, and to have the ability to engage in congregate prayer, and (2) an equal protection claim under the Fifth Amendment. ECF No. 211. In May plaintiff filed a motion for a partial summary judgment on the Imam issue. ECF No. 219. The BOP likewise filed a motion for summary judgment in which it argued (1) that plaintiff did not exhaust his administrative remedies with respect to conditions at USP Terre Haute; (2) plaintiff’s claims about the ADX were moot; and (3) this Court is not an appropriate forum to resolve claims concerning conditions at an out-of-district facility. ECF No. 222.
On August 21, 2018 this Court issued an order (1) denying plaintiff’s motion for summary judgment; (2) granting in part and denying in part defendant’s motion for summary judgment; (3) reiterating an earlier order denying plaintiff’s request that he be transported to
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Colorado for trial; (4) denying without prejudice plaintiff’s motion to exclude certain testimony; and (5) denying a motion in limine filed by the plaintiff. ECF No. 243. Essentially, I agreed that the claims concerning conditions at the ADX were now moot. However I found that Mr. Ajaj’s claims concerning violation of his religious rights could be decided by this Court in this case to the extent that the same conditions about which he complained at the ADX (and as to which he had exhausted his administrative remedies there) existed at USP Terre Haute. I also found that Mr. Ajaj no longer had standing to challenge BOP policies regarding communal prayer because he now had the ability to do so through USP Terre Haute’s “Life Connections Program” in which he had enrolled.
Both parties sought reconsideration of that order for different reasons. See ECF Nos. 250 and 251. The Court modified its summary judgment order only to the extent that it found that Mr. Ajaj’s claim concerning delivery of his medications had not been sufficiently raised and preserved. ECF No. 265. The Court on August 20, 2018 denied the BOP’s motion to continue the trial (by then just one week away) based on the illness of one of the defense attorneys on the case. ECF No 267.
When all the dust settled, two issues remained for trial: Mr. Ajaj’s alleged entitlement to (1) a certified halal diet; and (2) meaningful access to an Imam. Only equitable remedies were sought.
Then, two significant events occurred shortly before trial. First, on either August 20 or 21, 2018 Hugh Hurwitz, the Acting Director of the Bureau of Prisons, contacted Jeffrey E. Krueger, the Complex Warden at FCC Terre Haute, and asked him to see if he could obtain certified halal meals for Mr. Ajaj in a short timeframe. According to Warden Krueger, this was an effort to get the diet issue resolved before the trial as well as to accommodate Mr. Ajaj’s
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religious needs. Almost overnight FCC Terre Haute was able to contract to purchase a supply of halal-certified meals for Mr. Ajaj from a relatively nearby Illinois vendor as well as a microwave dedicated to heating only the halal meals. On August 24, 2018, the last business day before trial, Complex Warden Krueger issued a memorandum to Ismail Oliver, the Food Service Administrator for FCC Terre Haute, confirming the new policy. Defendant Ex. C-9. That same day Mr. Ajaj began receiving certified halal meals with the noon meal. The meals are prepackaged and are reviewed by the prison’s Chief Dietician to assure nutritional values.
Warden Krueger testified that delivery of these meals to Mr. Ajaj will continue (subject to abuse of the privilege such as selling food to others or an institutional emergency such as a lockdown) until a long-term solution such as a national contract or national vendor is implemented. Although Warden Krueger is moving up to a regional position, it oversees Terre Haute and several other BOP facilities, and he will make sure that the policy will not be rescinded by his successor. If a national solution is not implemented the policy will continue potentially indefinitely.
There are no current plans to transfer Mr. Ajaj again. However, if he is transferred before a national policy is implemented, his meals at the new institution will be reviewed by the BOP’s central office. Warden Krueger testified that most of the 200 to 300 Muslim inmates at FCC Terre Haute are on a kosher diet, but if others want what Mr. Ajaj is now getting they will be accommodated as well.
Although the new policy provides for three meals a day, the vendor is only providing prepackaged lunch and dinner meals. However, the word “halal” means “permitted.” Fruits and vegetables are always permitted. Items that are not permitted included pork, meat not slaughtered in an approved manner, carrion and alcohol. Mr. Oliver testified that Mr. Ajaj’s
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breakfasts include dry cereals certified by General Mills as halal, boiled eggs that are naturally halal, fruit, dairy and tea. He is trying to expand the menus so that Mr. Ajaj will not be eating the same things all the time. Mr. Ajaj has not expressed any concerns to Mr. Oliver about his breakfasts or about the lunches and dinners he is now receiving.
Second, as indicated earlier in this order, the BOP had been soliciting applications for a full-time Imam for Terre Haute. The basic requirements, according to Mike Castle, the Correctional Chaplain Coordinator for the BOP’s western and north central regions, are that the individual have either a degree in theology or graduate level equivalency (the same qualifications as chaplains in other religious faiths); pass a security check; and, of course, be willing to move to Terre Haute. The BOP did find a qualified Imam who agreed to take the position and was in the process of moving from Houston to Terre Haute, but changed his mind about two weeks before the trial. The BOP then reached out to Bashar Murad, an Imam who had worked as a part-time Imam at Terre Haute in the past, and agreed to hire him on a month to month contract to provide not more than 30 hours of service per week while the BOP continues to try to find a full-time Imam for the facility.
Imam Murad is the only on-site Imam available to Mr. Ajaj and other Muslim inmates at USP Terre Haute the present time. However, another option is what is called the Minister of Record program. That permits an inmate to communicate by telephone, mail or email with essentially any Imam in the country of the inmate’s choosing (excluding the 13 Imams presently working full time in other BOP institutions). An outside Imam may also visit an inmate, although there was no evidence about other Imams in the vicinity of Terre Haute who would be likely to visit as a practical matter. Chaplain Castle acknowledged that talking with an Imam on the telephone is not the same as talking to an Imam in person, but it is an available option. In
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addition, there is a library in the C-1 unit, where participants in the Life Connections Program are housed. It contains books and videos of a religious nature that may be checked out.
As described by Jonathan Sutter, a staff chaplain at USP Terre Haute, the Life Connections Program is a faith-based life skills program in which participants are taught to take their basic faith teachings and integrate them into their lives so they can make healthy connections to their family and their community. Life skills would include physical and mental wellness, emotional management, conflict management, moral compass and decision-making. There are four different faith groups in the Life Connections Program, one of which is the Islamic group. Chaplain Sutter testified that the leader or “spiritual guide” of each group teaches classes using a template based upon the 14 interactive work books which draw from multiple faith traditions. Mr. Ajaj applied for the Life Connections Program, was accepted, and was placed in the C-1 housing unit (housing for Life Connections Program participants), in February 2018. He began “active programming” (active participation) in May 2018.
Mr. Ajaj is a Sunni Muslim as are approximately 90% of Muslims in the world. According to plaintiff’s expert Dr. Seth Ward, Sunni Muslims follow the practices of the Prophet Muhammad whose teachings are revealed in the Quran. The other main branch of Islam, Shia, gives greater weight to the pronouncements of Ali, a cousin of Muhammad, and his descendants. Dr. Ward testified that in the Sunni world Imams, though not ordained as such, have functions that are similar to a minister, priest, rabbi or other cleric such as to lead prayers, give a Friday sermon, and provide advice on Islamic law and spiritual guidance.
According to Chaplain Castle and Chaplain Sutter, Imam Murad is Sunni. Chaplain Sutter testified that Imam Murad has served as an Imam in various Sunni mosques since about 1997, and that he also served inmates in various BOP facilities during that same period of time.
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He has been with the Life Connections Program for about ten years. His primary responsibilities in that program are to lead the classes in which participants receive life skills training grounded in Islamic teaching. He is also available for about two hours a week for meetings with participants on either a one-on-one or a small group basis. Chaplain Sutter has observed Imam Murad doing rounds and meeting with Islamic inmates and says that he seemed well received by the inmates who were putting into practice in their conversations some of the teachings and advice he had given them.
However, Mr. Ajaj believes that Imam Murad is Sufi, which is an aspect of Islam that can be found in Sunni or Shia groups. Mr. Ajaj has made it clear that his beliefs are different than those of Imam Murad. He has informed personnel at USP Terre Haute that because of Imam Murad’s beliefs, it would go against his religious principles to attend Imam Murad’s classes. Therefore, he has declined to attend the classes.
Chaplain Sutter has discussed the situation with Imam Murad and has emphasized to him that the class must be a general Islamic class, meaning that the class should focus on core principles that apply to the different strands of Islam. This is analogous to a Christian chaplain who must teach core teachings of Christianity; there can then be discussion, often raised by participants, of different perspectives within Christianity. Imam Murad responded that this is how he has taught his classes in the past and how he will continue to teach his classes in the future. Chaplain Sutter testified that he is satisfied that that is in fact what is happening. He plans to monitor the classes from time to time to confirm this.
Inmates enrolled in the Life Connections Program are expected to attend classes in the faith group to which they ascribe (or they may attend classes given to inmates who do not designate a religious preference). An inmate cannot continue in the Life Connections Program if
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he refuses to attend classes. He may withdraw from the Program and be eligible to reenroll in

the future, such as, for example, when an Imam whose beliefs more closely mirror the inmate’s

beliefs is hired. Otherwise, he will be involuntarily transferred out of the Life Connections

Program and, in that event, will not be readmitted later. Two other Muslim inmates testified that

they share Mr. Ajaj’s concerns about Imam Murad. However, other Muslim inmates apparently

do not share all of his concerns as they have been attending Imam Murad’s classes.

A. RFRA.2

FURTHER FINDINGS AND CONCLUSIONS

RFRA provides that government may not “substantially burden a person’s exercise of

religion” unless it demonstrates that doing so “(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000bb-1. The BOP has stipulated, and the Court finds, that Mr. Ajaj’s

religious beliefs are sincerely held. The questions presented are whether his religious beliefs at

issue in this case are being substantially burdened, and if so, has the BOP demonstrated a

compelling governmental interest without a less restrictive alternative that justifies the burden.

B. Certified Halal Diet.

I find that there is no substantial burden on Mr. Ajaj’s belief that he must follow a

certified halal diet, indeed, no burden at all. Mr. Ajaj is now receiving halal certified meals. He

has expressed no dissatisfaction with the new policy. BOP witnesses have testified that this will

continue until a solution is implemented at the national level of the BOP. I found their testimony

in this regard, which was confirmed in writing, to be credible.

That does not deprive the Court of jurisdiction. “It is well settled that a defendant’s

voluntary cessation of a challenged practice does not deprive a federal court of its power to

2 The plaintiff dropped his remaining constitutional claim during the course of the trial. 9

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determine the legality of the practice.” City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283, 289 (1982). However, the Court may determine that the dispute has become moot “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203 (1968).
A determination of whether the halal diet issue has now become moot is a close call. The evidence that the certified halal meals will continue to be provided to Mr. Ajaj until the BOP implements a national solution was credible and undisputed. The fact remains, however, that the new program was implemented on the eve of trial after more than three years of litigation. There likely will be changes in the occupants of the positions held by Mr. Krueger and Mr. Hurwitz. Also, while there is no current plan to transfer Mr. Ajaj to another institution, Mr. Ajaj testified that he has been in nine different BOP facilities since he was first imprisoned in 1993. The evidence is that if he is transferred before a long-term solution is implemented at the national level, his diet will be reviewed by BOP’s central office, not that the decision will necessarily be to provide certified halal meals to him in the new institution.
In an attempt to strike an equitable balance, I enjoin the BOP from discontinuing Mr. Ajaj’s certified halal diet unless that is required to serve a compelling governmental interest and no reasonable alternative exists. Put more simply, the BOP may not discontinue providing halal certified meals to Mr. Ajaj absent a very good penological reason. Good cause could include, as the Krueger memo states, abuse of the privilege. It could include a temporary cessation due to an institutional emergency such as a lockdown. It could include the absence of an available source of halal meat in a particular geographic location, although in that situation the Court
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would expect the BOP to use its best efforts to develop a source. The cost of providing certified halal meals will not constitute a compelling government interest.
The Court recognizes and appreciates the effort at the highest level of the BOP to get this matter resolved, and it finds that the solution described in Defendant’s Ex. C-9 is an effective means of resolving it. The Court simply requires that the solution continue past the end of this lawsuit and anticipates that it will be difficult for the BOP to meet the heavy burden of proving a compelling governmental interest for not adhering to the spirit of the memo in the future.
C. Imam. What constitutes “meaningful access” to an Imam is subjective. The BOP has tried to hire a full-time Imam for FCC Terre Haute. It thought it had been successful, only to have the gentleman change his mind about taking the position two weeks before trial. The BOP is continuing to try to locate and hire a full-time Imam for the facility. Meanwhile, it hired Imam Murad, who formerly was a contract Imam at the facility, to resume that work on a month to month contract. The evidence is that Imam Murad is required to teach classes on a general level of Islam, leaving to students the ability to ask questions about their individual beliefs if they wish. His classes are to be monitored to see that he does reach out to all Muslim inmates. Nevertheless, Mr. Ajaj disputes that Imam Murad provides meaningful access to an Imam due to differences in their religious beliefs. Without diminishing the sincerity of his beliefs, including his belief that attending his classes goes against his beliefs, I note that attending the Imam’s classes does not compel him to modify his own beliefs at all. But if Mr. Ajaj will not attend Imam Murad’s classes, then he has the option of withdrawing from the Life Connections Program and waiting until an Imam whose beliefs more closely mirror his is hired. That will not deprive him of access to an Imam because the Minister of Record Program permits regular
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access to any Imam in the United States (other than the 13 full-time Imams working in other BOP institutions) who is willing to communicate with him by telephone, mail or email. Plaintiff’s own correctional expert, Emmitt Sparkman, testified that it is difficult to recruit Imams and to keep them on a prison’s staff, and that talking with an Imam on the phone is a reasonable interim solution in the absence of an Imam who is available for visits in person.
Mr. Ajaj does not regard that as a good option, at least in part because he says he does not know other Imams. However, there is no evidence that Imam Murad would refuse to give him names and contact information for other Imams. There is no evidence that Imam Ammar Amonette, who testified at trial, would be unwilling to talk with him or refer him to other Imams. One of the other Muslim inmates at Terre Haute, Mohammed Shnewer, testified that his mother arranged for him to speak to an Imam in New Jersey on the phone, and that she would be willing to help Mr. Ajaj get in touch with that Imam. There are many ways to find Imams, and I have no reason to believe that someone as resourceful as Mr. Ajaj (who was able to compile a long list of brands of halal foods) cannot find one with some effort.
The Court frankly does not know what else can reasonably be expected of the BOP. The BOP cannot be expected to hire a full-time Imam who does not meet the educational requirements applicable to all Imams and chaplains in other faiths. The BOP cannot be expected to hire an Imam who does not pass a security check. The BOP cannot hire an Imam who is not willing to take a job in Terre Haute, Indiana. The BOP cannot reasonably be expected to screen applicants to make sure that their views match the specific views of Mr. Ajaj, who is just one of many Muslim inmates.
It is true that if Mr. Ajaj refuses to attend the classes of Imam Murad it will limit somewhat his opportunity to pray in a group. In that event he will have to withdraw (or be
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removed) from the Life Connections Program and will not have the same opportunities for group prayer that he presently enjoys in the C-1 housing unit which is for Life Connections Program participants. Chaplain Sutter testified, however, that Mr. Ajaj would still be able to participate in a group for the Jumu’ah, an important congregational prayer that Muslims hold every Friday.
Plaintiff’s counsel urged the Court not to give Mr. Ajaj a “Hobson’s Choice.” I do not regard the choice between having everything exactly as Mr. Ajaj would like it to be and the menu of opportunities he has at USP Terre Haute to be a Hobson’s choice. Mr. Ajaj has the opportunity to engage in group prayer every day; and to have direct in-person contact with an Imam; and to attend “non-denominational” Islamic classes taught by an Imam; and to consult with other Imams by telephone, mail and email; and to maintain at all times his own, personal religious beliefs and values even though they might not entirely match those of the Imams. He is, after all, one of many Muslim inmates. And he is, after all, in a prison – a prison that, while dragging its feet to a degree, is making what I regard as a sincere effort to respect and honor his religious rights.
Accordingly, I do not find that Mr. Ajaj’s religious belief that he must have regular and “meaningful” access to an Imam has been substantially burdened. However, to the extent that there is not at the present time an Imam at FCC Terre Haute who shares Mr. Ajaj’s religious views could be deemed to be a substantial burden, I find that there are compelling governmental interests that permit the burden. First, despite the BOP’s efforts, it has to date been unable to find and hire a full-time Imam for that facility. It cannot do what it cannot do, and so long as it continues to make the effort, that is all that one can reasonably expect. Second, it may well be impossible to find any Imam whose views are precisely in line with those of Mr. Ajaj or any
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other Muslim inmate. The BOP’s obligation is to do what it can to respect and serve the religious beliefs of all inmates, not just those that might be unique to one individual.
D. Attorney’s Fees. There is no attorney’s fee clause in RFRA, but fees can be awarded to the prevailing party under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. See, e.g., DiLaura v. Township of Ann Arbor, 471 F.3d 666, 670 (6th Cir. 2006); Jama v. Esmore Correctional Services, Inc., 549 F. Supp. 2d 602, 605 (D. N. J. 2008). Here, the plaintiff did not incur fees, as representation was provided by the law school’s civil rights clinic. However, fees may be awarded to public interest lawyers, including those associated with a legal aid type agency, just as they are to private lawyers. See Ramos v. Lamm, 713 F.2d 546, 551-52 (10th Cir. 1983). A number of plaintiff’s claims were dismissed. Moreover, by the time of trial his two remaining claims – certified halal diet and meaningful access to an Imam – were largely satisfied. Those developments are relevant to what is reasonable, because “[i]f a plaintiff does not prevail on all claims for relief, the court must determine whether an adjustment is necessary.” Ramos, 713 F.2d at 556. In making such an adjustment, however, I also must consider the contribution of counsel to the outcome. I do not believe that the policies at FCC Terre Haute concerning provision of certified halal meals and access to an Imam would have occurred to the same degree or certainly at the same time had it not been for the high quality, zealousness and persistence of the advocacy provided by the Civil Rights Clinic of the University of Denver Sturm College of Law. Largely as a result of the Clinic’s representation of Mr. Ajaj, he was the prevailing party.
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Accordingly, I award to the plaintiff a reasonable attorney’s fee to be provided to the Clinic. Guidance can be found in the factors originally set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) and in The Colorado Rules of Professional Conduct are found as an Appendix to Chapters 18 to 20, COLORADO COURT RULES – STATE (2015). Guidance can also be found in common sense and good judgment. I urge the parties to confer and to attempt in good faith to agree upon a reasonable award. Failing that, however, the parties may set an evidentiary hearing.
ORDER of JUDGMENT The United States Bureau of Prisons is enjoined from discontinuing Mr. Ajaj’s certified halal diet unless that is required to serve a compelling governmental interest and no reasonable alternative exists, as further explained in this order. The Court awards the plaintiff Ahmad Ajaj reasonable attorney’s fees, also as further explained in this order. As the prevailing party, plaintiff is also awarded costs to be taxed by the Clerk of Court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54(a). Judgment will enter accordingly. DATED this 13th day of September, 2018.
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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 Case 1:15-cv-00992-RBJ-KLM Document 331 Filed 04/15/19 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00992-RBJ-KLM AHMAD AJAJ,
Plaintiff, v. FEDERAL BUREAU OF PRISONS,
Defendant.
AMENDED FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Amended Final Judgment is hereby entered.
This action was tried before United States District Judge R. Brooke Jackson, and the Court has rendered its Findings, Conclusions and Order of Judgment on September 13, 2018 [ECF No. 291]. It is
ORDERED, that plaintiff’s claim regarding entitlement to a certified halal diet is resolved in favor of the plaintiff to the extent that the Federal Bureau of Prisons is enjoined from discontinuing to provide to Mr. Ajaj a certified halal diet unless that is required to serve a compelling governmental interest, and no reasonable alternative exists. Judgment is entered in favor of the plaintiff on this claim. It is

Case 1:15-cv-00992-RBJ-KLM Document 331 Filed 04/15/19 USDC Colorado Page 2 of 2

FURTHER ORDERED THAT plaintiff’s claim regarding access to an Imam is resolved in favor of the defendant, Federal Bureau of Prisons, and against the plaintiff, Ahmed Ajaj. Judgment is entered in favor of the defendant on this claim. It is
FURTHER ORDERED that judgment on all other claims is entered consistent with the Court’s orders issued prior to trial. It is
FURTHER ORDERED that the plaintiff is awarded reasonable attorney’s fees. It is
FURTHER ORDERED that the plaintiff is awarded costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated at Denver, Colorado this 15th day of April, 2019.

APPROVED BY THE COURT: s/ R. Brooke Jackson
United States District Judge

FOR THE COURT: JEFFREY P. COLWELL, CLERK
By: s/ J Dynes J DYNES Deputy Clerk