Ajaj v. Federal Bureau of Prisons

561 F. App'x 657
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 17, 2014
Docket13-1010
StatusUnpublished
Cited by2 cases

This text of 561 F. App'x 657 (Ajaj v. Federal Bureau of Prisons) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ajaj v. Federal Bureau of Prisons, 561 F. App'x 657 (10th Cir. 2014).

Opinion

ORDER AND JUDGMENT *

BOBBY R. BALDOCK, Circuit Judge.

Ahmed Mohammad Ajaj, a prisoner in the custody of the Federal Bureau of Prisons (BOP) proceeding pro se, appeals from the district court’s orders granting Tomas Gomez’s motion for summary judgment and the other defendants’ motions to dismiss his claims under Federal Rule of Civil Procedure 12(b)(1) and (6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

In his third amended complaint, Mr. Ajaj sued the United States, BOP, and numerous current and former BOP employees, including Mr. Gomez, asserting ten claims, many with subdivisions, under numerous constitutional, statutory, regulatory, and treaty provisions; (1) religious discrimination; (2) inhumane conditions of confinement; (3) unjust convictions for disciplinary violations; (4) improper handling of mail; (5) denial of meaningful visits with family and friends in person and by video; (6) restrictions on making telephone calls concerning legal matters; (7) restrictions on access to and receipt of books and other publications; maintaining inaccurate information in prison records; (9) denial of and interference with medical treatment for several conditions; and (10) medical malpractice in violation of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b).

All defendants, but the United States, moved to dismiss these claims under Rule 12(b)(1) and (6). In its forty-page March 10, 2011, order, the district court dismissed under Rule 12(b)(6) claims 1, 2, most of 3, 4, 5, 6, 7, 8, and 9 and dismissed all defendants except the United States, the BOP, and Mr. Gomez. The court concluded that Mr. Ajaj failed to state cognizable claims for relief primarily because his pleadings were conclusory and he failed to allege personal participation by the individual defendants. But the court declined to dismiss two claims, deciding that (1) Mr. Ajaj had adequately pled a declaratory relief claim against the BOP under the Administrative Procedures Act (APA) for his allegations that his disciplinary convictions based on Carl Mestas’ and Mr. Gomez’s disciplinary notices were arbitrary and capricious; and (2) he had adequately pled a First Amendment retaliation claim against Mr. Gomez for issuance of a disciplinary notice based on Mr. Ajaj’s participation in a hunger strike. Also, the court *659 determined that another opportunity to amend the complaint was unwarranted because Mr. Ajaj was on notice that he needed to allege facts showing each defendants’ personal participation in their alleged improper conduct yet he failed to do so in his three complaint amendments, the request to amend was due to undue delay by Mr. Ajaj, and further delay would prejudice the individual defendants. On December 6, 2011, the court rejected Mr. Ajaj’s motion for reconsideration, finding that he did not present newly discovered evidence and there was no manifest error of law.

In an amended order filed March 27, 2012, the court granted the United States’ and the BOP’s motion to dismiss the claims remaining against them, part of claim 3 and claim 10, under Rule 12(b)(1). 1 The court held that (1) because claim 3 objected to the reduction of Mr. Ajaj’s good time credits and the place of his imprisonment, it was barred by 18 U.S.C. § 3625; and (2) because Mr. Ajaj did not administratively exhaust his FTCA claim, the court lacked jurisdiction to hear claim 10. In that same order, the court granted Mr. Gomez’s unopposed motion for summary judgment on the First Amendment retaliation claim, determining it was barred by the statute of limitations. In a text entry entered on the docket on November 13, 2012, the court denied Mr. Ajaj’s motion to reconsider.

Mr. Ajaj asserts many arguments on appeal: (1) his claim against Mr. Gomez was timely because the statute of limitations did not begin to run until he received a final agency decision; (2) the district court erred in dismissing his claims against the United States because (a) he should have been allowed to amend his complaint to include FTCA claims that were administratively exhausted; (b) his second amended complaint was a new action under the FTCA, the government did not oppose the filing of the second amended complaint adding the FTCA claims, and the government therefore waived any right to argue that he failed to exhaust administrative remedies; (c) the FTCA claims were timely and the government never argued that they were untimely when it moved to dismiss; (d) the court did not address his argument that the FTCA claims were timely under the continuing threat and continuing violation doctrines; (e) the court did not consider his undisputed evidence concerning the existence and cause of his injury; (f) the court did not consider that his deliberate indifference claims were also FTCA claims; and (g) the court did not review his declaratory and documentary evidence showing that he exhausted his claims; (3) the court erred in dismissing the unlawful-discipline claims against the BOP because (a) the BOP did not move to dismiss the declaratory and injunctive-relief claims under Rule 12(b)(6); (b) the court incorrectly decided he requested only declaratory and injunc-tive relief under the APA when he also requested relief under other theories; and (c) the court erred in granting the BOP’s successive motion to dismiss; (4) the court failed to rule on (a) his ninth claim, a medical claim against the BOP for declaratory and injunctive relief under various theories; (b) his first claim, a religious claim for declaratory and injunctive relief under various theories; (c) his third claim against Mr. Mestas, concerning Mr. Ajaj’s discipline for failing to perform tasks that were inconsistent with and aggravating to his medical condition; (d) his third claim asserting that he was subject to disciplinary penalties disproportionate to his alleged offense of failing to perform a cell rotation task; (e) his third claim for retal *660

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Bluebook (online)
561 F. App'x 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ajaj-v-federal-bureau-of-prisons-ca10-2014.