Ajaj v. Fed. Bureau of Prisons, Civil Action No. 08-cv-02006-RBJ-MJW

AHMED M. AJAJ, Plaintiff,

v.FEDERAL BUREAU OF PRISONS, THE UNITED STATES OF AMERICA, and TOMAS GOMEZ, Defendants.

Civil Action No. 08-cv-02006-RBJ-MJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: March 26, 2012

ORDER

This matter comes before the Court on defendants Federal Bureau of Prisons and United States of America's Motion to Dismiss [#388]. Plaintiff responded on January 17, 2012 [#454] and defendants filed their reply on January 23, 2012 [#457]. This order also addresses defendant Tomas Gomez's Motion for Summary Judgment, filed January 4, 2012 [#448]. Plaintiff did not respond to defendant Gomez's motion.

Facts

At all relevant times, Mr. Ajaj has been a prisoner assigned to the Administrative Maximum Facility ("ADX") in Florence, Colorado. A more thorough recitation of the facts and procedural history of this case can be found in this Court's previous orders. See Docket #275, 282, and 421.

On March 10, 2011 Judge Marcia Krieger granted several Motions to Dismiss, dismissing all defendants other than the United States, the Bureau of Prisons, and Tomas Gomez [#275]. Plaintiff has two remaining claims: Claims Three and Ten, as set forth in Plaintiff's ThirdAmended Complaint [#167]. Defendants' Motion to Dismiss and Motion for Summary Judgment seek to dismiss all remaining claims and defendants.

Standard

When a case involves a pro se party the court will "review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys." Trackwell v. U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se plaintiff's pleadings "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based...conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id. Pro se parties must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (citing Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).

Conclusions

Federal Bureau of Prisons and United States of America's Motion to Dismiss (#388)

Defendant Federal Bureau of Prisons ("BOP") and United States of America ("U.S.") move the Court to dismiss the remaining claims asserted against them pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction.

A motion to dismiss brought under Rule 12(b)(1) generally may take two forms: "First a moving party may make a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction...the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based... In reviewing a factual attack, a court has widediscretion to allow affidavits, [and] other documents..." Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (internal citations omitted). A court's consideration of evidence outside the pleadings does not convert the motion into a Motion for Summary Judgment under Rule 56. Id. A lack of subject matter jurisdiction may be challenged at any time. Under Fed. R. Civ. P. 12(h)(3) the court must dismiss the action "if the court determines at any time that it lacks subject-matter jurisdiction."

Claim Three: "Unlawful Disciplinary Actions Claim"

The allegations contained in Mr. Ajaj's third claim arise out of an incident report issued by defendant Tomas Gomez in September 2005. With regard to defendants BOP and the U.S., Mr. Ajaj challenges the sufficiency of the evidence to find him guilty of the charges alleged in Mr. Gomez's incident report and in a report filed by Carl Mestas. As a result of the incident report, Mr. Ajaj alleges that he "lost good conduct time, earned credit, spent more than two months in total isolation in a special housing unit, lost property privileges for one month, and was denied placement in the step-down program," as well as other complaints. [Doc. 167 at 177, 165]. In her March 10, 2011 Order, Judge Krieger described Mr. Ajaj's third claim as follows: "Mr. Ajaj also appears to assert an APA claim against BOP based on the hearing officer's finding that Mr. Ajaj was guilty of Mr. Gomez's allegations...this claim essentially asserts that that the hearing officer's decision was arbitrary and capricious, in that it was 'based on insufficient evidence.'" [Doc. #275 at p. 25-26]. All other bases, other than those premised on the Administrative Procedure Act ("APA"), were dismissed. Id.

BOP and the U.S. argue that the Court lacks jurisdiction over Claim Three because review of the decision is expressly precluded by statute. Generally, a reviewing court may "hold unlawful and set aside agency action, findings, and conclusions found to be...arbitrary,capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. §706. However, certain decisions made by BOP are exempt from judicial review procedures. See 18 U.S.C. §3625. Specifically, the statute exempts decisions made under 18 U.S.C. § 3621-26 from the APA's judicial review provisions. These provisions include the place of a prisoner's imprisonment and good time credits. §§3621, 3624. The Tenth Circuit has held that 18 U.S.C. §3625 "bars APA review of BOP substantive disciplinary determinations involving the reduction of good time credits." Jordan v. Wiley, 411 Fed. App'x 201, 214 (10th Cir. 2011). Therefore, Mr. Ajaj's APA claim objection the reduction of this good time credits and the place of his imprisonment are expressly barred.

The Tenth Circuit has not addressed whether eligibility decisions for the Step-Down Unit program are also exempt from the APA's review provisions. However, in a recommendation to the court in McMillan v. Wiley, Magistrate Judge Mix found that "pursuant to the clear language of the statute, decisions about where to incarcerate an inmate (which, when ADX is involved, necessarily include consideration of whether an inmate is entitled to be placed in particular units pursuant to the Step-Down Unit Program), fall within §3621." 813 F. Supp.2d 1238, 1256 (D. Colo. 2011). Affirming the recommendation, Judge Daniel held that although this issue is not yet decided, based on the cited authority, the plaintiff's claim would be barred by statute. Id. This Court agrees with Judge Daniels and Magistrate Judge Mix that such a determination involves decisions as to where an inmate is to be placed, and thus is most likely barred by statute. Given the Tenth Circuit's reasoning in Jordan, this Court finds that BOP decisions regarding Mr. Ajaj's placement in the Step-Down Unit program are also barred. See also Redmon v. Wiley, 349 Fed. App'x 251, 256 (10th Cir. 2009).

Therefore, Mr. Ajaj's third claim cannot be reviewed by this Court under the APA and must be dismissed for lack of jurisdiction.

Claim Ten: "Federal Tort Claims Act against Defendant United States of America"

In Claim Ten, Mr. Ajaj asserts several tort claims against the U.S. under the Federal Tort Claims Act ("FTCA"). Specifically, Mr. Ajaj alleges that federal employees were negligent in providing medical care for his irritable bowel syndrome, chronic fatigue syndrome, insomnia, allergy, hands and feet numbness, and chronic back pain. [Doc. #162 at 40-41]. All tort claims against federal employees acting within the scope of their employment must be asserted pursuant to the FTCA. See 28 U.S.C. §2679(b)(1). A civil action brought under the FTCA cannot be instituted "unless the claimant shall have been finally denied by the agency in writing..." 28 U.S.C. §2675(a). After the denial of an administrative claim, the claimant then must assert their tort claim "within two years after such claim accrues or ...within six months after the date of mailing...." 285 U.S.C. §2401(b). Failure to timely file a Standard Form 95 ("SF-95") results in the tort claim being "forever barred." Id.

Mr. Ajaj filed four SF-95s regarding his medical care from 2007 to 2010. Mr. Ajaj filed eight total administrative claims, but only four are relevant to his claims of negligence, medical malpractice, or personal injury. [Doc. #388, Ex. A, ¶2]. The first two SF-95s related to Mr. Ajaj's medical care are clearly untimely. The first SF-95 (Tort Claim TRT-NCR-2007-1204) was filed on December 15, 2006 and alleged that Mr. Ajaj had been exposed to high levels of noise by staff and improperly housed with or nearby mentally ill inmates. Id. at ¶3. As a result, Mr. Ajaj reported that he suffered deprivation of sleep, rest, and peace of mind, as well as other physical and psychological problems. BOP denied Mr. Ajaj's claim on April 23, 2007 by certified mail. The second SF-95 (TRT-NCR-2007-1428) was filed January 8, 2007 alleging thatMr. Ajaj was not receiving medical treatment for his insomnia. This request was denied February 13, 2007. Mr. Ajaj had until October 13 and August 13, 2007, respectively, to file suit on these first two claims. He did not do so, and the present action was not initiated until September 9, 2008.

The second two SF-95s filed for medical reasons are somewhat more problematic. The third SF-95 was filed March 6, 2009 (TRT-NCR-2009-2822) alleging that BOP medical staff refused and/or failed to provide Mr. Ajaj with proper medical treatment and care for his chronic medical problems, such as chronic fatigue, insomnia, allergies, hand and foot numbness, and back and foot problems. Id. at ¶5; Attachment 4. This claim was denied May 19, 2009 by certified mail. The fourth SF-95 was filed on May 14, 2009 and denied on November 18, 2009 (TRT-NCR-2010-4273). In this SF-95 Mr. Ajaj alleged that BOP medical staff failed to provide medical care for...