Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-02564-MSK-OES AHMED MOHAMMED AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, C. CHESTER, J. ZUERCHER, THOMAS G. WERLICH, MARK C. COLLINS, LES SMITH, LISA BRAREN, T. CARPENTER, and "FNU" HUGHSTON, Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO ALERT (SIC) OR AMEND THE JUDGMENT AND/OR FOR RELIEF FROM JUDGMENT UNDER RULE 59(E) AND/OR 60(B)(1)(6)

The Defendants, by William J. Leone, United States Attorney for the District of Colorado and Elizabeth A. Weishaupl, Assistant United States Attorney, hereby file the following Response to Plaintiff's Motion to Alert (Sic) or Amend the Judgment and/or for Relief from Judgment Under Rule 59(e) and/or 60(b)(1)(6) (Docket 233). In response to this motion Defendants state as follows:

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GENERAL INTRODUCTION Plaintiff Ajaj's ("Ajaj") Third Amended Complaint was dismissed on October 20, 2005. The Court dismissed the Third Amended Complaint for lack of jurisdiction because the Ajaj failed to demonstrate that he administratively exhausted his First, Second and Tenth Claims for relief. Nineteen days later, on November 8, 2005, Ajaj filed a motion for extension of time to file a motion seeking relief under Fed. R. Civ. P. 59 and 60. Plaintiff is barred from obtaining relief under Fed. R. Civ. P. 59 as he failed to file his motion within ten days of the entry of judgment. Plaintiff also fails to demonstrate any extraordinary circumstances which would permit reconsideration of the judgment pursuant to Fed. R. Civ. P. 60(b). As a result, the Court should deny the motion. I. ARGUMENT Ajaj argues that the Court must set aside its judgment dismissing his Complaint based on his failure to exhaust his administrative remedies. Ajaj argues that the Court committed error in determining that he failed to meet his burden of demonstrating that he exhausted claims one, two, and ten. (See Motion to Alert (sic) or Amend Judgment and for Relief From Judgment Under Rule 59(e) and/or Rule 60(b)(1)(6) ("Motion to Alter or Amend")). As a result, he argues that he is entitled to relief under Fed. R. Civ. P. 59(e) and 60(b).

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A.

Plaintiff failed to file a motion within 10 days of the entry of judgment and therefore is entitled to no relief under Fed. R. Civ. P. 59(e).

Plaintiff is unable to obtain relief under Fed. R. Civ. P. 59(e) because his motion is untimely. Fed. R. Civ. P. 59(e) provides that "any motion to alter or amend a judgment shall be filed no later than 10 days after the entry of the judgment." Fed. R. Civ. P. 59(e). A litigant may obtain an extension of time to perform an act under the Federal Rules of Civil Procedure by filing a timely motion. However, there are circumstances in which the court has no power to grant such a motion. One of those circumstances is a motion seeking relief under Fed. R. Civ. P. 59. Fed. R. Civ. P. 6(b) specifically provides that the Court has no power to extend the time within which to file a motion for relief under Fed. R. Civ. P. 59(e), "except to the extent and under the conditions stated in [Rule 59]." Fed. R. Civ. P. 59 does not permit extensions for filing. It specifically states that "any motion to alter or amend a judgment shall be filed no later than 10 days after the entry of the judgment." Fed. R. Civ. P. 59(e). In the instant case Ajaj's motion for extension of time was a nullity and his motion to alter or amend was untimely. Entry of judgment occurred on October 20, 2005. (Docket 222). Ajaj had ten days following that date, or until October 30, 2005, within which to file a motion to alter or amend. He filed the request for extension of time on November 8, 2005, nineteen days late. He filed the Motion to Alter or Amend months later, on December 30, 2005. (Docket 233). Thus, the Court lacks the ability to consider

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this motion under Fed. R. Civ. P. 59. Weitz v. Lovelace Health Sys., Inc., 214 F.3d 1175, 1179 (10th Cir. 2000). B. Plaintiff is entitled to no relief under Fed. R. Civ. P. 60(b)(1) or (b)(6) as he has failed to demonstrate any "extraordinary circumstances" entitling him to such relief.

Fed. R. Civ. P. 60(b)(1) and (b)(6) provide in pertinent part that "upon motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons (1) mistake, inadvertence, surprise, or excusable neglect"; or for "(6) any other reason justifying relief from the operation of the judgment." However, "relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir.1990) (citing Ackerman v. United States, 340 U.S. 193, 199 (1950)). The Tenth Circuit has provided guidance on the definition of the term "exceptional circumstances." Exceptional circumstances include the failure to do an act because of unusual circumstances beyond a litigants control. It may include claims that Plaintiff was unable to comply with discovery deadlines or attend settlement conferences because of compelling circumstances beyond their control. Bud Brooks, 909 F.2d at 1440. In the present case, Ajaj does not allege any exceptional or unusual circumstances that prevented him from fully arguing his case. Instead, he argues that with regard to

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some claims, the Court made a "mistake" in not considering evidence before it, and with regard to other claims, he was not required to exhaust these claims. Ajaj's arguments are not sufficient to grant the extraordinary remedy provided by Fed. R. Civ. P. 60. The Tenth Circuit has held that "parties and their attorneys must be held to a reasonably high standard of diligence in observing the courts' rules." Id. Thus, Plaintiff's failure to allege any unusual or extraordinary circumstance preventing him from meeting his burden of proving exhaustion is fatal to his claim for Rule 60(b) relief. Even if Plaintiff could establish that the Court erred as a matter of law he would still be required to establish unusual circumstances because "relief under Rule 60(b)(1) will not lie to correct an error of law, where the appellant fails to demonstrate unusual circumstances warranting relief under Rule 60(b)(6)." Id. The underlying reason for this high standard is the axiom that a Rule 60(b) motion is not a substitute for an appeal. Bud Brooks, 909 F.2d at 1440. Although Ajaj seeks relief under both Rule 60(b)(1) ("mistake, inadvertence, or surprise") and 60(b)(6) (any other reason justifying relief), it must also be noted that "rule 60(b)(6) relief is even more difficult to attain" than that afforded under other portions of Rule 60(b). Zurich North America v. Matrix Service, Inc., 426 F.3d 1281, 1292 (10th Cir. 2005). Such relief is appropriate only when "it offends justice to deny such relief." Id. (citing Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996)). Here, where a litigant simply failed to meet his burden of proof, first by failing to include facts in this complaint sufficient to show exhaustion and then by failing to establish it in relation to a specific motion to dismiss, there is no such offense to justice. 5

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The Court dismissed Ajaj's complaint because it found that he had failed in his burden to demonstrate complete administrative exhaustion. (Docket 221 ("Order")). Ajaj bore the burden of demonstrating exhaustion of administrative remedies for all claims raised against all the Defendants. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003), cert. denied, __ U.S. __, 125 S.Ct. 344 (2004) (holding that there is "no inequity of placing the burden of pleading exhaustion on the prisoner"). The Court correctly dismissed Ajaj's Complaint because "a complaint that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted." Id. at 1210 (citation omitted). It dismissed the Complaint due to Ajaj's failure regarding his burden of proof. (Docket 221, at 11). Ajaj had multiple opportunities to meet this burden. He filed a response that was over 95 pages in length with hundreds of pages of miscellaneous attachments. In Ajaj's response, he failed to specify or highlight which of these attachments demonstrated exhaustion regarding his claims. In his Motion to Alter or Amend, Ajaj fails to allege any unusual or exceptional circumstances that prevented him from providing this information to the Court. As a result, Ajaj has failed to demonstrate any reason justifying relief under Fed. R. Civ. P. 60(b). 1. Plaintiff fails to demonstrate any mistake or unusual circumstance regarding his failure to exhaust claim one

The Court's Order:

Ajaj's first claim for relief can be described as follows: in "[c]laim one Plaintiff alleges that his conditions of confinement at ADX are so atypical as to create a liberty 6

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interest of which he was deprived without Due Process when he was transferred to ADX. Specifically, he contends that he was not provided notice of his transfer to ADX or an opportunity to be heard before that transfer was effectuated. In addition, the Plaintiff appears to contend that the lack of defined procedures by which inmates at ADX can be admitted to a "step-down" program are . . . arbitrarily applied" (Order, Docket 221, at p. 6). Ajaj alleges a violation of his due process rights stemming from an alleged failure to give him notice and an opportunity to be heard prior to his transfer to the Administrative Maximum facility in Florence, Colorado ("ADX"). Thus, the Court reviewed the Administrative Remedies ("AR") proffered by Plaintiff to determine if he had raised and exhausted this claim. It reviewed AR 290668 and AR 363825, which were attached to Ajaj's Response. The Court found that AR 290668 did not challenge the fact that Ajaj "was not permitted to review and sign the progress report [or] . . . assert that he was entitled to some form of pre-transfer hearing or other procedural protection that was denied." (Order at p.7). The Court also found that a "reasonable prison official reviewing the Step 3 appeal [of AR 290668] would consider it a request for reconsideration of his transfer based on corrected information, not a challenge to the sufficiency of the process he received at the time of the transfer to ADX." Id. The Court reviewed AR 363825 with regard to claim one. It found that this AR was untimely. It had been filed on January 10, 2005, long after the first Complaint of December 30, 2003 was filed, and after the Third Amended Complaint was filed. The Court noted that in his Response, Ajaj also failed to proffer any other AR substantiating 7

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his exhaustion of this claim. It therefore found that Ajaj had failed in his burden to demonstrate exhaustion of Claim one, and that this was sufficient basis to "dismiss the entire Complaint." (Order at p. 8) (citing Ross, 365 F.3d at 1189 - 92). Ajaj's Argument in the Motion to Alter or Amend: In the Motion to Alter or Amend Ajaj presents a variety of arguments, some of which are contradictory, with regard to the first claim. He first argues that he never intended to assert this claim throughout trial. He states that claim one "only related to my co-plaintiff Mr. Mosquerra and when he was dismissed from the case plaintiff was under the impression that he must demonstrate exhaustion even if he has no intention to proceed with claim one." (Motion to Alter, p. 4). The fact that Ajaj asserted a claim that he admits that he had no intention of pursuing is not sufficient for Rule 60(b) relief. Ajaj next argues with respect to AR 29066, and without citation to any legal authority, that he did not have to raise and exhaust these claims throughout the process. He does not dispute that he failed to take any steps to exhaust AR 29066 and therefore, the Court could deny his Rule 60(b) motion on this ground. Finally, Ajaj argues that the Court erred in not examining AR 286714, 302265 and 317901. (Motion to Alter at p. 7). This argument has no merit. These ARs are either incomplete or abandoned and therefore cannot be used to establish exhaustion. It is axiomatic that an inmate who begins an administrative procedure but does not complete it has not adequately exhausted his administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 - 33 (10th Cir. 2002). Further, an inmate's grievance does 8

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not have to specifically articulate legal theories, but it must be sufficiently specific as to give notice of the grievance to the prison officials of the type of problem of which the inmate complains. Johnson v. Johnson, 385 F.3d 503, 517 - 18 (5th Cir. 2004). The ARs cited by Plaintiff do not meet this test. AR 286714 dealt only with a claim to be released from isolation. It does not contain any allegation that his transfer to ADX in any way violated his due process rights. AR 302265 complained of release from isolation but did not deal with an opportunity for notice or to be heard regarding transfer. Finally, AR 317901 sought release to step down. Plaintiff does not dispute that this AR was abandoned and, therefore, cannot be used as a basis for exhaustion of Ajaj's due process claim. Ajaj does not argue that he was prevented in any way by any unusual circumstance from providing the Court with citation to any AR that would demonstrate complete exhaustion. Thus, Fed. R. Civ. P. 60(b) relief is inappropriate. As Ajaj failed to exhaust claim one, his entire Complaint was properly dismissed, and the Motion to Alter or Amend should be denied on this ground alone. 2. The Plaintiff fails to demonstrate that he is entitled to Rule 60(b) relief with regard to Claim Two.

The Court's Order: Claim Two asserted that "Defendants' policies and practices substantially burden the Plaintiff's right to freely exercise [his] religion in violation of the First Amendment, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized

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Persons Act." (Order at 8). The Court noted that Ajaj did not specifically identify the "nature in which Mr. Ajaj's religious rights is allegedly burdened," but found that "paragraph 41 of the Third Amended Complaint allege[d] that Mr. Ajaj is prohibited from engaging in congregate religious services and paragraph 44 allege[d] denial of access to religious chaplains." Id. Ajaj filed a ninety-five page Response to the Motion to Dismiss. He discussed claim two on page 23 -29 of the Response. The Defendant had identified three AR's, AR 302265, 304468 and 254512, as possible grievances addressing this claim, but as the Court properly noted, the Response did not identify or refer to any specific grievance purporting to exhaust this claim. After review, the Court correctly found Ajaj had also failed to exhaust this claim. Ajaj fails to demonstrate any mistake coupled with any unusual circumstance justifying Fed. R. Civ. P. 60(b) relief. Ajaj does not dispute that the AR's referenced by the Court fail to exhaust claim two against the individual defendants. Instead, Ajaj argues that the Court committed error in not reviewing additional administrative remedies ("AR") 314517, 317630 and 348876. (Motion to Alter or Amend at p. 2.) He claims that these AR's demonstrate exhaustion and that, as a result, the Court committed legal error in granting the motion to dismiss. However, a Rule 60(b) motion is not a substitute for an appeal. Bud Brooks,

909 F.2d at 1440. Ajaj cannot simply point to an alleged mistake of fact or law, but

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instead, he must demonstrate extraordinary or unusual circumstances in order to obtain this relief. Id. In addressing claim two in his response, Ajaj had referenced an attachment, but that attachment, AR 254512, concerned allegations regarding activity at Edgefield. Ajaj does not dispute that this AR did not administratively exhaust claims arising from incarceration at ADX-Florence. Two of the AR's Ajaj now cites are not ones that he exhausted prior to the filing of this complaint. AR 317630 was exhausted on March 31, 2004 and AR 348876 were exhausted on December 18, 2004. Thus these AR's were not exhausted prior to the filing of Ajaj's Complaint on December 30, 2003. Even if he had specifically pointed them out in the Response to the Motion to Dismiss, they would not have been timely. AR 314517, which is attached to Ajaj's Motion to Alter, was apparently exhausted on December 5, 2003. Ajaj also had two opportunities to provide this AR to the Court. He failed to attach it to the Third Amended Complaint. He also failed to refer to it in the body of his Response. It is unknown whether it was provided in the two inches of miscellaneous documents attached to the Response filed with the Court. However, this AR was not attached to the copy of the Response provided to Defendants, and thus was not referred to in the Motion to Dismiss or the Reply. In addition, even if the Court were to consider this "new" AR 314517, it would still be insufficient to establish exhaustion or permit relief under Fed. R. Civ. P. 60(b).

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The "new" AR does not specifically identify any of the Defendants who allegedly violated Ajaj's constitutional rights. Although a grievance need not identify individuals with precision, particularly where the inmate complains of systematic problems, where discrete acts are involved, i.e. a claim that a Defendant has prevented Ajaj from seeing an imam or from participating in congregate worship services, an inmate may be required to identify by name or function the responsible individuals involved in an individual manner. See Johnson, 385 F.3d at 522 - 2. Finally, Ajaj's Motion to Alter or Amend fails to mention any extraordinary circumstance or unusual occurrence that prevented him from pointing out this AR in his Response or from providing a copy to the Defendants. A Rule 60(b) motion is not the place to provide additional evidence not presented to the Court in considering a Motion to Dismiss particularly where plaintiff possessed such evidence. Therefore, relief under Fed. R. Civ. P. 60(b) is inappropriate and the motion must be denied.

3.

Ajaj failed to demonstrate that he was entitled to Rule 60(b) relief regarding claim 10.

The Court's Order: The Court found that Ajaj's tenth claim for relief alleged that "Defendants confiscated Mr. Ajaj's property without affording him due process." Ajaj filed two AR's concerning this issue, 287514 and 292038. The Court found that Ajaj's failure to obtain a confiscation form to seek return of his property resulted in his failure to administratively exhaust this issue. (Order at p. 10).

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Ajaj fails to establish entitlement to Rule 60(b) relief: Ajaj first argues that he was not required to obtain any confiscation form, nor was he required to request that his property be returned. (Motion to Alter, at p. 2). He did not raise this argument in his Response to the Motion to Dismiss. He does not argue that there was any unusual or exceptional circumstance preventing him from raising this argument in the Response. He next argues that in fact he did obtain a confiscation form and "resolved the issue of confiscation informally." Thus, even if this argument had merit, he abandoned further process and thus did not exhaust the claim. By this admission he concedes that he did not fully exhaust the grievance, rather he resolved it to his satisfaction informally. The Court could dismiss the entire Complaint based on this claim alone. As a result, Ajaj has failed to demonstrate any mistake or inadvertence or unusual or extraordinary circumstances that would entitle him to relief under Fed. R. Civ. P. 60, and his motion must be denied. C. Qualified Immunity and Failure to State a Claim

To the extent that the Third Amended Complaint the Court grants any relief under Fed. R. Civ. P. 60(b), and the Complaint is not dismissed based on a failure to exhaust administrative remedies, the Complaint still must be dismissed as the Defendants are entitled to qualified immunity based on these claims. In addition, the facts as alleged simply fail to state a claim upon which relief can be granted. The Court did not consider these issues in its order dismissing the case for failure to exhaust. However, these arguments were fully addressed in the motion to Dismiss and are incorporated herein as if

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fully stated. However, if the case is not dismissed, it would have to consider the issues and determine if dismissal was appropriate on these grounds prior to commencing any further proceedings on the Complaint.

WHEREFORE, the Defendants respectfully request that the Court deny the Motion to Alter or Amend. Respectfully submitted this 23rd day of January, 2006 . WILLIAM J. LEONE United States Attorney

______________________ By: Elizabeth Weishaupl Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (T) (303) 454-0100 (F) (303) 454-0404 [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January 23, 2006, electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses:
_____________________________________ _____________________________________ _____________________________________, and I hereby certify that I have mailed or

served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:

Ahmed Mohammad Ajaj (mail) 40637-053 Florence - ADX P.O. Box 8500 Florence, CO 81226 Jeffrey Scott Durham (mail) 32060-083 Florence - ADX P.O. Box 8500 Florence, CO 81226 Dandenis Munoz Mosquera (mail) 37459-053 Florence - ADX P.O. Box 8500 Florence, CO 81226

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Rezaq Omar (mail) #20267-016 Florence - ADX P.O. Box 8500 Florence, CO 81226 Theresa Montoya (mail) Federal Correctional Institution P.O. Box 8500 Florence, CO 81226

s/Elizabeth A. Weishaupl Elizabeth A. Weishaupl Attorney for Defendant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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