Free Motion to Clarify - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. ROBERT A. HOOD, in his official capacity, RON WILEY, in his official capacity, and MICHAEL NALLEY, in his official capacity, Defendants.

DEFENDANT HOOD'S MOTION TO CLARIFY OR AMEND

Defendant Robert Hood hereby moves for clarification or amendment of this Court's Order Granting Qualified Immunity and Dismissing Claims (Doc. 260; filed December 22, 2006). In support of this motion Defendant Hood states as follows: 1. On July 28, 2006, Defendants Robert A. Hood, James Burrell, David

Duncan, C. Chester, and J.C. Zuercher filed a Motion for Summary Judgment (Doc. 229). Plaintiff filed a response to that motion (Doc. 239), and Defendants filed a reply (Doc. 245). 2. At the Final Pretrial Conference held on July 19, 2006, this Court allowed

Plaintiff to add as Defendants Ron Wiley, the current Warden of ADX, and Michael

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Nalley, the Regional Director, in their official capacities only, to his Complaint in order to pursue injunctive relief against them. (Doc. 225.) 1 3. On December 22, 2006, this Court issued an Order granting Defendants'

Summary Judgment Motion on most of the issues raised in the motion and finding that qualified immunity barred most of Plaintiff's claims. Order Granting Qualified Immunity and Dismissing Claims (Doc. 260). The Court found that the only claim that remains is Claim 3(B), Plaintiff's procedural due process claim regarding his continued detention at ADX allegedly without a meaningful right to step down. Id. at 19. With respect to that claim, the Court also ruled that because Mr. Ajaj had "identified no caselaw directly on point which demonstrated that Mr. Hood's conduct was a clear violation of the law at any time," Mr. Hood was entitled to qualified immunity. Id. at 20. 3. The Court further ruled that "Mr. Ajaj retains his official capacity claim

against Mr. Wiley and Mr. Nalley, which by operation of law is a claim against ADX. The Court deems this also to be an official capacity against Defendant Hood." Id. at 2021 (internal citation omitted). 4. Defendant Hood's reading of this portion of the Court's order is that

Plaintiff may pursue injunctive relief under Claim 3(B) against Mr. Hood in Mr. Hood's official capacity. However, as demonstrated in the declaration from Mr. Hood filed with

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As of the date of this motion, Defendants Wiley and Nalley have not been served. 2

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Defendants' summary judgment motion, Mr. Hood is no longer the Warden at ADX and is no longer employed by the Bureau of Prisons. (Federal Officer's Motion for Summary Judgment, Ex. A-9, Declaration of Robert Hood, at ¶ 1 ("I formerly served as Warden at the United States Department of Justice, Federal Bureau of Prisons ("Bureau") facility known as the United States Penitentiary, Administrative Maximum ("ADX"), located in Florence, Colorado from July 28, 2002 to April 17, 2005.").) Mr. Hood retired from the Bureau of Prisons in April 2005. (Id. ("I was employed by the Bureau in positions of increasing responsibility from December 27, 1981 until I retired on April 17, 2005.").) Therefore, Defendant Hood maintains that Plaintiff may not pursue injunctive relief against him and that he should be dismissed from this action. Tara Enterprises, Inc. v. Humble, 622 F.2d 400, 401 (8th Cir. 1980) (finding action for injunctive relief against former police chief moot because he "no longer possessed any official power"); Blackburn v. Goodwin, 608 F.2d 919, 925 (D.C. Cir. 1979) (dismissing official capacity claim for injunctive relief where defendant was no longer in the position he held when the actions at issue occurred and thus did "not have the official capacity necessary to enable him to comply with the injunctive relief sought"); see also Goines v. Pugh, 152 Fed.Appx. 750, 752 (10th Cir. 2005) ("Courts will usually substitute a new warden as a respondent in a particular action if it is appropriate to do so.") (copy attached as Ex. A). 5. The dismissal of Mr. Hood from this action will not affect Plaintiff's ability

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to obtain the injunctive relief he seeks if he is successful at trial. This Court held that Plaintiff may pursue the injunctive relief under Claim 3(B) against Mr. Wiley, who is the current Warden at ADX, and against Mr. Nalley, who is the Regional Director. Order at 20-21. 6. Accordingly, Defendant Hood asks this Court to clarify which Defendants

that remain with respect to Claim 3(B). Defendant Hood maintains that, in light of the Court's rulings, the only proper defendants for that Claim are Mr. Wiley and Mr. Nalley, and that the Court's Order should be amended to make clear that this Claim is directed only against those two Defendants. 7. Pursuant to Local Rule 7.1A, undersigned counsel conferred with Plaintiff's

counsel regarding this motion. Plaintiff's counsel stated that she did not oppose the filing of the motion but that she reserved the right to file a response to the motion after having an opportunity to consider it and discuss it with her client.

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Respectfully submitted this 9 th day of January, 2007. TROY A. EID United States Attorney

By:

s/ Amy L. Padden Amy L. Padden Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 9 th day of January, 2007, I electronically filed the foregoing DEFENDANT HOOD'S MOTION TO CLARIFY OR AMEND with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Carmen Nicole Reilly [email protected] [email protected] John Robert Riley [email protected] and served the same on the following non-CM/ECF participants via electronic mail: Christopher Synsvoll, Esq., as designated agent on behalf of the United States and the individual defendants, [email protected]

s/ Amy L. Padden Amy L. Padden Office of the U.S. Attorney

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