Free Response to Motion - District Court of Colorado - Colorado

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Civil Action Number 03-cv-01959-MSK-PAC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger

AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

PLAINTIFF' RESPONSE TO FEDERAL OFFICERS' MOTION FOR S SUMMARY JUDGMENT

COMES NOW Plaintiff Ahmad M. Ajaj ("Plaintiff"), by and through his counsel Montgomery Little Soran Murray & Kuhn, P.C., in opposition to the Federal Officers' Motion for Summary Judgment. Triable issues of fact exist with regards to all of the claims upon which Defendants seek summary judgment. SUMMARY JUDGMENT STANDARD

The Defendants' motion for summary judgment on Mr. Ajaj' claims should be s denied because there are genuine issues of material fact which must be resolved by the Court. The Court should examine depositions, answers to interrogatories, admissions, affidavits and the like, and determine if there is a genuine issue of material fact. e.g.

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F.R.C.P. 56; see also Beard v. Banks, 126 S. Ct. 2572, 2578 (U.S. 2006) (citation omitted). Summary judgment is drastic and should be applied with caution so that the

parties will have a trial on any bona fide factual issues. Bethea v. Crouse, 417 F.2d 504, 508-509 (10th Cir. 1969). While the trial court "may pierce the pleadings and determine from the depositions, admissions, and affidavits whether material issues of fact exist, the pleadings should be construed liberally in favor of the party opposing the motion." Id. As the non-moving party, Mr. Ajaj is entitled to have all justifiable inferences drawn in his favor. Beard v. Banks, 126 S. Ct. 2572, 2578 (U.S. 2006) (citation omitted). While the Court must distinguish between genuine issues of material fact and disputed matters of professional judgment; where Mr. Ajaj presents fact-based or expert-based refutation, by affidavit or otherwise, the requirements of F.R.C.P. 56(e) are satisfied and summary judgment is inappropriate. e.g. Id. at 2580.

CLAIMS AND DEFENSES UPON WHICH JUDGMENT IS SOUGHT I. Claim 2: Eighth Amendment Deliberate Indifference Claim The Federal Officers Hood, Burrell and Duncan are not entitled to qualified immunity on Claim Two. Government officials are not entitled to qualified immunity or shielded from civil damages when their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Saucier v. Katz, 533 U.S 194, 200-201 (2001); see also Maestas v. Lujan, 351 F.3d 1001, 1001 (10th Cir. 2003.) A. Burden of Proof and Elements Plaintiff agrees that he initially bears the burden of proof and agrees with the Defendants'recitation of the elements of qualified immunity. However, Plaintiff does

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not have to rebut defendants' factual allegations because "we view all evidence in the record in the light most favorable to plaintiff." Reynolds v. Powell, 370 F.3d 1028, 10301031 (10th Cir. 2004) (citations omitted). Plaintiff has met his burden for overcoming the qualified immunity defense with respect to Claim Two raised against the Federal Officers in their individual capacities. Accordingly, the Defendants are not entitled to qualified immunity and the Defendants' motion for summary judgment should be denied. B. Elements of Plaintiff' Eighth Amendment Claim Challenged by the Defendants s 1. Plaintiff can demonstrate a triable issue of fact as to whether his Eighth Amendment Rights were violated.

Plaintiff agrees with Defendants that there is both a subjective and objective component to state a claim for deliberate indifference to medical needs under the Eighth Amendment. To state a claim for deliberate indifference to medical needs under the Eighth Amendment, the medical need must be sufficiently serious to satisfy the objective component. Hunt v, Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Courts have held that a medical need is sufficiently serious "if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (further quotation omitted). In terms of the subjective component, deliberate indifference, a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, "by failing to take reasonable measures to abate it." See Farmer, 511 U.S. 825, 847 (1994). The Eighth Amendment also protects against future harm to an inmate. Hunt v,

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Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999); See Helling v. McKinney, 509 U.S. 25, 33 (1993). Objective Component: Plaintiff can meet the objective element of the Eighth Amendment deliberate indifference claim that he had a serious medical need that had been diagnosed by a physician as mandating treatment. a. Plaintiff' medical record contains multiple orders from physicians that he s

be housed in a smoke free environment. (See Plaintiff' response to interrogatories no. s 8-9, pg. 5-8 attached as Exhibit B-1 ; Plaintiff' Deposition, pg. 80, line 19-25 to page s 146, line 21 attached as Exhibit B-2 and entry by Lawrence Leyba, D.O. dated January 21, 2003 attached as Exhibit B-3.) This was of particular concern for Plaintiff due to the fact that he only has one lung due to cancer which required removal of his left lung in June of 1997. (See Declaration of Ahmed Ajaj attached as Exhibit B-4.) b. Plaintiff continuously complained verbally and in writing to Hood,

Duncan and Burrell regarding this condition and filed administrative grievances regarding his need to be placed in a smoke free environment. (See Declaration of Ahmed Ajaj attached as Exhibit B-4; See letter to Defendant Hood dated September 23, 2002 attached as Exhibit B-5 & letter to Defendant Burrell dated March 6, 2003 attached as Exhibit B-6.) c. Plaintiff was not kept in a smoke free environment from the period of his

incarceration at ADX from September 2002 until July 2005. Declaration of Ahmed Ajaj attached as Exhibit B-4. d. Plaintiff has an expert that will testify to and describe the serious risk of

future harm to Plaintiff as a result of his exposure to environmental tobacco smoke. (See

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expert report of Dennis Clifford, M.D. attached as Exhibit B-7). Plaintiff has exhibited numerous medical symptoms as a result of his exposure to environmental tobacco smoke. (See Plaintiff' responses to interrogatories, pg. 8-9 attached as Exhibit B-1.) s e. Defendants do not have an expert witness to challenge the conclusions of

Plaintiff' expert. s f. Defendants argue that there was not a medical transfer request made on

behalf of Plaintiff by any treating physician. Regardless of whether there were 770 medical transfers, Plaintiff had a sufficiently serious medical need that had been diagnosed by a doctor. Defendants had the ultimate authority to request re-designation and could do so without a medical transfer request. (See deposition of Claude Chester, pg. 27, lines 2-16, page 78, line 1-12, attached as Exhibit B-8.) g. Furthermore, the risks associated with second hand smoke are so obvious

that even a lay person would recognize the necessity of an individual with one lung to be in a smoke free environment. Subjective Component: Plaintiff can establish that the Defendants knew of and disregarded a serious a substantial risk of harm, "by failing to take reasonable measures to abate it." Mr. Ajaj complained verbally and in writing to Defendant Burrell, Hood and Duncan regarding his need to be placed in a smoke-free environment. (Declaration of Ahmed Ajaj attached as Exhibit B-4 & letters to Defendant Hood and Burrell attached as Exhibits B-5 & B-6.) In an e-mail to Defendant Burrell on March 10, 2003 Dr. Leyba advised of Mr. Ajaj' need to be in a smoke free unit. (See Exhibit B-9). A s memorandum was also prepared for Mr. Burrell regarding Mr. Ajaj' need for a smoke s

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free environment. (See Exhibit B-21). Further Defendant Duncan testified that he had knowledge of Mr. Ajaj' need to be in a smoke-free unit. (See deposition of Andrew s Duncan, pg. 76, lines 10-25 attached as Exhibit B-10.) As of June 24, 2004, Rod Bauer, the health director at the ADX acknowledges that Mr. Ajaj was not being housed in a smoke free environment. (See e-mail dated June 24, 2004 to Claude Chester from Rod Bauer, attached as Exhibit B-11.) Defendant Burrell and Duncan as associate wardens and Defendant Hood as warden have the duty to provide for the safekeeping and well-being of the prisoners and have a statutory duty, under 18 U.S.C. §4042, to adequately provide for Plaintiff' s safekeeping and care. The Defendants took no reasonable steps to respond to or abate the risk of harm to Plaintiff in order to comply with doctor' orders. s Each of these Defendants was aware of Mr. Ajaj' need to be in a smoke free s environment. These Defendants did not take reasonable measures to abate the risk of harm in keeping him in smoking units at the ADX until 2005. (See e-mail dated June 24, 2004 to Claude Chester from Rod Bauer, attached as Exhibit B-11; deposition of Andrew Duncan, pg. 77, lines 4-6 attached as Exhibit B-10 & Declaration of Ahmed Ajaj attached as Exhibit B-4). The Defendants' failure to follow doctor' instructions s demonstrates they deliberately disregarded a substantial risk of harm to Plaintiff' s medical needs by keeping him in an environment that was not smoke-free. Plaintiff' s medical needs are sufficiently serious because "it is one that has been diagnosed by a physician as mandating treatment." Id. quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (further quotation omitted).

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As the Supreme Court stated, "We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering." Helling v. McKinney, 509 U.S. 25, 33 (1993). 2. The constitutional right was clearly established at the time the acts were committed.

As Defendants state in their Motion for Summary Judgment, for the law to be clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts have found the law as the plaintiff maintains." Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). The Eight Amendment claim is clearly established. There is both a Supreme Court decision and Tenth Circuit decision directly on point. Helling v. McKinney, 509 U.S. 25, 35 (1993); Hunt v, Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). The Tenth Circuit and the Supreme Court have held that the Eighth Amendment protects against future harm to an inmate. Id. Additionally, delays in treatment which exacerbate the prisoner' medical condition are considered sufficient to state an Eighth Amendment s claim. See Hunt, 199 F.3d at 1224. Prison officials are deliberately indifferent to a prisoner' serious medical needs when they deny, delay or intentionally withhold medical s treatment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Defendants'argue that the law is not clearly established because there is no determination of what "an unreasonably high level of smoke constitutes." This argument has already been rejected by this Court in its May 11, 2006 Order when it correctly opined: "construing the alleged facts most favorably to Mr. Ajaj, any amount of secondhand smoke was unreasonably high given the doctor' recommendation, and the failure to s

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move him to a smoke-free, low altitude environment constituted a delay in the doctor' s prescribed course of treatment." (Docket No. 186, at 17.) Defendants argue that because there was not a 770 medical transfer stating that Plaintiff needed to be moved to a smoke free environment, there was no delay on the part of Hood, Burrell and Duncan. Regardless of whether there was a 770 medical transfer, there are multiple orders in Plaintiff' record describing his need to be in a smoke free s environment. Defendants were the individuals responsible for providing for Plaintiff' s safekeeping and had the authority and responsibly to comply with physicians' instructions. Defendants failed to do this. Moreover, the question of how much smoke is too much is a factual determination that must be made at trial and does not change the fact that the law is clearly established in both the Tenth Circuit and by the Supreme Court. See Helling, supra; Hunt, supra. Defendants can be held liable for exposing a prisoner to environmental tobacco smoke that poses an unreasonable risk of serious damage to his future health. Helling, 509 U.S. at 33. C. Elements of Plaintiff' Eighth Amendment Claim Challenged by the Defendants s Concerning Housing in a High Altitude Environment. 1. Plaintiff can demonstrate a triable issue of fact as to whether his Eighth Amendment Rights were violated.

Defendants allege that Plaintiff cannot prove the objective prong of the Eighth Amendment deliberative indifference claim because he cannot prove that he had a "serious medical need" to be housed at a lower altitude than that altitude of ADX.

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a.

In July 1997 Mr. Ajaj underwent a left pneumonectomy as a result of a

carcinoid tumor. (See Exhibit B-12 transfer summary from U.S. Medical Center for Federal Prisoners ("USMCFP"), Springfield, Missouri dated July 7, 1997.) b. It was recommended by Springfield medical staff that Ajaj not be housed

in a facility above 2000 feet due to the loss of one of his lungs. (See Exhibit B-12 and B13 transfer summary dated February 19, 1998 and note by Terry Finnegan.) The transfer summary dated February 19, 1998 indicates Mr. Ajaj will experience limited exercise capacity at facilities more than 2,000 feet above sea level and should be considered for facilities lower than that. c. Subsequently, Mr. Ajaj was transferred out of Florence, Colorado in

January 1998 to USP Beaumont in March 1998. d. After the events of September 11, 2001, Mr. Ajaj was placed in

administrative detention and ultimately transferred to back to Colorado to the ADX. (See Declaration of Ahmed Ajaj attached as Exhibit B -4). Since his arrival at ADX, Mr. Ajaj has experienced symptoms he attributes to being in Colorado, such as feelings of shortness of breath and feels he is unable to exercise which he attributes in part to the altitude of the ADX. (See Plaintiff' responses to interrogatories nos. 7-11, pg. 4-9 s attached as Exhibit B-1). Next, Defendants allege that Plaintiff cannot meet the subjective prong of the Eighth Amendment claim. e. In a memorandum to Hood on September 13, 2002, it indicates that "it

was recommended by Springfield medical staff that Ajaj not be housed in a facility above

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2000 feet due to the loss of one of his lungs. (See memorandum for Robert Hood dated September 13, 2002 attached as Exhibit B-14). f. Upon his arrival to ADX, Mr. Ajaj immediately advised the Defendants

Hood, Burrell and Duncan of his need to be in a low altitude environment. (See Declaration of Ahmed Ajaj attached as Exhibit B -4). Mr. Ajaj, subsequently filed administrative grievances regarding this issue. Id. g. Defendants were aware of the instructions that Mr. Ajaj would function

best at a low altitude environment. 2. The law was clearly established when the violation occurred.

The Eight Amendment claim is clearly established. As discussed above, there is both a Supreme Court decision and Tenth Circuit decision directly on point. Helling v. McKinney, 509 U.S. 25, 35 (1993); Hunt v, Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). The Tenth Circuit and the Supreme Court have held that the Eighth Amendment protects against future harm to an inmate. Id. Additionally, delays in treatment which exacerbate the prisoner' medical condition are considered sufficient to state an Eighth Amendment s claim. See Hunt, 199 F.3d at 1224. Prison officials are deliberately indifferent to a prisoner' serious medical needs when they deny, delay or intentionally withhold medical s treatment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Defendants'argue that the law is not clearly established because there was no treating physician that ordered Plaintiff be transferred to a lower altitude. However, this is contrary to the Plaintiff' medical record. In 1998, Plaintiff was transferred from s Colorado to a lower altitude based on physicians'recommendations. It was only after September 11, 2001 that Plaintiff was transferred back to Colorado.

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Further, as this Court opined in its May 11, 2006 Order: "construing the alleged facts most favorably to Mr. Ajaj... the failure to move him to a smoke-free, low altitude environment constituted a delay in the doctor' prescribed course of treatment." (Docket s No. 186, at 17.) II. A. Claim Three: Eighth Amendment Conditions of Confinement Claim. Burden of Proof and Elements. The elements for qualified immunity have already been set forth. See Section I.A, supra. B. Elements of Plaintiff' Eighth Amendment Claim Challenged by Defendants s

1.

Plaintiff can demonstrate a triable issue of fact as to whether the conditions of confinement at ADX violate his Eighth Amendment Rights.

The conditions of confinement at ADX in regards to Mr. Ajaj create a triable issue of fact regarding whether his confinement violates the Eight Amendment. a. Mr. Ajaj' confinement at ADX includes extreme social isolation, limited s

outdoor activity which at times is not provided for weeks at a time, lock down for approximately 23 of 24 hours a day, limited ability to speak to other inmates unless yelling, limited access to telephones, limited no-contact visits, restraints each time he is moved within the institution, strip searches when enters and leave cells and exposure to high levels of noise. When outdoor recreation is allowed, it is in cages in the outdoor recreation yard. Mr. Ajaj has testified he does not feel able to exercise at ADX. (See Exhibit B-15 Ahmed Ajaj' deposition pgs. 143 line 10-25 and 144). Further, outdoor s recreation at the ADX is often cancelled and is not regularly provided. (Declaration of Ahmed Ajaj attached as Exhibit B -4).

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The substantial agreement in cases in this area is that "some form of regular outdoor exercise is extremely important to the psychological and physical well being of inmates, and some courts have held a denial of fresh air and exercise to be cruel and unusual punishment under certain circumstances." See Bailey v. Shillinger, 828 F.2d 651, 653. In Bailey, the prisoner admitted that he is allowed to exercise outdoors for one hour per week. Mr. Ajaj, however, alleges that outdoor recreation is often not provided at ADX for weeks at a time. (Declaration of Ahmed Ajaj attached as Exhibit B -4). Also, Mr. Ajaj was denied access to the outdoor yard for one year after he arrived at ADX due to his single recreation status. Id. The conditions of the outdoor recreation yard to not provide Mr. Ajaj the ability to adequately exercise at ADX. See Plaintiff' response to s interrogatories no. 10 attached as Exhibit B-1). Dr. Lebya, one of Mr. Ajaj' treating s physicians at the ADX indicated Mr. Ajaj was encouraged to get fresh air and exercise in order to breathe deep. (See note by Dr. Lebya dated March 10, 2003 attached as Exhibit B-16). Having full breathing capacity is important for Mr. Ajaj, given his lung condition. He is unable to get adequate fresh air and exercise at ADX. b. Mr. Ajaj verbally and in writing complained to Hood, Burrell, Chester and

Duncan of his conditions of confinement. The Defendants were also aware of the conditions of confinement at ADX as a result of their employment as warden and associate wardens. c. Mr. Ajaj' condition of confinement at the ADX further violates the Eight s

Amendment because he is to remain at ADX indefinitely. Despite having complied with the requirements for stepping down within ADX, he has continued to be denied placement in the step-down program.

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d.

On September 11, 2001, Mr. Ajaj was placed in administrative detention

and subsequently transferred to ADX on September 4, 2002. The Bureau of Prison's decision to place Mr. Ajaj in administrative detention and transfer him to the ADX occurred as a result of September 11, 2001. (See Deposition of Gregory L. Hershberger pg. 44 line 3-25 attached as Exhibit B-17). Now, almost five years later, Defendants assert that "the most critical factor in determining an inmate' readiness to progress to s and through step-down program will be whether the factors, which originally lead to the inmate' placement at ADX, have been sufficiently mitigated to indicate the inmate can s function less successful in a less-restricted unit without posing a threat to the security or orderly running of the institution." See Declarations of Defendants attached to Federal Officer' Motion for Summary Judgment. s e. Defendants could not provide any response as to how Mr. Ajaj is expected

to mitigate his reason for being at ADX when he cannot change the fact of September 11, 2001 or his original conviction. (See Exhibit B-10, Deposition of David Duncan taken on June 21, 2006, pg. 63, 1-25 & pg. 64, 1-12.) Mr. Ajaj' indefinite confinement at ADX s constitutes a violation of the Eighth Amendment. f. Dr. Grassian will provide expert testimony regarding the risk of future

harm as a result of Mr.Ajaj' confinement at ADX. (See Supplemental Expert report s from Dr. Stuart Grassian, attached as Exhibit B-18). g. Defendants Hood, Burrell, Chester and Duncan are liable for Ajaj' s

conditions of confinement. Defendant Hood, as warden of the ADX, was responsible for the safety and care of the staff and the inmates that reside at ADX. See Deposition of Robert Hood taken June 12, 2006, pg. 9, lines 11-22, attached as Ex. B-19). Defendants

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Burrell, Chester and Duncan were also responsible for the conditions of confinement at ADX as associate wardens with responsibilities that included supervision over inmate programs and departments in the ADX. See Depositions of Claude Chester taken June 15, 2006, pg. 12, lines 10-15 attached as Exhibit B-8; Deposition of David Duncan, taken on June 21, 2006, pg. 15, lines 11-25 attached as B-10; Deposition of James Burrell taken on June 14, 2006, pg. 14, lines 1-20 attached as B-20). 2. The law was clearly established at the time of the violation.

The Defendants do not challenge that this law was clearly established at the time the violation. The Supreme Court has ruled that the Eighth Amendment is violated if the conditions of confinement involve the wanton and unnecessary infliction of pain, are grossly proportionate to their crimes, or constituted a deprivation of minimal civilized measures of life' necessities. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Here s Plaintiff' indefinite confinement at the ADX constitutes punishment for a crime that he s did not commit and is a deprivation of minimal civilized measures of life' necessities. s III. A. Claim Three: Due Process Claim. Burden of Proof and Elements. The elements for qualified immunity have already been set forth. See Section I.A, supra. B. Elements of Plaintiff' Due Process Claim Challenged by Defendants Concerning s Plaintiff' Transfer to ADX s Defendants argue that Plaintiff cannot establish personal participation by the Federal Officers in Mr. Ajaj' transfer to the ADX. Plaintiff agrees that there is no s evidence to support personal participation in his transfer to the ADX by Defendants Burrell, Chester and Duncan.

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Defendants also argue that there was no personal participation by Defendant Hood in Mr. Ajaj' transfer to ADX. However, part of Defendants argument that Mr. s Ajaj' transfer to ADX did not violate his due process is that upon his arrival to ADX, an s inmate may raise any concerns about his transfer during his initial classification. At this point, Defendant Hood was the individual who had the authority to recommend transfer or re-designate Mr. Ajaj to another institution in order to remedy the unconstitutional transfer. (See Deposition of David Duncan, pg. 21, lines 2-10 attached as Exhibit B-10). Accordingly, to the extent Defendants argue Plaintiff' transfer was constitutional s because he could have challenged his transfer upon arrival at the ADX, Defendant Hood did have personal participation in denying Plaintiff' challenge of his transfer to the ADX s and he is an appropriate Defendant with regards to this claim. Finally, in the event personal participation by Defendant Hood is not found, Plaintiff' claim regarding his unconstitutional transfer to the ADX is still appropriate as s to Plaintiff' injunctive relief claim against the Regional Director of the North Central s Region Office and the Warden in their official capacities. Defendants assert Plaintiff was afforded all the process he was due prior to his transfer. Plaintiff received no process whatsoever prior to his transfer to the ADX. He did not receive notice prior to his transfer, he did not receive a hearing or the opportunity to challenge his placement at the ADX. (See Exhibit B-17 deposition of Greg Hershberger pg. 100 lines 20-25, pg. 101 line 1-11). He did not have the opportunity to review and sign his progress review report prepared in anticipation of his transfer. Under 28 CFR § 524.43 the Bureau of Prisons is required to allow an inmate to review and sign this report. (Attached as Exhibit B-22). Greg Hershberger, Regional Director of the

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North Central Regional Office, testified this progress review report was one of the documents he likely would have reviewed when approving Mr. Ajaj' transfer. (See s Deposition of Greg Hershberger pg. 64, line 19-25, pg. 65 lines 1-18 attached as Exhibit B-17 and Progress Review Report dated October, 2001 attached as Exhibit B-27). Second, Defendants argue Plaintiff has no liberty interest in remaining out of the ADX and at another institution and cite to Miller v. Henman to support this proposition. See Defendants Motion for Summary Judgment p. 12; Miller v. Henman, 804 F.2d 421 (7th Cir. 1986). Defendants misstate the holding of Miller v. Henman, 804 F.2d 421 (7th Cir. 1986). Miller dealt with placement of an inmate in the United States Penitentiary at Marion, Illinois, not the ADX as Defendants represent. Second, Wilkinson v. Austin, 125 S.Ct. 2384, 2395 (2005), provides that placement in a Supermax facility is a deprivation of a liberty interest. Defendants cite to Jordan v. Federal Bureau of Prisons, an unpublished opinion, to argue that the Tenth Circuit has factually distinguished the condition at the Ohio Supermax from the conditions at other facilities, including the conditions of confinement at ADX. See Defendants Motion for Summary Judgment p. 13; Jordan v. Federal Bureau of Prisons, No. 04-1104, 2006 U.S. App. LEXIS 14673. However, in Jordan the Court held Mr. Jordan' conditions were not as onerous as in Wilkinson when "1) he admittedly had s frequent contact with staff; 2) the length of his sentence was not affected by the administrative detention; and 3) his confinement was not indefinite but instead limited to the duration of the pending murder investigation." Jordan, 2006 U.S. App. LEXIS 14673, *35-36. Additionally, in Jordan the Court recognized that "on certain occasions the conditions or restrictions Mr. Jordan experienced did differ from both prison

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populations, but these differences stemmed from temporary disciplinary measures resulting from Mr. Jordan' numerous infractions while in administrative detention." Id. s at *36. In Mr. Ajaj' case, his confinement at ADX is not based on his disciplinary s history. See deposition of Greg Hershberger taken on August 11, 2006, pg. 70, lines 1222 attached as Exhibit B-17.) His confinement is also not limited in duration to a pending investigation. Defendants have never indicated when Mr. Ajaj would be able to transfer from ADX. His placement in the ADX is based on circumstances surrounding September 11, 2001 and his original conviction, factors which cannot be changed. (See memorandum of Michael Cooksey to Regional Directors attached as Exhibit B-23 & Male Custody Classification form dated July 2005 attached as Exhibit B-24.) Defendants have not asserted Mr. Ajaj' placement in the ADX is based on any pending investigation s nor have Defendants not provided any legitimate justification for Mr. Ajaj' continued s confinement at ADX. Finally, Jordan is distinguishable as there is a factual discrepancy as to how much contact Mr. Ajaj has with other inmates and staff at ADX. (See expert report of Dr. Metzner attached as Exhibit B-25.) Third, Plaintiff was not afforded the process he was due prior to his transfer to the ADX. Defendants argue that Plaintiff was provided sufficient process because 1) he was able to raise concerns about his transfer upon arrival to the ADX and 2) he was able to raise concerns about his transfer through the Bureau of Prison' Administrative Remedy s Program. However, this is not sufficient process. Mr. Ajaj was not provided with notice, a hearing, an opportunity to review his transferring progress report, or any other type of

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opportunity to challenge his placement at the ADX prior to his transfer. (See Exhibit B-17 deposition of Greg Hershberger pg. 100 lines 20-25, pg. 101 line 1-11). 2. The constitutional right was clearly established at the time of Mr. Ajaj' transfer. s Defendants argue that at the time of Plaintiff' transfer to the ADX on s

a.

September 4, 2002, an inmate had no due process right to remain at a particular institution since Austin v. Wilkinson was not decided until June 13, 2005. b. However, at the time of Mr. Ajaj' transfer in September, 2002, the law s

was clearly established that an inmate has a liberty interest to be free from a restraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 (1995). c. It is not necessary that a case be "fundamentally similar" to demonstrate a

law is clearly established. Hope v. Pelzer, 122 S.Ct. 2508, 2516 (2002). "Officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. d. The determination of whether the prisoner has been subjected to atypical

and significant hardship is a factual issue and inappropriate for a determination in a motion for summary judgment. See Perkins v. Kansas Dep' of Corrections, 165 F.3d t 803, 809 (10th Cir. 1999). e. In this case there is a triable issue of fact regarding whether Mr. Ajaj' s

conditions at confinement at ADX impose an atypical and significant hardship on him in relation to ordinary incidents of prison life. C. Elements of Plaintiff' Continued Confinement Due Process Claim Challenged by s Defendants

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1.

Plaintiff can demonstrate a triable issue of fact regarding whether there has been a violation of his Due Process Rights concerning his continued confinement at ADX. Defendant argues that Plaintiff has been provided with sufficient process

a.

concerning his continued confinement at that the ADX because he receives program reviews, a progress report and can challenge recommendations through the Administrative Remedy Program. b. However, the review process concerning Mr. Ajaj' continued s

confinement at the ADX is meaningless. In 2004, Mr. Ajaj met the criteria to step-down at the ADX, yet was denied the opportunity to step down. (See Progress Review Report dated January 25, 2005 attached as Exhibit B-26.) On July 15, 2005, Mr. Ajaj was recommended for decrease, but was denied decrease due to his original conviction. (See male custody classification form dated July 2005 attached as Exhibit B-24.) A fundamental requirement of due process is that the process that is provided is meaningful. See Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Defendants argue that "the most critical factor in determining an inmate' s readiness to progress to and through step-down program will be whether the factors, which originally lead to the inmate' placement at ADX, have been sufficiently mitigated s to indicate the inmate can function less successful in a less-restricted unit without posing a threat to the security or orderly running of the institution." (See Declarations of Defendants attached to Federal Officer' Motion for Summary Judgment.) Mr. Ajaj was s transferred to the ADX as part of the Bureau of Prisons decision that several groups of inmates would be placed in at the ADX following the events of September 11, 2001. (See Exhibit B-23 memorandum from Michael Cooksey ). Mr. Ajaj cannot mitigate the

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fact of September 11, 2001 or his original conviction. There is nothing else Mr. Ajaj can do to mitigate the reason for his placement at the ADX. ( See Deposition of David Duncan taken on June 21, 2006, pg. 63, 1-25 & pg. 64, 1-12 attached as Exhibit B-10.) c. Since Mr. Ajaj' placement in administrative detention on September 11, s

2001 until the present, he has never received a hearing or the opportunity to meaningfully challenge his confinement at the ADX. (See Declaration of Ahmed Ajaj attached as Exhibit B-4). Mr. Ajaj is entitled to a hearing to challenge his placement at the ADX. d. Finally, what process Plaintiff is due is a factual decision which can only

be made by the Court in relation to the liberty interest Plaintiff is found to have been deprived of. See Wolff v. McDonnell, 418 U.S. 539, 560 (1973).

IV. A.

Claim Five: Equal Protection Claim. Burden of Proof and Elements: The elements for qualified immunity have already been set forth. See Section I.A,

supra.

B.

Elements of Plaintiff' Equal Protection Claim Challenged by Defendants: s 1. Plaintiff can demonstrate a triable issue of fact that there has been a violation of his equal protection rights.

First, Defendants argue Defendants Burrell and Duncan did not have personal participation in regards to Plaintiff' Equal Protection claim. The parties have stipulated s to the fact that Defendants Burrell and Duncan did not have personal participation in regards to this claim. Defendants do not challenge personal participation by the

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remaining Defendants Hood, Chester and Zuercher in regards to the Equal Protection claim. Second, Plaintiff can demonstrate he was treated differently than other similarly situated inmates, and can establish a violation of his equal protection rights. The Equal Protection Clause ` requires the government to treat similarly situated people alike.' Worthen v. Franklin, 2006 U.S. App. LEXIS 16672, 8-9 (10th Cir. 2006) citing Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (internal citation omitted). Further, classifications based on race or national origin are given the most exacting scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (U.S. 1988). Strict scrutiny is satisfied only where such classifications are "narrowly tailored to further compelling governmental interests." Grutter v. Bollinger, 539 U.S. 306, 326 (U.S. 2003). The Equal Protection Clause of the Fourteenth Amendment protects ` persons, and not groups,'and all ` governmental action based on race [or national origin] ... group classification[s] long recognized as in most circumstances irrelevant and therefore prohibited ­ should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.' Id. (internal citation omitted). A law or regulation that may appear facially neutral is not shielded from judicial scrutiny if there is so-called de facto discrimination in the administration of the law: Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (U.S. 1886).

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To show a discriminatory purpose or intent, it is necessary to look at the totality of relevant facts: "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Washington v. Davis, 426 U.S. 229, 241 (U.S. 1976) citing Yick Wo, supra. The Defendants' motion for summary judgment on Mr. Ajaj' equal protection s claim should be denied if there is a genuine issue of material fact whether the Bureau of Prison policy defined in Institution Supplement 5321.06 or customs are operating to the disadvantage of Mr. Ajaj as a result of his national origin and religion. The totality of the relevant facts must be reviewed to determine whether Defendants are treating Mr. Ajaj differently than similarly situated inmates as a result of his national origin and religion. Defendants' motion should be denied because there is a genuine issue of material fact concerning whether Mr. Ajaj has been denied the ability to step-down due to the fact that he is a Palestinian Muslim. Since Mr. Ajaj has been incarcerated at the ADX until August, 2006, no Palestinian Muslims or Arab Muslims have been allowed the opportunity to step-down within the institution. (See Declaration of Ahmed Ajaj attached as Exhibit B-4). Furthermore, other inmates convicted of crimes similar to Mr. Ajaj, who are not Palestinian/Arab Muslim, have been allowed to step-down and transfer out of the ADX. (See Deposition of Greg Hershberger, pgs. 89-94 line 13 attached as Exhibit B-17 and Declaration of Ahmed Ajaj attached as Exhibit B-4). Defendants argue that Mr. Ajaj was placed in a "general population unit" on October 3, 2002. However, Mr. Ajaj was on single recreation status for approximately a

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year after being placed in the F unit. He was not provided with the same privileges and restrictions as general population inmates. For example, he was not allowed to recreate with other inmates and he was denied access to the outdoor recreation yard. (See Declaration of Ahmed Ajaj attached as Exhibit B-4). Defendants argue that approximately 60 Muslim inmates have been stepped down from the general population units at ADX since September 2002. Defendants have not provided evidence that any Palestinian or Arab Muslims have been stepped down at the ADX from September 2002 until August 1, 2006. This is because there are none. Mr. Ajaj has been treated differently than similarly situated inmates. He is denied step down despite the fact that he had complied with the requirements of the step-down program at ADX. (See Progress Review Report dated January 25 attached as Exhibit B26, 2005 & (See Declaration of Ahmed Ajaj attached as Exhibit B-4). Other inmates who are similarly situated as Mr. Ajaj have been allowed to step-down. These inmates have not been Palestinian/Arabs Muslims. There is a dispute of material fact regarding whether Defendants have violated the Equal Protection Clause and this claim should not be dismissed. 2. The law was clearly established at the time of the violation. Defendants do not challenge that the law was clearly established at the time of the violation. As the above cited cases establish, Mr. Ajaj' right to be treated the same as s similarly situated individuals was clearly established. See e.g. Grutter v. Bollinger, 539 U.S. 306 (U.S. 2003).

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CONCLUSION Plaintiff has provided sufficient evidence to overcome the defense of qualified immunity on all claims and Plaintiff requests that the Federal Officers Motion for Summary Judgment be denied. Respectfully submitted this 28th day of August, 2006.

s/ Carmen N. Reilly______________ Carmen N. Reilly Montgomery Little Soran Murray & Kuhn, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO 80111 Telephone: (303) 773-8100 Facsimile: (303) 220-0412 E-mail: [email protected] Attorneys for Plaintiff Ahmed M. Ajaj

CERTIFICATE OF SERVICE I hereby certify that on August 28, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Amanda Rocque, Esq. 1225 17th Street, Suite 700 Denver, Colorado 80202 [email protected] Elizabeth A. Weishaupl, Esq. Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 [email protected] I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants via U.S. Mail, postage prepaid, indicated by the nonparticipant' name, addressed to: s

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Chris Synsvoll, Esq. Supervisor Legal Department U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 Ahmed M. Ajaj #40637-053 U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 s/ Deborah J. Harant_________________ Deborah J. Harant

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