Free Motion for Leave - District Court of Colorado - Colorado

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

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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' MOTION FOR LEAVE TO AMEND THE COMPLAINT TO S DISMISS THIRD CLAIM FOR RELIEF AGAINST DEFENDANT ZUERCHER AND MOTION TO JOIN THE BUREAU OF PRISONS FOR INJUNCTIVE RELIEF ONLY Plaintiff Ahmad M. Ajaj, by and through his counsel, Montgomery Little Soran Murray & Kuhn, P.C., submits his Motion for Leave to Amend the Complaint to Dismiss Third Claim for Relief Against Defendant Zuercher and Motion to Join the Bureau of Prisons for Injunctive Relief Only as follows: 1. D.C.COLO.LCivR 7.1 Certification. Counsel for Plaintiff spoke with

counsel for Defendants, Amanda Rocque. Ms. Rocque indicted that she would agree to enter into a stipulation dismissing Claim Three against Defendant Zuercher but that she opposes adding the Bureau of Prisons as a Defendant for injunctive relief. 2. On October 17, 2005, Plaintiff served opposing counsel with his Third
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Amended Complaint in this lawsuit raising a Federal Torts Claim Act claim and four

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constitutional claims against the United States of America and the Federal Officers. 3. On October 31, 2005, The United States of America and the Federal

Officers filed Motions to Dismiss the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 4. On December 5, 2005, Plaintiff filed his Responses to Defendants'

Motions to Dismiss and on December 20, 2005, Defendants filed Replies to their Motions to Dismiss. 5. On May 11, 2006 the Court issued an Order denying the United States'

Motion to Dismiss and Granting, in Part, the Federal Officers'Motion to Dismiss. The claims that remain for trial are: 1) a negligence claim asserted against the United States based on a failure to house the Plaintiff in an appropriate low altitude, smoke-free facility; 2) an Eighth Amendment claim against Defendants Hood, Burrell and Duncan, based upon the same facts; 3) an Eighth and Fifth Amendment due process claim asserted against Defendants Hood, Burrell, Duncan, Chester and Zuercher challenging the conditions of the Plaintiff' confinement and the decision to place him at ADX-Florence; s and 4) and equal protection claim against Defendants Hood, Burrell, Duncan, Chester and Zuercher based upon their refusal to reassign the Plaintiff to the "step-down" unit. 6. On May 22, 2006 the Court held a Law and Motions Hearing on the

parties'Joint Motion for Reconsideration of Order Denying Joint Motion to Vacate and Re-Set Trial Date and Request for Scheduling Hearing. At the Law and Motions hearing on May 22, 2006 the Court entered an Order vacating the trial set for July 11, 2006 and entered a scheduling order outlining the timeline for discovery in this case. The Court also set the final trial preparation conference for July 14, 2006 at 4:00 p.m., at which time the trial date will be scheduled. This hearing since has been moved to July 19, 2006, at 9:30 a.m. 7. Since the Law and Motions Hearing on May 22, 2006, the parties have
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engaged in discovery in this case, including taking Plaintiff' and the Defendants' s depositions. 8. Plaintiff requests leave to amend his Third Amended Complaint in order

to dismiss Claim Three against Defendant Zuercher. Through recent discovery, Plaintiff does not believe there are sufficient facts to support this claim against Mr. Zuercher. 9. Plaintiff also requests leave to amend his Third Amended Complaint to

add the Bureau of Prisons as a defendant for injunctive relief. 10. Federal Rule of Civil Procedure 21 provides: "parties may be dropped or

added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." 11. Federal Rule of Civil Procedure 15(a) provides: "... .a party may amend

the party' pleading only by leave of court or by written consent of the adverse party; and s leave shall be freely given when justice so requires." 12. In the absence of a reason to refuse leave to amend, "such as undue delay,

bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, etc., - leave should, as the rules require, be ` freely given.' Triplett v. LeFlore County, 712 F.2d 444 (10th Cir. 1983) quoting Foman " v. Davis, 371 U.S. 178, (1962) (opining Rule 15 declares leave to amend should be freely given when justice so requires; this mandate is to be heeded.) 13. Plaintiff requests leave to amend his Third Amended Complaint to add the

Bureau of Prisons as a Defendant. Through written interrogatories, requests for production of documents and depositions beginning the week of June 12, 2006, Plaintiff believes the Bureau of Prisons is a proper defendant in this case. Plaintiff also believes the Bureau of Prisons is a necessary defendant in order for Plaintiff to obtain the requested injunctive relief. Because the individual named Defendants have all moved
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from the ADX to different positions at the Bureau of Prisons, injunctive relief may not be possible or appropriate in regards to Defendants Hood, Burrell, Duncan and Zuercher. Plaintiff believes the Bureau of Prisons, through the current warden at ADX, the director and deputy director of the North Central Regional Office, is proper for Plaintiff to seek injunctive relief against. 14. The Bureau of Prisons will not be prejudiced by being added as a

Defendant at this juncture in the case. Counsel for the Bureau of Prisons has been heavily involved in this case to date. Counsel for the Bureau of Prisons provided the factual responses to Plaintiff' discovery requests and was present during Plaintiff' and s s all of the Defendants'depositions. (See Exhibit A, signature page to Defendants' Responses to Plaintiff' First Set of Interrogatories and Requests for Production of s Documents and Exhibit B, excerpts from depositions of Defendants Hood, Burrell, Duncan, Chester and Zuercher and Plaintiff Ajaj.) Additionally, the case has not been set for trial yet so that there should not be an issue regarding a trial calendar conflict. 15. Plaintiff' request to amend is in good faith and is being made subsequent s

to the factual development and discovery that has occurred in the case over the last 30 days. Plaintiff requests the court allow Plaintiff to amend his Third Amended Compliant and accept the Fourth Amended Complaint that is attached as Exhibit C. The attached Fourth Amended Complaint drops the Third Claim for Relief against Mr. Zuercher, adds the Bureau of Prisons as a defendant for injunctive relief and reflects the Court' order s dated May 11, 2006 dismissing the Second Claim of Relief in the Third Amended Complaint against Defendants Chester and Zuercher and dismissing the Fourth Claim in the Third Amended Complaint against all the federal officers. Plaintiff did not re-attach the administrative grievances to the Fourth Amended Complaint as they have been previously submitted and the Court determined on May 11, 2006 that Plaintiff had exhausted his administrative remedies as to his claims. Plaintiff will re-submit the
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administrative grievances at the Court' request. s

WHEREFORE, Plaintiff Ahmed M. Ajaj requests the Court grant his Motion for Leave to Amend the Complaint to Dismiss his Third Claim for Relief Against Defendant Zuercher and Motion to Join the Bureau of Prisons for Injunctive Relief Only. Plaintiff also requests the Court accept the Fourth Amended Complaint attached as Exhibit C.

Dated: July 10, 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] Attorney for Plaintiff Ahmed M. Ajaj

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CERTIFICATE OF SERVICE I hereby certify that on July 10, 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: Honorable Marcia S. Krieger United States District Court 901 19th Street Denver, Colorado 80294 Amanda Rocque, Esq. 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 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 Ahmed M. Ajaj #40637-053 U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 Chris Synsvoll, Esq. Debbie Locke, Esq. Supervisor Legal Department U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500

s/ Deborah J. Harant_________________ Deborah J. Harant
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