Free Answer to Amended Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-1959-MSK-PAC AHMED AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, J. C. ZUERCHER, Defendants.

ANSWER TO THIRD AMENDED COMPLAINT

Defendants United States of America, Robert A. Hood, James Burrell, David Duncan, C. Chester, and J. C. Zuercher, by and through undersigned counsel, hereby file this Answer to Plaintiff's Third Amended Complaint as set forth below. Defendants answer Plaintiff's Third Amended Complaint by responding to the numbered allegations as follows: PARTIES 1. Defendants admit that the Plaintiff Ahmed Ajaj ("Plaintiff") is an inmate

presently in the custody of the Federal Bureau of Prisons, is presently housed at the United States Penitentiary, Administrative Maximum ("ADX"), Florence, Colorado, and has a prisoner identification number of #40637-053. Defendants lack sufficient information to admit or deny

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whether Plaintiff is Palestinian. Defendants deny all remaining allegations in Paragraph 1. 2. 3. Defendants admit the allegations in Paragraph 2. Defendants admit that Robert Hood was the Warden at the ADX. Defendants

admit that Paragraph 3 states the correct address for the ADX. Defendants deny any and all remaining allegations in Paragraph 3. 4. 5. Defendants admit the allegations in Paragraph 4. Defendants admit that David Duncan was an Associate Warden at the ADX.

Defendants admit that Paragraph 5 states the correct address for the FCI Manchester. Defendants deny any and all remaining allegations in Paragraph 5. 6. Defendants admit that C. Chester was an Associate Warden at the ADX.

Defendants admit that Paragraph 6 states the correct address for the ADX. Defendants deny any and all remaining allegations in Paragraph 6. 7. Defendants admit that J.C. Zuercher was an Associate Warden at the ADX.

Defendants admit that Paragraph 7 states the correct address for the ADX. Defendants deny any and all remaining allegations in Paragraph 7. 8. Paragraph 8 is a conclusory statement to which no response is required or

necessary. To the extent that a response is required, Defendants deny any and all allegations contained in Paragraph 8. 9. Paragraph 9 is a conclusory statement to which no response is required or

necessary. To the extent that a response is required, Defendants deny any and all allegations contained in Paragraph 9. JURISDICTION AND VENUE 10. To the extent that Paragraph 10 calls for a legal conclusion, Defendants file no 2

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response. To the extent that Paragraph 10 contains factual allegations, Defendants deny said allegations. 11. To the extent that Paragraph 11 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 11 contains factual allegations, Defendants deny said allegations. 12. To the extent that Paragraph 12 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 12 contains factual allegations, Defendants deny said allegations. 13. To the extent that Paragraph 13 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 13 contains factual allegations, Defendants deny said allegations. 14. To the extent that Paragraph 14 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 14 contains factual allegations, Defendants deny said allegations. GENERAL ALLEGATIONS 15. Defendants admit that Plaintiff is currently incarcerated at the ADX. Defendants

lack sufficient information to admit or deny the remaining allegations in Paragraph 15, and therefore, deny said allegations. 16. 17. 18. 19. Defendants admit the allegations in Paragraph 16. Defendants admit the allegations in Paragraph 17. Defendants admit the allegations in Paragraph 18. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 19, and therefore, deny said allegations. 3

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20.

Defendants lack sufficient information to admit or deny the allegations in

Paragraph 20, and therefore, deny said allegations. 21. Defendants admit that: Plaintiff was housed at the United States Penitentiary,

Beaumont, Texas; Plaintiff was housed at the Metropolitan Correctional Center in 1999; Plaintiff was transferred to the Federal Correctional Institution, Edgefield, South Carolina on February 1, 2001. Defendants deny any and all remaining allegations in Paragraph 21. 22. Defendants admit that Plaintiff arrived at the ADX on September 4, 2002.

Defendants lack sufficient information to admit or deny the allegations concerning the altitude at which the ADX is located. Defendants deny any and all remaining allegations in Paragraph 22. 23. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 23, and therefore, deny said allegations. 24. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 24 and, therefore, deny said allegations. 25. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 25 and, therefore, deny said allegations. 26. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 26 and, therefore, deny said allegations. 27. The document speaks for itself. To the extent Plaintiff's characterization of the

document does not reflect the content of the document, Defendants deny the allegations in Paragraph 27. 28. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 28, and therefore, deny said allegations. 29. Defendants deny the allegations in Paragraph 29. 4

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30. 31.

Defendants deny the allegations in Paragraph 30. The document speaks for itself. To the extent Plaintiff's characterization of the

document does not reflect the content of the document, Defendants deny the allegations in Paragraph 31. 32. 33. Defendants deny the allegations in Paragraph 32. Defendants are without information sufficient to admit or deny the allegations

contained in Paragraph 33 and therefore deny these allegations. 34. 35. Defendants deny the allegations in Paragraph 34. Defendants admit that Plaintiff arrived at the ADX on September 4, 2002; but

Defendants deny the remaining allegations in Paragraph 35. 36. With respect to the allegations in the first sentence of Paragraph 36, Defendants

admit that Plaintiff is not afforded an opportunity for vocational education; Defendants deny all remaining allegations in the first sentence. With respect to allegations in the second sentence of Paragraph 36, Defendants admit that visual searches are conducted on a random basis every time an inmate is removed from his cell; Defendants deny all remaining allegations in the second sentence. With respect to the allegations in the third sentence of Paragraph 36, Defendants deny said allegations. With respect to the allegations in the fourth sentence of Paragraph 36, Defendants admit that Plaintiff is placed in restraints for movement outside his cell; Defendants deny all remaining allegations in the fourth sentence of Paragraph 36. FIRST CLAIM FOR RELIEF 37. Defendants adopt and incorporate herein by reference each and every response to

Paragraphs 1 through 36. 38. The Federal Tort Claims Act, 28 U.S. C. § 1346 speaks for itself. To the extent 5

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that Paragraph 38 calls for a legal conclusion, Defendants file no response. To the extent that Paragraph 38 contains factual allegations, Defendants deny said allegations. 39. Defendants admit the allegations in Paragraph 39, including subparagraphs (a) and

(b). To the extent that any attachment to the Third Amended Complaint contains factual allegations, these allegations are denied. 40. To the extent that Paragraph 40 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 40 contains factual allegations, Defendants deny said allegations. 41. 18 U.S.C. § 4042 speaks for itself. To the extent that Paragraph 41 calls for a

legal conclusion, Defendants file no response. To the extent that Paragraph 41 contains factual allegations, Defendants deny said allegations. 42. Defendants admit that Plaintiff's left lung was removed in 1997, but are

without sufficient knowledge or information to form an opinion as to the remainder of the allegations contained in Paragraph 42, and therefore, deny said allegations. 43. Defendants admit that Plaintiff arrived at the ADX on September 4, 2002.

Defendants lack sufficient information to admit or deny the allegations concerning the altitude at which the ADX is located. Defendants deny any and all remaining allegations in Paragraph 43. 44. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 44, and therefore, deny said allegations. 45. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 45, and therefore, deny said allegations. 46. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 46, and therefore, deny said allegations. 6

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47. 48. 49. 50. through (f).

Defendants deny the allegations in Paragraph 47. Defendants deny the allegations in Paragraph 48. Defendants deny the allegations in Paragraph 49. Defendants deny the allegations in Paragraph 50, including subparagraphs (a)

SECOND CLAIM FOR RELIEF 51. Defendants adopt and incorporate herein by reference each and every response to

Paragraphs 1 through 50. 52. 53. Defendants deny the allegations in Paragraph 52. To the extent that Paragraph 53 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 53 contains factual allegations, Defendants deny said allegations. 54. The Eighth Amendment to the United States Constitution speaks for itself. To the

extent that Paragraph 54 calls for a legal conclusion, Defendants file no response. To the extent that Paragraph 54 contains factual allegations, Defendants deny said allegations. 55. To the extent that Paragraph 55 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 55 contains factual allegations, Defendants deny said allegations. 56. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 56, and therefore, deny said allegations. 57. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 57, and therefore, deny said allegations. 58. The document speaks for itself. To the extent Plaintiff's characterization of the 7

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document does not reflect the content of the document, Defendants deny the allegations in Paragraph 58. 59. Defendants lack sufficient information to admit or deny the allegations in

Paragraph 59, and therefore, deny said allegations. 60. 61. Defendants deny the allegations in Paragraph 60. The document speaks for itself. To the extent Plaintiff's characterization of the

document does not reflect the content of the document, Defendants deny the allegations in Paragraph 61. 62. 63. 64. 65. 66. 67. Defendants deny the allegations in Paragraph 62. Defendants deny the allegations in Paragraph 63. Defendants deny the allegations in Paragraph 64. Defendants deny the allegations in Paragraph 65. Defendants deny the allegations in Paragraph 66. Defendants deny the allegations in Paragraph 67. THIRD CLAIM FOR RELIEF 68. Defendants adopt and incorporate herein by reference each and every response to

Paragraphs 1 through 67. 69. 70. Defendants deny the allegations in Paragraph 69. The Fifth Amendment to the United States Constitution speaks for itself. To the

extent that Paragraph 70 calls for a legal conclusion, Defendants file no response. To the extent that Paragraph 70 contains factual allegations, Defendants deny said allegations. 71. To the extent that Paragraph 71 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 71 contains factual allegations, Defendants deny said 8

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allegations. 72. 73. 74. 75. 76. Defendants deny the allegations in Paragraph 72. Defendants deny the allegations in Paragraph 73. Defendants deny the allegations in Paragraph 74. Defendants deny the allegations in Paragraph 75. To the extent that Paragraph 76 calls for a legal conclusion, Defendants file no

response. To the extent that Paragraph 76 contains factual allegations, Defendants deny said allegations. FOURTH CLAIM FOR RELIEF The Fourth Claim for Relief was dismissed by the Court by Order dated May 11, 2006, and therefore, no response should be required to the Claim and the factual allegations supporting it. To the extent that a response is required, Defendants deny the Fourth Claim for Relief and all factual or legal allegations contained in supporting Paragraphs 77 through 91. FIFTH CLAIM FOR RELIEF 92. Defendants adopt and incorporate herein by reference each and every response to

Paragraphs 1 through 91. 93. 94. Defendants deny the allegations in Paragraph 93. The Fourteenth Amendment to the United States Constitution speaks for itself.

To the extent that Paragraph 94 calls for a legal conclusion, Defendants file no response. To the extent that Paragraph 94 contains factual allegations, Defendants deny said allegations. 95. 96. 97. Defendants deny the allegations in Paragraph 95. Defendants deny the allegations in Paragraph 96. Defendants deny the allegations in Paragraph 97. 9

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98.

Defendants deny the allegations in Paragraph 98.

Any allegations in the paragraphs after Paragraph 98 of the Third Amended Complaint, and beginning with the word "WHEREFORE," constitute Plaintiff's prayers for relief, as to which no answer is required. To the extent these paragraphs may be deemed to contain allegations of material facts, they are denied. Defendants hereby deny each and every allegation of material fact not heretofore admitted, denied or otherwise qualified. AFFIRMATIVE DEFENSES Defendants assert all relevant affirmative defenses, including, but not limited to: 1. The Third Amended Complaint fails to state a claim upon which relief can be

granted to Plaintiff against Defendants. 2. The United States of America and its agents, servants and employees deny

committing any negligent or wrongful act or omission while acting within the scope of employment, and deny proximately causing and/or contributing to the damages alleged in the Third Amended Complaint. 3. immunity. 4. This Court lacks subject matter jurisdiction over Plaintiff's FTCA claim against Plaintiff's claims are barred in whole or in part by the doctrine of qualified

the United States. 5. Plaintiff's claims are barred in whole or in part by Plaintiff's failure to properly

exhaust his administrative remedies before filing this case in federal court. 6. To the extent Plaintiff premises any of his Bivens claims upon vicarious

liability/respondeat superior, Plaintiff fails to state a claim. 7. Any and all actions Defendants may have taken concerning the matters underlying 10

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this action were done in good faith, within the scope of their employment, and in accordance with federal law and regulations. 8. Defendants' actions were justified under federal law or otherwise proper under

Federal Bureau of Prisons policies and regulations. 9. doctrine. 10. injury. 11. The individual Federal Officers are entitled to the statutory protections of the Plaintiff's claims for compensatory damages are barred in the absence of physical Plaintiff's claims are barred in whole or in part by the discretionary function

Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e. 12. Plaintiff voluntarily assumed a known unreasonable risk and is barred from

recovery herein. 13 Plaintiff's damages, if any, were a result of Plaintiff's or a third party's negligence

to such a degree as to bar (or limit) his recovery. See C.R.S. § 13-21-111. 14 Plaintiff's damages are limited pursuant to the provisions of C.R.S. §§ 13-21-

102.5, 13-21-111.5, 13-21-111.6, 13-21-111.7, and 13-21-111. 15 16. Plaintiff is barred from recovery because he voluntarily assumed a known risk. If the Plaintiff were to be awarded any future damages, to which Defendant

United States of America denies he is entitled, such damages must be reduced to present value. See 28 U.S.C. § 2678 17. Plaintiff's claims may be barred in whole or part by his failure to mitigate

his claimed damages, if any. 18. Plaintiff's damages, if any, are the proximate result of a pre-existing condition. 11

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19.

Plaintiff's damages, if any, were proximately caused in whole or in part by the

actions of third parties over which Defendants have no custody or control. 20. Plaintiff. 21. If Plaintiff is entitled to recover damages in this action, Defendant United States Plaintiff's damages, if any, are barred in whole or in part by the actions of

of America is entitled to a credit or set-off for any past or future benefits paid to or on behalf of or received by Plaintiff to the extent allowed under federal and state common and statutory law, including all monies or benefits that Plaintiff received from the United States. 22. To the extent the common or statutory law of Colorado, or any jurisdiction

wherein the alleged negligent events occurred, otherwise limits damages or limits Defendants' liability or Plaintiff's cause of action, that law applies to this action against the United States to the extent it is not inconsistent with the Federal Tort Claims Act. 23. 24. Plaintiff's claims are governed in whole or in part by the Federal Tort Claims Act. Plaintiff's claim for attorney's fees for the Federal Tort Claims Act claim, if any, is

governed by the provisions of the Federal Tort Claims Act, capping such fees to 25 % of any awarded amount. 25. 26. limitations. 27. Plaintiff's FTCA claim is barred in whole or in part by the absence of an The Court does not have jurisdiction over some or part of Plaintiff's claims. Plaintiff's claims may be barred in whole or in part by applicable statute of

actionable duty under state law. 28. discovery. 12 Defendant reserves the right to add affirmative defenses as warranted by

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Respectfully submitted this 25th day of May, 2006. WILLIAM J. LEONE United States Attorney

s/ Amanda Rocque Amanda Rocque Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0109 Facsimile: (303) 454-0404 Email: [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of May, 2006, I electronically filed the foregoing ANSWER TO THIRD AMENDED COMPLAINT 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] I hereby certify that on this 25th day of May, 2006, I served the foregoing ANSWER TO THIRD AMENDED COMPLAINT via electronic mail on the following non-CM/ECF participants: Agency Counsel, as designated agent for and on behalf of individual Defendants: Christopher Synsvoll, Esq. Federal Correctional Complex P.O. Box 8500 5880 Highway 67 South Florence, CO 81226 Email: [email protected]

s/Amanda Rocque Amanda Rocque 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected]

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