Free Amended Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number 03-cv-01959-MSK-PAC

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

THIRD AMENDED COMPLAINT

COME NOW, Plaintiff Ahmad M. Ajaj, by and through his counsel, Carmen N. Reilly, and, for his THIRD AMENDED COMPLAINT, states: PARTIES 1. Plaintiff Ahmed Ajaj ("Ajaj") is a Palestinian adult, currently incarcerated as a federal prisoner at the United States Penitentiary Administrative Maximum, 5880 State Highway 67 South, P.O. Box 8500, Florence, CO 81226-8500 ("USP-ADX"). Ajaj' prisoner identification number is #40637-053. s 2. Defendant United States of America ("USA") is a sovereign nation with its capitol in Washington, D.C. 3. Defendant Robert Hood was the warden at USP-ADX, 5880 State Highway 67 South, P.O. Box 8500, Florence, CO 81226-8500 and is currently **

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4.

Defendant James Burrell was associate warden at USP-ADX, and is now an employee at Community Corrections and Detention Division, Detention Branch, 400 1st Street, Room 2004, Washington D.C. 20534.

5.

Defendant David Duncan was associate warden at USP-ADX, and is now an employee at FCI Manchester, 805 Fox Hollow Road, Manchester KY 40962.

6.

Defendant C. Chester is an associate warden at USP-ADX, 5880 State Highway 67 South, P.O. Box 8500, Florence, CO 81226-8500.

7.

Defendant J.C. Zuercher is an associate warden at USP-ADX, 5880 State Highway 67 South, P.O. Box 8500, Florence, CO 81226-8500.

8.

All Defendants are sued in their individual capacities and their official capacities as employees or agents of the USA.

JURISDICTION AND VENUE 9. This Court possesses subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 2679. Jurisdiction is also appropriate per Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); Helling v. McKinney, 509 U.S. 25 (1993) and Sandin v. Connor, 515 U.S. 472 (1995). 10. This Court also has personal jurisdiction over all Defendants in that all Defendants either reside in this judicial district or have sufficient minimum contacts with the judicial district to warrant personal jurisdiction. 11. Ajaj has exhausted all administrative remedies required by 28 U.S.C. §2675 and has attached the relevant administrative remedies.

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12.

Ajaj has exhausted the three-tiered administrative procedure for inmate grievances pursuant to 28 C.F.R. §542.10 et. seq. for all claims.

13.

Venue in this district is proper pursuant to 28 U.S.C. §1391. GENERAL ALLEGATIONS

14.

Defendant USA, through the Bureau of Prisons and its employees, has the duty to provide for the care and well-being of Ajaj during his incarceration.

15.

This duty of care also lies with the individual persons having supervision and custody of Ajaj.

16.

Ajaj is a Palestinian Muslim.

FIRST CLAIM FOR RELIEF (Federal Tort Claims Act claims against USA)

17.

While at MCC-New York, Ajaj was in the care and custody of Defendant USA through its employees, J.R. James (warden) and Dr. Mark Glover. The USA had the duty to provide adequate and proper medical care to Ajaj.

18.

In the spring of 1993, Ajaj requested medical assistance for a number of reported conditions and was refused the requested assistance.

19.

Upon information and belief, Mr. James ignored a court order requiring him to provide Ajaj proper medical treatment.

20.

On or around September 24, 1993, an x-ray examination of Ajaj' chest s revealed significant abnormalities which necessitated additional testing and examination.

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21.

Although Defendant USA through its employee, Dr. Glover, had the duty to provide proper medical care, and knew or should have known of the need for additional testing and examination of the condition of Ajaj' chest, this s Defendant failed to provide adequate care.

22.

On November 19, 1993, Dr. Giovaniello examined Ajaj, made numerous findings and suggested a CAT scan of the chest.

23.

Upon information and belief, a timely CAT scan as suggested by Dr. Giovanniello in November of 1993, would have detected the cancer in Ajaj' s lung and lead to appropriate treatment which would have saved Ajaj' left s lung from subsequent removal.

24.

At a minimum, the suggested CAT scan would have shown the need for further testing.

25.

Defendant USA through its employee Dr. Glover had the duty to provide adequate medical care to Ajaj in late 1993 and failed to do so by continuing to ignore the suggestions and recommendations for further testing and examination of the condition in Ajaj' chest. s

26. 27.

On or about March 4, 1994, Ajaj moved to USP-Lewisberg. On or about May 24, 1994, Ajaj was transferred to USP-Florence (Colorado) and was under the custody and control of Patrick Whalen.

28.

Defendant USA through its employees Mr. Whalen, Robert Williams and Terry Finnegan was responsible for providing proper medical care to Ajaj.

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29.

Upon his arrival at USP-Florence, Ajaj immediately complained to the health service staff regarding his physical symptoms and requested treatment for these symptoms.

30.

On June 17, Mark A. Smith, P.A., examined Ajaj and requested a CAT scan of Ajaj' lungs. s

31.

Despite Mr. William' knowledge of P.A. Smith' suggestion of a CAT scan, s s and his knowledge, constructive or otherwise, of the previous recommendations for further examination of Ajaj' chest, Mr. Whalen, s Williams, and Finnegan failed and refused to provide further adequate testing of Ajaj' chest condition. s

32.

On or about December 16, 1994, Ajaj was transferred to FCI-Otisville and became under the custody and control of Frank Sizer, and at that time Defendant USA through Mr. Sizer, Kallidak Sundaram, and Donald Moore became responsible for providing adequate medical care to Ajaj.

33.

Ajaj informed Mr. Sundaram and Moore about his symptoms, physical ailments, and the previous testing and recommendations for his chest condition.

34.

Ajaj was treated for asthma, although there was no reasonable medical basis to do so.

35.

Despite their actual or constructive knowledge of the need for further testing on Ajaj' chest condition, Defendant USA, through its employees Mr. Sizer, s Sundaram and Moore violated its duty to Ajaj by refusing to and failing to provide adequate testing or inquiry.

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36.

On January 9, 1995, Mr. Sundaram had additional x-rays taken of Ajaj' s chest. Although these x-rays indicated the need for further testing, Mr. Sundaram failed to provide this further testing and was without justification for the failure.

37. 38.

In February of 1995, Ajaj was again transferred to USP-Florence. Ajaj' condition deteriorated seriously during early March of 1995, and the s USP-Florence officials failed to adequately respond to, diagnose and treat Ajaj' health. s

39.

During this period, three separate physician' assistants recommended s hospitalization for Ajaj. Mr. Williams refused to follow these recommendations.

40.

On or around March 15, 1995, Ajaj had an x-ray that noted a problem in Ajaj' chest. Mr. Williams failed to provide adequate medical care in s response to this finding.

41. 42.

In July of 1995, Ajaj was transferred to MCC-New York. On July 26, 1995, evidence of a medical problem was found in Ajaj' left s lung.

43.

Defendant USA, through Mr. Glover, was responsible for providing proper medical care to Ajaj at this time.

44.

Defendant USA, through its employees, failed to provide adequate medical treatment in light of the findings and other knowledge of Ajaj' medical s condition.

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45.

All doctors, wardens, supervisors, clinical directors and health service personnel at MCC-New York, USP-Lewisburg, FCI-Otisville, and USP Florence knew, or should have known, that Ajaj was in serious need of further testing of his chest condition, but without any justification Defendant USA, through these employees, violated its duty to Ajaj by failing to allow Ajaj access to proper medical care.

46.

On August 11, 1995, Ajaj was transferred to USP-Lewisburg where he informed the health services staff of his condition.

47.

The employees of the prison possessed the duty to provide proper medical care to Ajaj at this time.

48.

On September 21, 1995, Dr. Arthur S. Keiper, III, examined Ajaj and noted the need for a CAT scan.

49.

On October 5, 1995, Dr. Beundia and Dr. Velasco also examined Ajaj and suggested a CAT scan in order to rule out possible medical problems.

50.

Despite these two additional recommendations for a CAT scan, the officials responsible for Ajaj' care again refused to provide this suggested and needed s test.

51. 52.

On December 13, 1995, Ajaj was transferred to USP-Florence. At this time, physician' assistant Garcia reviewed Ajaj' medical file and s s suggested a CAT scan as proper further testing.

53.

Officials responsible for Ajaj' care refused, without justification, to provide s Ajaj with the test recommended by the USP-Florence staff.

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54.

On April 25, 1997, Dr. Lance Pysher examined Ajaj and noted medical problems in Ajaj' chest. A May 12, 1997, chest x-ray confirmed this s diagnosis.

55.

On May 13, 1997, Ajaj was transferred to the Federal Medical Center in Springfield, Missouri.

56.

On May 15, 1997, Dr. Bruce Hedgepeth examined Ajaj and recommended a CAT scan.

57.

On this same day, Dr. Thomas Jones recommended a CAT scan along with pulmonary consultation as a result of Ajaj' chronically abnormal chest x-rays s since 1993.

58.

Also on May 15, 1997, Dr. James Wolski examined Ajaj and determined that a CAT scan was necessary.

59.

On May 28, 1997, Dr. Donald Wantuck performed an investigative operation with biopsy and brushings of mass in Ajaj' left main bronchus. s

60.

On June 13, 1997, Dr. Stephen Morrison examined Ajaj and determined that Ajaj' biopsy proved a carcinoid tumor of the left lung. s

61.

The cancer in Ajaj' lungs required removal of the entire left lung, which s occurred on June 19, 1997.

62.

Upon information and belief, had the Defendant USA employees followed the 1993 and multiple, subsequent recommendations for a CAT scan, the cancer would have been detected much earlier than 1997 and total removal of Ajaj' s lung would not have been necessary.

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63.

After removal of his lung Ajaj in Springfield, Ajaj was transferred back to USP-Florence with instructions from doctors that he be housed in a smokefree environment.

64.

At USP-Florence, USP-Beaumont and until recently at his current incarceration in USP-ADX, Ajaj was placed in an environment that is not smoke-free.

65.

The Federal Tort Claims Act, 28 U.S.C. §1346, et seq., allows recovery against the Federal Government for the negligent acts of its employees and agents.

66.

Defendant USA has, and continues to have, a duty to provide adequate medical care to Ajaj and to house him in a facility appropriate to his medical needs and to house him in a smoke-free environment at an institution that has a lower elevation.

67.

Furthermore, Defendant USA and its employees through the BOP have a statutory duty as dictated by 18 U.S.C. §4042, to provide prisoners, including Ajaj, with suitable quarters and provide for his safekeeping, care, and subsistence. 68. Defendant USA, through the acts and omissions of its employees and agents, has violated and continues to violate, these duties to Ajaj. 69. Defendant USA' employees and agents actions and omissions were and are s negligent in that they did, and still do, breach the standard of care owed to Ajaj.

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70.

The negligent acts and omissions of Defendant USA' employees and agents s are and have been the direct and proximate cause of serious, permanent and continuing injuries and damages to Ajaj.

71. SECOND CLAIM FOR RELIEF (Federal Tort Claims Act claims against USA)

72.

Ajaj is currently being housed in the special housing D unit at USP-ADX. Upon information and belief, the D unit is one of the most restrictive units at USP-ADX.

73.

Upon information and belief, inmates are reviewed periodically to determine compliance with requirements outlined in Institution Supplement 5321.06e in order to "step-down" to intermediate units.

74.

According to the USP-ADX mission statement, inmates are to be given an opportunity to demonstrate improved behavior and the ability and motivation to reintegrate into an open population.

75.

Upon information and belief, Ajaj has maintained clear conduct since his arrival at USP-ADX and has complied with the requirements to step-down to the K unit, completing close to 50 classes, well above the amount required to be eligible to step-down.

76.

Defendants United States of America, Defendant Hood, Burrell, Duncan, Zuercher and Chester have continuously denied Ajaj transfer to the step-down unit and have placed him on single-recreational status in the "A" range.

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77.

Upon information and belief, the "A" range includes recreation with the most violent inmates in the institution. Upon information and belief, four of the five inmates Ajaj is allowed to recreate with have been convicted of killing other inmates; the fifth allegedly stabbed another inmate almost to death.

78.

Upon information and belief, several of the most violent inmates in Ajaj' unit s have already "stepped-down" to the intermediate unit.

79.

Defendant Hood stated in a BP-229 response dated November 2, 2004 that Ajaj has clear conduct, good program participation, and a positive rapport with staff but that he was being denied step-down due to security concerns.

80.

However, upon information and belief, at a previous court hearing a BOP prison official pledged to the court that Ajaj is able to improve his status at USP-ADX by participating in the unit step-down program, which Ajaj has done.

81.

Upon information and belief, Defendant Hood indicated at one point to Ajaj that he "filed the most out of all the inmates" and that "if he wanted to be filing, this is what you get." Ajaj believed this statement was in reference to his filing of administrative grievances and court cases.

82.

Upon information and belief, Defendant Hood placed Ajaj in the "A" range on single recreation status shortly after filing his lawsuit.

83.

For over two years Ajaj has remained in special confinement, outside the general prison population in isolation and is to remain there indefinitely.

84.

The conditions of his confinement are not typical of general population or ordinary prison life and include; extreme isolation, lock-down for 23 of 24

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hours a day, limitations on personal property rights, mail and access to telephones and extremely limited outdoor recreation. 85. As a direct and proximate cause of Defendants'actions Ajaj has been permanently and irreparably physically and emotionally harmed. 86. At all relevant times the above named individuals where acting on behalf of, as employees within the scope of their employment for or as agents for Defendant USA. SECOND CLAIM FOR RELIEF (Bivens claim versus Federal Officers for failure to protect against an unreasonable risk of future harm) 87. The Eight Amendment to the United States Constitution prohibits cruel and unusual punishment. 88. This Amendment guarantees prisoners, including Ajaj, the right to a smokefree environment and the right to be free from unreasonable risks of serious damage to future health. 89. Furthermore, Defendant USA and its employees have a statutory duty to provide prisoners, including Ajaj, with appropriate care, safekeeping and subsistence through the BOP. 90. The above named federal officer Defendants violated these basic duties to adequately safeguard and provide adequate care to Ajaj. 91. Ajaj requested at these facilities that he be housed in a smoke-free environment due to the possible health risks associated with his being around second-hand smoke, but these facilities refused his requests and have ignored doctor' instructions in this regard. s

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92.

Upon information and belief, on or around September 16, 1997, health services at USP-Florence indicated Ajaj would benefit from being housed in a lower altitude.

93.

Upon information and belief, on or around September 19, 1997, Terry Finnegan submitted a referral for Ajaj' transfer to another institution with a s lower altitude.

94.

Sometime thereafter, Ajaj was transferred back to USP-Beaumont. In 1999, Ajaj was moved to MCC-New York. On or about October 22, 1999, Ajaj was transferred back to USP-Beaumont. On or about, February 1, 2001, Ajaj was moved to FCI Edgefield, a facility which was smoke-free and located at a low altitude.

95.

On or about September 4, 2002, Ajaj was transferred to USP-ADX at an altitude of over 5,000 feet and until recently was a smoking facility.

96.

At USP-ADX Ajaj became under the custody and control of Defendant Hood, Burrell, Duncan, Chester and Zuercher and these Defendants became responsible for providing proper and continuing medical care and treatment to Ajaj.

97.

Upon information and belief, upon arrival at USP-ADX, Ajaj immediately advised Defendants Hood, Burrell, Duncan and the health services staff of his condition and medical needs. He specifically instructed them that doctors recommended he be housed in a smoke-free environment and at a low altitude.

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98.

A report by Dr. Lebya dated January 21, 2003, recommended that Ajaj be housed in a smoke-free environment.

99.

Ajaj continues to be housed in a facility with an elevation of over 5,000 feet and until recently was exposed to a smoking environment.

100.

Upon information and belief, these factors exacerbate his medical condition of only having one lung.

101.

Upon information and belief, Ajaj also has chronic allergic rhinitis which, combined with only having one lung and extremely limited access to fresh air limits his breathing capacity.

102.

As indicated by Dr. Lawrence Lebya in a report dated June 21, 2004, it is imperative that Ajaj have maximum breathing capacity.

103.

Upon information and belief, a lower elevation would increase Ajaj' ability s to breath and even engage in limited exercise without severe shortness of breath.

104.

Defendants USA, Hood, Duncan, Burrell, have deliberately failed to adequately respond to Ajaj' continuing medical needs violating their duties to s Ajaj.

105.

As a direct and proximate cause of Defendant' actions: s a. Ajaj has suffered and continues to suffer emotional anguish from the removal of his lung and knowledge that cancer was allowed to spread in his body; b. Ajaj has chronic fatigue, is disabled and cannot participate in activities he previously enjoyed;

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c. Ajaj has lost enjoyment of his life; d. Ajaj is more susceptible to other diseases and other ailments; e. Ajaj is unable to walk for periods in excess of fifteen minutes without significant shortness of breath, his present institutions elevation of over 5,000 feet exacerbates this condition; and 106. Ajaj has been permanently and irreparably harmed both physically and emotionally. 107. These Defendants'acts and omissions are sufficiently harmful to evidence a deliberate indifference to Ajaj' serious medical needs and condition. s 108. These Defendants'knowingly disregarded a serious condition, medical need and/or risk of harm. 109. As a direct and proximate cause of these Defendants'failure to fulfill their Constitutional and statutory duties to provide adequate medical care to prisoners, Ajaj has been seriously and permanently injured and damaged.

THIRD CLAIM FOR RELIEF (Deprivation of Liberty claim versus Federal Officers for being held in USPADX Special Housing F Unit) 110. 111. Ajaj fully incorporates by this reference paragraph 1 through 110 above. The Fifth Amendment Due Process Clause of the United States Constitution prohibits deprivation of a liberty interest without procedural due process. 112. An inmate, such as Ajaj, may be deprived of liberty if he is subjected to a restraint that imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

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113.

The above named Defendants have subjected Ajaj to sufficient restraints that impose atypical and significant hardships on Ajaj in relation to ordinary incidents of prison life and have deprived Ajaj of a protected liberty interest.

114.

Ajaj has been deprived of a liberty interest by transfer and indefinite confinement at ADX without any procedural due process, which is required before his liberty interest is taken away.

115.

As a direct and proximate cause of these Defendants'failure to fulfill their Constitutional duties by depriving Ajaj of a liberty interest, Ajaj has been seriously and permanently injured and damaged. FOURTH CLAIM FOR RELIEF (Equal Protection claim versus Federal Officers)

116. 117.

Ajaj fully incorporates by this reference paragraph 1 through 116 above. The Equal Protection Clause of the Fourteenth Amendment, applicable to the Federal government through the Fifth Amendment to the United States Constitution, guarantees an inmate, such as Ajaj, a right to be treated the same as other individuals similarly situated.

118.

The above-named Defendants have singled out Ajaj as a result of his status as Palestinian Muslim for different and harsher treatment than other inmates similarly situated to him.

119.

The Defendants actions are not narrowly tailored to further a compelling governmental interest for treating Ajaj differently than other inmates similarly situated or denying him the same rights and privileges given to other inmates.

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120.

As a direct and proximate cause of these Defendants'failure to fulfill their Constitutional duties by depriving Ajaj of equal protection, Ajaj has been seriously and permanently injured and damaged.

FIFTH CLAIM FOR RELIEF (Retaliation claims versus Federal Officers for exercising constitutional right by filing administrative grievances and lawsuit) 121. 122. Ajaj fully incorporates by this reference paragraph 1 through 121 above. The First Amendment to the United States Constitution guarantees an inmate' right to petition the government and access to the courts. s 123. The First Amendment to the United States Constitution includes the right to be free from retaliation by prison officials when an inmate exercises his right to access to the courts. 124. Defendants'acts and statements were in retaliation against Ajaj for exercising his First Amendment right by filing administrative grievances and the present lawsuit. 125. As a direct and proximate result of Defendants retaliation against Ajaj he has suffered permanent and continuing injuries and damages. WHEREFORE, Plaintiff Ajaj respectfully requests this Court to enter judgment in his favor against the Defendants, as follows: A. B. C. For compensatory damages this Court considers just, reasonable and fair; For pre- and post-judgment interest as permitted by law; For appropriate injunctive relief requiring the prison officials to grant Ajaj' placement in the intermediate K unit of the prison and/or s transferring Ajaj to a facility with a suitable environment for his medical

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conditions including an environment with a lower altitude and in full compliance with all physician' orders and recommendations; and s D. For such relief as this Court deems just and proper.

Dated: October 17, 2005

Respectfully submitted,

_/s/ Carmen N. Reilly____________ Carmen N. Reilly Montgomery Little & McGrew, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO Telephone: (303) 773-8100 Facsimile: (303) 220-0412 [email protected] Attorney for Plaintiff Ajaj

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CERTIFICATE OF MAILING I hereby certify that on the 17th day of October, 2005, the foregoing was properly mailed, postage prepaid, addressed to:

Ahmed M. Ajaj #40637-053 U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 Amanda Rocque, Esq. Michael Hegarty, Esq. 1225 17th Street, Suite 700 Denver, Colorado 80202 Robert Hood U.S. Penitentiary Max 5880 State Highway 67 South P.O. Box 8500, Florence, Colorado 81226-8500. C. Chester U.S. Penitentiary Max 5880 State Highway 67 South P.O. Box 8500, Florence, Colorado 81226-8500. J.C. Zuercher U.S. Penitentiary Max 5880 State Highway 67 South P.O. Box 8500, Florence, Colorado 81226-8500. James Burrell Community Corrections and Detention Division, Detention Branch 400 1st Street, Room 2004 Washington D.C. 20534. David Duncan FCI Manchester 805 Fox Hollow Road Manchester KY 40962

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CERTIFICATE OF FILING I hereby certify that on the 17th day of October, 2005, the foregoing was E-Filed to:

United States Magistrate Judge Patricia A. Coan United States District Court 901 19th Street Denver, Colorado 80294 ___________________________________

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