Ajaj v. Fozzard
| Decision Date | 18 April 2023 |
| Docket Number | 14-cv-01245-JPG |
| Parties | AHMAD M. AJAJ, Plaintiff, v. GARRETT FOZZARD, Defendant. |
| Court | U.S. District Court — Southern District of Illinois |
This case now focuses on Plaintiff Ahmad Ajaj's Eighth Amendment excessive force claim (Count 1) against Officer Garrett Fozzard brought pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). In the operative Complaint,[1] Ajaj alleges that Officer Fozzard struck him in the back with an open padlock on October 27, 2011. (Doc. 221). This claim survived screening under 28 U.S.C § 1915A and dismissal under Federal Rules of Civil Procedure 12 and 56.
Officer Fozzard now seeks dismissal of Count 1 pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) based on the United States Supreme Court's decision in Egbert v. Boule, 142 S.Ct 1793 (June 8, 2022). The Supreme Court clarified in Egbert that the implied damages remedy recognized in Bivens should not be expanded into any next context if special factors counsel hesitation in doing so, and a court should not imply a cause of action if there is a single rational reason to believe that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed. Id. at 1805. In the wake of Egbert, Officer Fozzard filed a Supplemental Motion to Dismiss For Failure to State a Claim Due to Intervening Supreme Court Decision (“Supplemental Motion to Dismiss”). (Doc. 292). Ajaj opposes the motion. (Doc. 293). Because this claim presents a new Bivens context and special factors counsel against expansion of the Bivens remedy into this new realm post-Egbert, the motion shall be GRANTED and this claim DISMISSED.
Ahmad Ajaj is a practicing Muslim who is currently in the custody of the Federal Bureau of Prisons (“BOP”) and serving a sentence for convictions stemming from his involvement in the 1993 World Trade Center bombing. See United States v. Salameh, 856 F.Supp. 781, 782 (S.D.N.Y.1994). On November 3, 2014, Ajaj filed this lawsuit against the United States, BOP, and BOP staff for violations of his federal statutory and constitutional rights at numerous federal institutions between May 1997 and May 2012. In a half dozen complaints (Docs. 1, 18, 146, 185, 221, and 258) filed in as many years, Ajaj asserted claims against the defendants pursuant to Bivens (Counts 1 through 7), the Religious Freedom Restoration Act (“RFRA”) (Count 8), and the Federal Tort Claims Act (“FTCA”) (Counts 9 through 12). The Fourth Amended Complaint (“FAC”) now controls this case and includes all, but the FTCA, claims.[2]
During its protracted lifetime, this matter has been narrowed down to a single Eighth Amendment excessive force claim against Officer Garrett Fozzard.[3] Ajaj encountered the officer while housed at federal facilities in Florence, Colorado (1994-98) and Marion, Illinois (2010-12). By way of background information, Ajaj alleges that he first met Officer Fozzard in the late 1990s at the United States Penitentiary, Administrative Maximum Facility near Florence, Colorado (“ADX-Florence”). (Doc. 221). Officer Fozzard was part of a “rogue” group of correctional officers referred to as “the Cowboys” and known for “depriving inmates . . . of their constitutional rights and physically assaulting them.” (Id.). These officers allegedly subjected Ajaj to “abusive strip searches,” “excessively painful restraints,” and “physical and verbal abuses” while escorting him to Missouri for treatment of lung cancer in 1997. (Id. at 4-5).
Court 1 arises from events that occurred fourteen years later at the United States Penitentiary in Marion, Illinois (“USP-Marion”). (Doc. 221, ¶ 48). Ajaj transferred to USP-Marion in January 2010, and Officer Fozzard transferred there in September 2011. (Id. at ¶¶ 3538). The officer was assigned to work in the same unit where Ajaj was housed. (Id.). He soon began harassing Arab and Muslim inmates. (Id.). Ajaj made several verbal complaints, but no one intervened to stop the abuse. (Id. at ¶¶ 37-47). Then, on October 27, 2011, Officer Fozzard “struck [him] several times, using a combination lock, a shoe, and other objects [he threw] in plaintiff's cell.” (Id. at ¶ 48). Ajaj grieved the assault by filing Administrative Remedy Request No. 664231 (“Request No. 664231”), and he claims that this triggered retaliation by staff members. (Doc. 221, ¶¶ 54-55; Doc. 204-5, pp. 87-89). Count 1 arises from Officer Fozzard's use of excessive force against Ajaj on October 27, 2011. (See Doc. 221, ¶ 48).
Supplemental Motion to Dismiss (DOC. 292)
Officer Fozzard moved for dismissal of the Eighth Amendment excessive force claim in Count 1 under Rule 12(b)(6) after the United States Supreme Court issued its decision in Egbert v. Boule, 142 S.Ct. 1793 (June 8, 2022). (Doc. 292). In Egbert, the Supreme Court declined to recognize a Bivens remedy for a Fourth Amendment excessive force claim and a First Amendment retaliation claim against a Border Patrol Agent, after finding that both claims presented new contexts under Bivens and special factors counseled hesitation in expansion of this remedy. Id. Officer Fozzard asks this Court to dismiss Count 1 on the same grounds. Id.
Ajaj counters that the Eighth Amendment excessive force claim is, at most, a modest extension of the Eighth Amendment claims already recognized by the Supreme Court in Carlson v. Green, 446 U.S. 14 (1980), and Farmer v. Brennan, 511 U.S. 825 (1994). (Doc. 293). And, Count 1 is not unlike the Eighth Amendment claims allowed to proceed in Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018), and Hoffman v. Preston, 26 F4 1059 (9th Cir. Feb. 28, 2022). Id. Relying on this authority, Ajaj asks the Court to find that Count 1 presents no new context and that no special factors foreclose the claim here. Id.
A motion to dismiss filed under Rule 12(b)(6) serves the purpose of deciding the adequacy of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion, a complaint must allege enough factual information to “state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A Plaintiff need not plead detailed factual allegations, but he or she must provide “more than labels and conclusions, and a formulaic recitation of the elements.” Twombly, 550 U.S. at 570. When considering a Rule 12(b)(6) motion, the Court must accept well-pleaded facts as true and draw all inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 879 (7th Cir. 2012).
Section 1915(e)(2)(B) invests district judges with authority to spontaneously dismiss defective suits filed by inmates proceeding in forma pauperis and “save everyone time and legal expense,” if the court determines that the action is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from suit. Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003); 28 U.S.C. § 1915(e)(2)(B). It explicitly provides: “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Ajaj seeks damages against Officer Fozzard for violating his right to be free from cruel and unusual punishment under the Eighth Amendment and pursuant to Bivens. (Doc. 221). A claim brought against a federal officer pursuant to Bivens is the federal counterpart to a claim against a state actor under 42 U.S.C. § 1983. However, the two claims are not the same. Congress enacted Section 1983 in order to authorize a suit for money damages against a state actor for constitutional deprivations without creating an analogous statute authorizing a suit for money damages against a federal agent. Ziglar v. Abbasi, 582 U.S 120, 130 (7th Cir. 2017). There is no Congressional authority to award damages against a federal official who violates the Constitution while acting under color of federal law. Id. at 130.
Bivens was decided against this backdrop. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971). In Bivens, the Supreme Court enforced a damages remedy against federal narcotics agents who violated the Fourth Amendment prohibition against unreasonable searches and seizures by arresting a man in his home and conducting a search without a warrant or probable cause. Id. The Court acknowledged that the Fourth Amendment does not explicitly provide for a damages remedy. Abbasi, 582 U.S. at 131 (citing Bivens, 403 U.S. at 396-97). At the same time, the Court observed that Congress took no action to foreclose this remedy in “explicit terms,” and no “special factors” suggested that the judiciary should “‘hesitat[e]' in the face of congressional silence.” Id. Relying on general principles of federal jurisdiction, the Court concluded that it could authorize a damages remedy and did so in Bivens. Id. (citing Bivens, 403 U.S. at 392; Bell v. Hood, 327 U.S. 678, 684 (1946)). The Supreme Court subsequently extended this remedy twice, to a Fifth Amendment due process claim involving gender discrimination in federal...
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