Ajaj v. U.S.

• Decision Date: 19 March 2007
• Docket Number: C.A. No. 0:03-3776-CMC-BM.
• Citation: 479 F.Supp.2d 501
• Court: U.S. District Court — District of South Carolina
• Parties: Ahmed Mohammad AJAJ, Plaintiff, v. UNITED STATES of American, Dan L. Dove, "FNU" Allen, "FNU" Gravette, Kathleen Hawk, Michael Cooksey, Stan Yates, "FNU" Wade, "FNU" Vining, "FNU" Paul, "FNU" Chartier, "FNU" Berry, Defendants.

Page 501

479 F.Supp.2d 501

Ahmed Mohammad AJAJ, Plaintiff, v. UNITED STATES of American, Dan L. Dove, "FNU" Allen, "FNU" Gravette, Kathleen Hawk, Michael Cooksey, Stan Yates, "FNU" Wade, "FNU" Vining, "FNU" Paul, "FNU" Chartier, "FNU" Berry, Defendants.

C.A. No. 0:03-3776-CMC-BM.

United States District Court, D. South Carolina.

March 19, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ahmed Mohammad Ajaj, Florence USP, Florence, CO, Pro se.

Barbara Murcier Bowens, U.S. Attorneys Office, Robert David Garfield, Matthew B. Rosbrugh, Davidson Morrison and Lindemann, Daniel R. Settana, Jr., McKay Cauthen Settana Martin and Addison, Columbia, SC, for Defendants.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

CURRIE, District Judge.

This matter is before the court on Plaintiff's pro se complaint arising out of his incarceration at the Federal Correctional Institution in Edgefield, South Carolina ("FCI-Edgefield"). While not so limited, his claims relate primarily to his confinement in the Special Housing Unit ("SHU") from August 31, 2001 through September 4, 2001, and again from September 11, 2001 until his transfer to FCI-Florence in August 2002. FCI-Florence is located in Colorado.¹

In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), DSC, this matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings and a Report and Recommendation on any dispositive motions. On September 7, 2006, Magistrate Judge Marchant issued a Report and Recommendation ("Report") addressing various dispositive motions including motions to dismiss and for summary judgment. The Report recommended that Plaintiffs claims relating to his confinement in the FCI-Edgefield SHU from August 31, 2001 through September 4, 2001, be allowed to proceed to the extent they were pursued against Defendants Paul and Berry. The Report recommended that the motions to dismiss or for summary judgment be granted to the extent that claim was pursued against Defendant Allen and as to all Defendants as to all other claims. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and Recommendation and the serious consequences if he failed to do so.

Defendants Paul and Berry filed objections to the Report, asserting that the claims against them should not be allowed to proceed. These objections are based, in part, on their assertion of a qualified immunity defense.

Plaintiff filed objections to the remaining recommendations. These objections are supported by extensive materials which the court allowed to be filed subject to later determination as to whether they should be considered. See Dkt No. 395.² The court also afforded Plaintiff significantly more than the normal time to file his objections and supporting materials and made other, accommodations relating to the service of documents to insure that Plaintiff was afforded the maximum opportunity to fully present his objections. See Dkt. No. 393 (granting Plaintiff additional sixty days to file objections); Dkt No. 395 (quoted in n. 2 above — relieving Plaintiff from any obligation to serve Defendants with copies, of his submissions in this action).

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any portion of the Report and Recommendation of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 § 636(b).

After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, the objections of the parties, and the voluminous materials submitted by Plaintiff along with his objections, the court agrees with the conclusions of the Magistrate Judge as to all recommendations and, with one exception, for the reasons stated. As to some recommendations, the court writes further to address Plaintiffs recent evidentiary submissions. As to Plaintiffs tenth objection, the court declines to adopt one basis for the recommended ruling, but otherwise adopts the Magistrate Judge's reasoning and ultimate recommendation. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order except to the extent indicated below.

DISCUSSION

I. PAUL AND BERRY OBJECTIONS

Defendants Paul and Berry raise two objections. Their first objection challenges the Magistrate Judge's failure to recommend that they be granted summary judgment based on their assertion of a qualified immunity defense. Their second objection challenges consideration of an equal protection basis for Plaintiffs claim given his failure to expressly assert such a theory. The court finds both objections to be without merit.

Allegations at Issue. The allegations relevant to this claim are described by Defendant Berry in his objections as, follows:

Taking the facts most favorably to Plaintiff, Defendant Paul called the officer on duty in Plaintiffs housing unit pretending to be of Middle Eastern descent and seeking information about Plaintiff. Defendant Berry was present when Defendant Paul made the phone call. Plaintiffs name was arbitrarily chosen from the front page of an inmate roster. After the call, the unit officer reported the event to a supervisor. At that time, Defendants Paul and Berry "panicked," and failed to immediately report the incident to the shift supervisor.

* * *

The record clearly reflects that Defendants Paul and Berry's sole motivation behind the telephone call was their desire to play a joke on a particular, fellow co-worker. The nature of the prank was that Defendant Paul's voice would be disguised to be that of a Middle Eastern dialect so that they could get a reaction out of their co-worker. The subsequent actions by the prison employees were primarily impulsive and reactionary — the co-worker became anxious and notified his supervisor while both Defendants Paul and Berry got scared and failed to seek out their supervisors to own up to their involvement.

... Defendant Berry concedes that his involvement or participation in the decision to utilize a dialect of a particular foreign-based origin or ethnicity was plainly immature and inappropriate. However, the phone call, while indeed insensitive toward Middle Eastern sensibilities in a universal sense, was not intended or designed to personally discriminate against Plaintiff, rather, to play a prank intended to trick or embarrass a targeted co-worker in some fashion.

Dkt No. 394 at 1-2.

Except as to the motivation and the foreseeability of the prison official's response to the call, this description of events is a fairly accurate statement of the facts taken in the light most favorable to Plaintiff. The evidence regarding motivation is discussed below under "Equal Protection Theory." As to the foreseeability of the response, it is important to add that the call was made either on or to a secure line, thus causing prison officials to believe that their system or security had been breached. The reaction, placing Plaintiff in the SHU for several days until the event could be investigated, does not strike this court as unforeseeable given the nature of the call and the offense for which Plaintiff had been convicted (involvement in the first World Trade Center bombing).

Qualified Immunity. In support of their qualified immunity defense, Defendants characterize their actions as being a practical joke gone awry. Thus, they do not suggest that they were engaged in any action falling within the scope of their official duties or that any reasonable prison guards in their position would have believed that the conduct was within the scope of their authority. This, alone, precludes summary judgment in their favor on the qualified immunity defense, if not precluding the defense altogether. See In re Allen, 106 F.3d 582 (4th Cir.1997).

As the Fourth Circuit explained in In re Allen:

Before permitting an official to claim qualified immunity a court must determine that the official's acts were not clearly established to be beyond the scope of his authority. The defendant official bears the burden of demonstrating that the conduct of which the plaintiff complains "falls within the scope of the defendant's duties." Shechter v. Comptroller of New York, 79 F.3d 265, 268 (2d Cir.1996); Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988) (holding that for immunity an official "must first prove that `he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.'") (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983)); see also Mackey v. Dyke, 29 F.3d 1086, 1095 (6th Cir.1994) (finding that "defendants bear the initial burden ... [of] show[ing] they were acting within their discretionary authority at the time in question"); Gray v. Bell, 712 F.2d 490, 502 n. 36 (D.C.Cir.1983) ("It is clear that the scope of authority requirement is a prerequisite to any application of official immunity whatever the level of protection asserted or the nature of the claim involved."); Barker v. Norman, 651 F.2d 1107, 1124-25 (5th Cir.1981) (to claim qualified immunity, a defendant official must show that "the complained-of actions were undertaken pursuant to the performance of his duties and within the scope of his discretionary authority"). But, in order to ensure that public officials are adequately protected from liability, an official's conduct falls within his authority unless a reasonable official in the defendant's position would have known that the conduct was clearly established...