Opinion

Ajaj v. United States of America

Court
District Court, M.D. Pennsylvania
Filed
Jul 31, 2024
Cited by
0 cases
Authority
More cited than 31.8%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

AHMAD M. AJAJ, :

Plaintiff : CIVIL ACTION NO, 3:22-CV-1455

V. : (JUDGE MARION)

UNITED STATES

OF AMERICA, et al., :

Defendants :

MEMORANDUM

Presently before the court in this prisoner civil rights case is

defendants’ motion to dismiss plaintiffs complaint. For the reasons set forth

below, the motion will be granted in part and denied in part and plaintiff will

be granted leave to file an amended complaint.

I. BACKGROUND

Plaintiff, Anmad M. Ajaj, who is currently incarcerated in (JSP-Coleman

in Coleman, Florida but was incarcerated in FCI-Allenwocd in Allenwood,

Pennsylvania at all relevant times, brings the instant case pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), the Religious Freedom Restoration Act (“RFRA”), and the Federal

Tort Claims Act (“FTCA”) alleging violations of his freedom of religion during

his incarceration at FCl-Allenwood. Ajaj filed his complaint on S3eptember 12,

2022, and the court received and docketed it on Septemher 19, 2022. (Doc.

1 at 27).

According to the allegations in the complaint, Ajaj is a devout Muslim

who practiced his faith during the entirety of his incarceration at FCI-

Allenwood. (/d. J] 24-27). The complaint states that during the holy month

of Ramadan, Ajaj’s Muslim faith requires him to fast from dawn until dusk

every day. (/d. 31). This fasting generally prohibits Muslims from ingesting

prescribed medication from dawn to dusk, “as long as taking those

medications outside of fasting hours will not have an adverse effect on their

health.” (/d. | 35). The complaint states that guidelines published by the

United States Bureau of Prisons (“BOP”) recognize that Muslims’ requests

to take their prescribed medication outside of fasting hours during Ramadan

should generally be honored. (/d. {| 38).

Consistent with his Muslim faith and these BOP guidelines, Ajaj

requested that BOP officials deliver his prescribed medicaticns—Modafinil

and Wellbutrin—to him outside of fasting hours during Ramadzan in 2019. (/d.

40). Defendants Gibson, Magyar, Buschman, and Cieslukowski

purportedly assured Ajaj prior to Ramadan that they would do so. (/d. {] 41).

At the beginning of Ramadan, however, defendants purpertedly “changed

their mind” and informed Ajaj that his medication would be delivered during

fasting hours. (/d. {| 42). Ajaj refused to take the medications during fasting

hours. (/d. {| 43). This led defendant Buschman to permanently cancel Ajaj’s

Modafinil prescription and suspend his Wellbutrin prescription for the

duration of Ramadan. (/d.)

The complaint alleges that Modafinil had originally been prescribed to

treat Ajaj's Chronic Fatigue Syndrome after all other prescribed medications

had failed to remedy his symptoms. (/d. J 44). The complaint alleges that

Modafinil significantly improved Ajaj’s symptoms. (/d.) The complaint alleges

that neither Modafinil nor Wellbutrin should be discontinusd suddenly but

rather should be gradually reduced before a patient is taken off of them. (/d.

46). Contrary to this fact, however, defendant Buschnnan allegedly

canceled Ajaj’s prescriptions suddenly and for non-medical reasons, □□□□□

Ajaj’s refusal to take the medications during the fasting) hours. (/d.)

Buschman also purportedly fabricated medical notes to indicate that he had

canceled the prescriptions for medical reasons. (/d. {| 47'. [he complaint

further alleges that prior to Ajaj’s incarceration in FCl-Allenwo od, officials in

other federal prisons had provided him medication outside of fasting hours

during Ramadan without issue. (/d. {J 50).

The sudden discontinuance of Modafinil and Wellbutriin purportedly

caused Ajaj to experience numerous adverse symporns, including

“uncontrolled agitation and _ irritability, racing thoughts, headaches,

weakness, pain, increased fatigue, unrefreshing sleep, fog brain, short-term

memory problems, nervousness, depression, anxiety, and lack of

wakefulness.” (/d. J 53). Ajaj reported the symptoms to defendants

Buschman, Magyar, Gibson, and other officials, but they allegedly failed to

take any corrective action. (/d. {| 54). As of the date of the complaint, Ajaj

continued to not receive any Modafinil due to Buschman canceling the

prescription. (/d. {] 55). Ajaj repeatedly asked Buschman to reinstate the

prescription, but Buschman allegedly refused to do so and blocked other

officials from doing so. (/d. 4] 56). Ajaj also purportedly asked defendants

Quay, Gibson, Wertman, and Magyar to direct Buschman to reinstate the

Modafinil prescription, but they similarly refused to do so. (/d. 57).

The complaint alleges that during Ramadan, Muslims are required to

participate in nightly Tarawih prayer with other Muslims. (/d. J 58).

Defendants Quay, Gibson, Wertman, Hall, and Cieslukowski purportedly

prevented Ajaj and other Muslim inmates from participating in the Tarawih

prayers during Ramadan in 2019, 2020, and 2021. (/d. J] 59).

The complaint further alleges that Ajaj’s Muslim faith requires him to

only eat halal meals. (/d. {| 60). Defendants Quay, Gibson, Wertman,

Cieslukowski, and Shaffer purportedly denied Ajaj’s requests to purchase

halal meals with his own money during his incarceration in FCl-Allenwood

from February 2019 to September 2021. (/d. f 62). Defendants Quay,

Gibson, Wertman, Cieslukowski, Buschman, Shaffer, and Magyar also

denied repeated requests from Ajaj for a halal diet. (/d. J 87). Ajaj was

purportedly forced to reject all pre-packaged meals because they were not

halal, which led Ajaj to have almost nothing to eat from Food Services in the

prison. (/d. J 88).

According to the complaint, Ajaj’s Muslim faith also requires him to

participate in periodic Sunnah fasts, which like fasting curing Ramadan

requires a Muslim to fast from dawn until dusk. (/d. {] 63-64). Sunnah fasts

similarly require Muslims not to ingest medications during fastinig hours. (/d.

q 65). Defendants Quay, Gibson, Wertman, Hall, Buschman, Magyar, and

Shaffer purportedly refused to accommodate Ajaj’s requests to ;oarticipate in

Sunnah fasts from February 2019 to September 2021 by refusing to deliver

his meals or medications outside of fasting hours. (/d. ]] 67)

The complaint alleges that prior to Ajaj’s transfer to FC|-All enwood, the

clinical director at FCC-Terre Haute recommended thait Ajaj be given a low-

fat diet for medical reasons, including “No milk/cheese products.. No cereals,

soy, cooked grains. No PB, processed meat, vegetable, caffeine. Baked

instead of fried foods. White bread-not wheat.” (/d. {| 83). Defendant

Buschman purportedly canceled this diet for nonmedical reasons upon Ajaj’s

arrival at FCl-Allenwood. (/d. § 84). Buschman also purportedly “conspired

with others” by “fabricating statements under the penalty of perjury to deprive

[Ajaj] of halal diet consistent with his medical needs.” (/d. {| 86).

On March 27, 2019, defendant Shaffer allegedly conspired with other

individuals to fabricate a declaration for the purpose of derying Ajaj a halal

diet. (/d. 89). Ajaj asked defendant Prutzman to preserve video recordings

and scanning data from the prison’s chow hall that would purportedly

establish that the statements in the declaration were fabricated. (/d. {J 90).

Ajaj also asked defendants Quay, Gibson, Wertman, Prutzman, and other

individuals to notify the court in another pending civil action that the

declaration was fabricated, but they refused to do so. (/d. 991'). Defendants’

actions purportedly led that court to deny Ajaj’s request for a hialal diet. (/d.)

The complaint alleges that BOP officials, including defendants Quay,

Gibson, Wertman, Cieslukowski, Buschman, Shaffer «and Magyar,

repeatedly provided prepackaged foods to Ajaj that were rot [halal because

they were provided by a company that had been found guity of mislabeling

its products as halal. (/d. J] 92).

Around September 2020, BOP officials began previcling Ajaj with

prepackaged meals provided by a company called Labriute Merals. (/d. {] 96).

The meals had been certified halal by the Islamic Institute of Minnesota. (/d.

q 97). Because Ajaj had not previously heard of Labriute Meals or the Islamic

Institute of Minnesota, he asked defendants Quay, Gibson, Wertman,

Cieslukowski, Shaffer, and other BOP officials to contact Labriute Meals and

the Islamic Institute of Minnesota to inquire whether their practices were

actually halal. (/d. □□□ 100-01). Defendants refused to do so and instead

instructed Ajaj to seek confirmation on his own as to whether the entities

complied with halal requirements. (/d. J] 101).

On January 3, 2021, Ajaj sent a text message to Labriute’s halal

certifier with eight questions related to the company’s practices. (/d. {J 102).

Defendant Valencik, who is responsible for reviewing emails and texts sent

by inmates to outside entities, purportedly approved the text message. (/d.

103-04). Seven weeks later, however, Ajaj was cited for nnisconduct for

“circumventing monitoring procedures” by sending the text message. (/d. □

105). Defendants Quay, Wertman, Hall, Prutzman, and Valencik ordered Ajaj

to be transferred to the prison’s Special Housing Unit (“SHU”) as a result of

the misconduct citation. (/d. | 111). Other inmates who had beer) ciarged

with more serious misconduct were purportedly not transferresd to the SHU

around this time. (/d. J 112). Defendant Bittenbend subsequently found Ajaj

guilty of the underlying misconduct charge and sentenced rim to 60 days of

disciplinary segregation, 18 months loss of visitation privileges, 18 months

without email privileges, and 27 days loss of good conduct time. (/d. J] 113-

14). Other non-Muslim inmates purportedly received less severe sanctions

for more serious offenses during this period. (/d. {| 115). The resulting

limitations on Ajaj’s privileges prevented Ajaj from calling or otherwise

contacting his mother in the time shortly before she died. (/d. J 118).

The complaint additionally alleges that defendants limited Ajaj’s access

to an imam or a Muslim chaplain. (/d. § 130). FCl-Allenwood purportedly

hired a Muslim chaplain on September 20, 2020, but defendants Quay,

Gibson, Wertman, Hall, Cieslukowski, and Carper’ denied Ajaj’s repeated

requests to perform any prayers with the chaplain. (/d. ¥ 133). They

purportedly also only allowed Ajaj to meet with the chaplain behind a solid

steel door in a noisy housing range. (/d. J 135). Ajaj, who only has one lung,

is purportedly unable to speak loudly enough to communicate in such a

setting. (/d. J 136). Defendant Bittenbend allegedly directed the chaplain not

to visit Ajaj in the SHU. (/d. J 137). Ajaj repeatedly requested transfer to

another institution where he could have more access to an imam or a Muslim

1 Defendant Carper is named as defendant Cooper in the complaint. The

court has granted plaintiff's motion to correct this defendant’s name to Carper

on the docket of this case. (See Doc. 28). The court will accordingly treat any

references to “Cooper” in the complaint as references to defendant Carper.

chaplain, but Quay, Wertman, Hall, and Cieslukowski refused to recommend

such a transfer. (/d. J 138). Ajaj was instead transferred to USP-Coleman,

which does not have an imam or Muslim chaplain. (/d. 140). Ajaj

accordingly has had no access to an imam or Muslim chaplain since

September 27, 2021. (/d.)

The complaint alleges that during Ajaj’s incarceration in FCI-

Allenwood, defendants Quay, Gibson, Wertman, Hall, (ieslukowski,

Prutzman, and Carper refused to allow Ajaj or other Muslirn inmates to

participate in Jum’ah, a congregational prayer that Muslims are: supposed to

undertake with other Muslims on Fridays. (/d. Jf] 146-47). Defendants

Gibson, Hall, and Cieslukowski also allegedly refused to proviide a suitable

area for Muslims to perform daily prayers. (/d. 4] 150). Ajaj went on hunger

strikes in March 2019 and September 2020 to protest his inability to engage

in daily prayer. (/d.) On September 21, 2020, defendants Quay, Gibson,

Wertman, and Prutzman allegedly filed disciplinary charges ag ainst Ajaj and

transferred him to the SHU to punish him for requesting transfer to a different

cell where he could perform his daily prayers. (/d. | 152). Defe ndants Quay,

Wertman, Hall, Cieslukowski, and Carper allegedly deprived /\jaj of access

to his prayer rug, prayer oil, and other items he needed to per form his daily

prayers, including a watch to know when to perform the prayer's. (/d. {] 153).

The complaint alleges that due to his Muslim faith, Ajaj has a sincere

religious objection to the practice of strip searches. (/d. {| 159). Defendants

Quay, Gibson, Wertman, Hall, Carper, Pensyl, Rung, Lynch, Williams, and

Friant repeatedly denied Ajaj’s requests to be free from strip searches and

to instead be searched by readily available electronic metal detectors and

body scanners. (/d. J 163).

During the COVID-19 pandemic, defendants Quay, Gibson, Wertman,

Magyar, and Buschman purportedly denied Ajaj’s repeated requests to take

protective actions to minimize Ajaj’s exposure to the virus. (/d. | 171). After

Ajaj emailed his lawyer and other individuals about the purported refusal by

FCl-Allenwood staff to follow COVID-19 guidelines, defendants Quay,

Gibson, Wertman, Hall, and others purportedly retaliated against him by

expelling him from the “Challenge Program” and placing him with a cellmate

who was infected with COVID-19. (/d.) Ajaj tested positive for the virus on

November 20, 2020. (/d. J 173). Ajaj suffered from various symptoms,

including “chills, coughing, loss of sense of smell and taste, chest pain,

shortnesss of breath, pain, weakness, fatigue, fog brain, loss of appetite, sore

throat, weakness, loss of hearing in one of his ears for a period of time, sore

throat, numbness on his face, and other symptoms.” (/d. ¥] 17’5). Unnamed

defendants purportedly denied him medical care to treat these symptoms.

10

(Id. | 174). The complaint alleges that Ajaj suffers ongoing symptoms from

COVID-19, including “serious damage to [his] heart, which includes

sever[e]ly hypokinetic.” (/d. J 176). The complaint additionally alleges that

unnamed defendants deprived Ajaj of “fresh air, sunlight, and other basic

human needs” from February 24, 2021 to September 27, 2021.” (/d. J 178).

On March 4, 2021, defendant Lynch allegedly “physically assaulted”

Ajaj and defendant Rung allegedly “sexually harassed” him. (/d. J 180). On

the same day, defendants Carper, Pensyl, Rung, and other individuals

allegedly confiscated Ajaj’s clothing, sheets, blankets, towels, socks, shoes,

washcloth, and other items and compelled him to dress in paper clothing that

tore easily. (/d. J 181). This was allegedly done for “retaliatory reasons.” (/d.)

The complaint alleges that forcing Ajaj to wear this clothing violated his

religious beliefs because it led to his naked body being frequently exposed.

(Id. § 105).2 The complaint further alleges that defendants Carper, Pensyl,

Rung, Lynch, and Friant deprived Ajaj of shoes to wear from March 4, 2021

to March 17, 2021, with the approval of defendants Quay, Wertman, Hall,

and Prutzman. (/d. §| 109). Defendants Carper, Pensyl, Rung, Lynch,

Williams, and Friant purportedly made Ajaj wear the same dirty jumpsuit for

2 The complaint’s numbered paragraphs erroneously proceed from 181 to

102 on page 21. The court will cite the paragraph numbers as they appear

in plaintiff's complaint.

11

weeks and denied him clean bedding for almost two months during his time

in the SHU. (/d. 110). Defendants also allegedly denied him cleaning

supplies that were provided to all other inmates in the SHU. (/d. J 111).

Defendants Pensyl, Williams, and others purportedly applied belly

chains and handcuffs to Ajaj that were too tight in order to cause him physical

pain while he was in the SHU. (/d. J 112). Ajaj requested that photographs

be taken of the wounds caused by these restraints, but defendants Quay,

Wertman, Hall, Prutzman, Buschman, and Hernandez refused to take the

photographs. (/d. §[ 113). The complaint alleges the excessively tight

restraints exacerbated Ajaj’s preexisting medical conditions of “peripheral

neuropathy, lumbago, severe spinal stenosis, Jumbar with neurogenic

claudication, carpal tunnel syndrome, and polyneuropathy.” (/d. {J 116).

From July 29, 2021 to August 6, 2021, defendants Carper, Pensyl,

Rung, Friat, and other individuals purportedly compelled Ajaj to remain in a

cell that was flooded with human waste and refused to provide him cleaning

supplies or move him to another cell. (/d. 117). Ajaj was unable to perform

his daily prayers during this time because his Muslim faith requires that he

perform them on a clean floor. (/d. J 118).

The complaint alleges that defendant Pensyl repeatedly used “force

team” against Ajaj while he was in the SHU and that Ajaj was repeatedly

:

pepper-sprayed while in the unit. (/d. Jf] 119-20). On one occasion,

defendant Buschman purportedly canceled an appointment for Ajaj to

receive medical care for exposure to pepper spray for nonmedical reasons.

(Id. 121).

The complaint alleges numerous deprivations of medical services and

medical prescriptions during the relevant period. From February 24, 2021 to

March 12, 2021, defendant Carper allegedly deprived Ajaj of a “medical

device,” which resulted in pain to Ajaj’s back, spine, and lower body. (/d. J

122). From February 8, 2019 to September 27, 2021, defendants Quay,

Gibson, Wertman, Buschman, Shaffer, and Magyar purportedly refused to

comply with a previous settlement between Ajaj and the United States that

compelled prison officials to provide Ajaj with “cancer preventing food items.”

(Id. J] 123). From February 24, 2021 to September 27, 2021, defendants

Quay, Wertman, Hall, Carper, Buschman, Magyar, and Hernandez allegedly

deprived Ajaj of medically prescribed splints and a brace for his carpal tunnel

syndrome. (/d. J 124). On July 15, 2021, defendant Carper allegedly

deprived Ajaj of a visit to an outside dermatologist, which allowed Ajaj’s

“chronic skin problems” to continue. (/d. {] 125). From May 17, 2021 to

September 27, 2021, defendants Carper and Pensyl purportedly deprived

plaintiff of medically prescribed Ensure and almond milk. (/d. {| 126).

13

The complaint alleges that defendants Pensyl, Prutzman, Easton, and

Bittenbend fabricated numerous incident reports against Ajaj. (/d. Jf] 127-

29). Defendants Carper and Prutzman also allegedly confiscated Ajaj’s

Qur'an and other religious items while he was in the SHU to prevent him from

practicing his Muslim faith. (/d. {J 130).

The complaint asserts claims for violation of Ajaj’s right to practice his

Muslim religion under the First Amendment and RFRA and a tort claim

against the United States pursuant to the FTCA. (See generally Doc. 1). Ajaj

requests damages, declaratory relief, and injunctive relief requiring

expungement of the allegedly wrongful disciplinary charges brought against

him. (See id. at 26). Defendants moved to dismiss the complaint on May 26,

2023.° (Doc. 22). Briefing on the motion is complete and it is ripe for review.

(Docs. 34, 43, 49.)

ll. © STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a

complaint for “failure to state a claim upon which relief may be granted.”

Under Rule 12(b)(6), the court must “accept all factual allegations as true,

3 The motion was initially styled in the alternative as either a motion to

dismiss or a motion for summary judgment. (Doc. 22). In their brief in support

of the motion, defendants withdraw the request for summary judgment and

clarify that they are only seeking dismissal based on the allegations in the

complaint. (Doc. 34 at 1 n.1).

14

construe the complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint, the

plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231

(3d Cir. 2008)). While a complaint need only contain “a short and plaint

statement of the claim, Fed. R. Civ. P. 8(a)(2), and detailed factual

allegations are not required, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007), a complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” /d. at 570. “The plausibility standard not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.s5. 662 (2009)

(quoting Twombly, 550 U.S. at 556). “[L]abels and conclusions” are not

enough, Twombly, 550 U.S. at 555, and a court “is not botncd to accept as

true a legal conclusion couched as a factual allegation.” /d.

In resolving a motion to dismiss, the court thus conduc:ts “a two-part

analysis.” Fowler, 578 F.3d at 210. First, the court separates the factual

elements from the legal elements and disregards the legal conclusions. /d.

at 210-11. Second, the court determines “whether the facts alleged in the

complaint are sufficient to show that the plaintiff has a pleussible claim for

relief.” Id. at 211 (quotations omitted).

15

Courts must liberally construe complaints brought by pro se litigants.

Sause v. Bauer, 585 U.S. 957, 960 (2018). Pro se complaints, “however

inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

lll. | DISCUSSION

A. Motion to Dismiss

Defendants advance four arguments for dismissal: (1) that defendant

Buschman is immune from suit as a member of the Public Health Service

pursuant to 42 U.S.C. §233(a); (2) that all individual defendants are entitled

to qualified immunity from Ajaj’s claims; (3) that Ajaj’s Bivens claims are an

impermissible extension of the Bivens damages remedy; and (4) that Ajaj’s

FTCA claim fails as a matter of law because it is based exclusively on

conclusory allegations.‘

The court begins, as it must, by disregarding the allegations in the

complaint that are conclusory in nature and therefore not entitled to the

4 Defendants’ brief also argues that the FTCA claim should be dismissed for

Ajaj’s failure to file a certificate of merit to the extent the claim is based on

allegations of medical malpractice. Defendants correctly concede in their

reply brief, however, that a subsequent Third Circuit case, Wilson v. United

States, 79 F.4th 312, 316 (3d Cir. 2023), holds that certificates of merit are

not required for FTCA claims. (Doc. 49 at 14). The court accordingly

disregards this argument.

16

assumption of truth. Fowler, 578 F.3d at 210-11. The court finds the following

allegations to be conclusory and not entitled to the assumption of truth: (1)

that Buschman fabricated medical notes to indicate that he was canceling

Ajaj’s prescriptions for medical reasons, (Doc. 1 {| 47); (2) that Buschman,

Shaffer, and others fabricated statements to deprive Ajaj of a halal diet, (id.

86, 89); (3) that Quay, Gibson, Wertman, and Prutzman fabricated

misconduct charges against him to punish him for requesting transfer to

another institution, (id. J 152); (4) that Quay, Gibson, Wertman, Magyar, and

Buschman denied Ajaj’s requests to take action to protect Ajaj from COVID-

19, (id. J 171); (5) that defendants denied him medical care to treat his

COVID-19 symptoms, (id. J 174); (6) that defendants deprived Ajaj of “fresh

air, sunlight, and other basic human needs,” (id. J 178): (47) that Lynch

“physically assaulted” Ajaj and that Rung “sexually harassed him,” (id. J]

180); (8) that Pensyl repeatedly used “force team” against Ajeaj, (id. J] 119);

(9) that Buschman canceled an appointment for Ajaj to rece ve medical care

for exposure to pepper spray, (/d. J 121); (10) that Carper dapirived Ajaj of a

“medical device,” (id. J 122); (11) that Quay, Gibson, Wertnari, Buschman,

Shaffer, and Magyar refused to comply with a settlement agreement in an

unnamed case requiring prison officials to provide Ajaj “cencer preventing

food items,” (id. J 123); (12) that Carper deprived Ajaj of a visit to a

17

dermatologist, which exacerbated his “chronic skin problems,” (id. {] 125);

and (13) that Pensyl, Prutzman, Easton, and Bittenbend fabricated

numerous incident reports against Ajaj, (id. Jf] 127-29).

Once those conclusory allegations are stripped away, the court

liberally construes the complaint as alleging that defendants violated the First

Amendment and RFRA by refusing to provide Ajaj medication outside of

fasting hours during Ramadan and Sunnah fasts, preventing him from

engaging in Tarawih prayer during Ramadan, preventing him from eating a

halal diet, fabricating misconduct charges against him based on his attempts

to contact Labriute Meals, preventing him from consulting with an imam ora

Muslim chaplain, preventing him from engaging in Jurn’ah prayers,

preventing him from engaging in daily prayers, compelling rim to be strip

searched, compelling him to wear paper clothing, and depriving him of his

Qur’an. The court additionally liberally construes the complaint as alleging

violation of the FTCA based on Buschman discontinuing—aind refusing to

reinstate—Ajaj’s prescriptions for Modafinil and Wellbu:rin; Buschman

depriving him of a medically necessary low-fat diet; Pensyl and Williams

applying restraints that were too tight; and Quay Wertman, Hall, Carper,

Buschman, Magyar, and Hernandez denying him the use of medically

18

necessary splints and a brace. The court will analyze defendants’ arguments

for dismissal seriatim.

1. Claims Against Buschman

The court begins its analysis with defendant Buschman’s argument

that he is entitled to immunity from Ajaj’s claim pursuant to 42 U.S.C. §233(a)

because the claims arise from medical care he provided to Ajaaj in his official

capacity as an officer of the United States Public Health Service (“PHS”).

(Doc. 34 at 23-24).

The court agrees that defendant Buschman is entiled to absolute

immunity from Ajaj’s claims pursuant to Section 233(a). Section 233(a)

“grants absolute immunity to PHS officers and employees for iactions arising

out of the performance of medical or related functions within the scope of

their employment by barring all actions against them for sucii conduct.” Hui

v. Castaneda, 559 U.S. 799, 806 (2010). Immunity under Section 233(a) may

be raised in a motion to dismiss, and the defendant may establish that he

was acting as a PHS officer by filing “a declaration affirrning that the

defendant was a PHS official during the relevant time period.” /d. at 802 n.1,

811. Here, Buschman has filed a declaration affirming that he was acting as

a PHS officer, and it is clear from the complaint that the clainis against him

19

are based on decisions he made in that capacity. The court will accordingly

dismiss all claims against Buschman pursuant to 42 U.S.C. §233(a).

2. FTCA Claims Will Be Dismissed for Failure to Exhaust°

Before asserting an FTCA claim in federal court a plaintiff must first

exhaust administrative remedies. 28 U.S.C. §2675(a); Shelton v. Bledsoe,

775 F.3d 554, 569 (3d Cir. 2015). Exhaustion under the FTCA is jurisdictional

and cannot be waived. Shelton, 775 F.3d at 569. FTCA claims should

therefore be dismissed for lack of subject matter jurisdction when the

plaintiff's complaint fails to allege that he exhausted administrative remedies.

See, e.g., McClure v. Fed. Bureau of Prisons, No. 1:23-CV-1060, 2023 WL

8437047, at *3 (M.D. Pa. Dec. 5, 2023); Geiger v. United States of America,

No. 3:23-CV-1079, 2023 WL 3136405, at *4 (M.D. PA. April 27, 2023); 35A

Am. Jur. 2d Federal Tort Claims Act §209, Westlaw (database updated May

2024). Courts should generally grant the plaintiff leave to amend to cure the

5 Defendants’ motion to dismiss does not argue that Ajaj failed to exhaust

administrative remedies with respect to his FTCA claims. The court may

nevertheless raise the issue of exhaustion sua sponte pursuant to its

screening authority under 28 U.S.C. §1915A. Furthermore, because

exhaustion of administrative remedies under the FTCA ig ai jurisdictional

issue that cannot be waived, this court is obligated to consicer the issue sua

sponte. See Fort Bend Cty., Tex. v. Davis, 587 U.S. 541, 548 (2019) (noting

that federal courts are continually obligated to review whether they have

subject matter jurisdiction and must raise subject matter juris diction issues

sua sponte).

20

absence of allegations as to exhaustion of administrative remedies before

ultimately dismissing the claims. /d.

In this case, Ajaj’s complaint is completely silent as to his attempts to

exhaust administrative remedies on his FTCA claims. There are simply no

allegations from which it can be concluded or inferred that he exhausted

administrative remedies. Accordingly, the court will dismiss Ajaj’s FTCA

claims without prejudice for lack of subject matter jurisdiction and grant leave

to amend to allege facts showing that he exhausted administrative remedies.

3. Ajaj’s Bivens Claims Are Not Cognizable

Ajaj's First Amendment claims are filed pursuant to Bivens, 403 U.S.

at 388. Ziglar v. Abbasi, 582 U.S. 120 (2017) and its progeny significantly

limit the circumstances under which a Bivens claim may proceed. Under

Abbasi, courts considering a Bivens claim must first determine whether the

claim presents a “new context” for a Bivens claim, in other words, whether it

differs “in a meaningful way” from the three cases in which the Supreme

Court has explicitly recognized a Bivens remedy in the past—Bivens, 403

U.S. at 397, Davis v. Passman, 442 U.S. 228, 248-49 (1979), and Carlson v.

Green, 446 U.S. 14, 18-23 (1980). Abbasi, 582 U.S. at 138-39.

If the case presents a new context, the court must determine whether

any “special factors” counsel against extending a Bivens remedy to that

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context. Hernandez v. Mesa, 589 U.S. 93, 102 (2020). To conduct this

analysis, the court must determine whether “the Judiciary is at least arguably

less equipped than Congress to weigh the costs and benefits of allowing a

damages action to proceed.” Egbert v. Boule, 596 U.S. 482, 492 (2022)

(quoting Abbasi, 582 U.S. at 136). If a court concludes that “even a single

reason” exists to pause “before applying Bivens in a new context,” then

special factors counseling hesitation exist and a Bivens remedy does not lie.

Id. (quoting Hernandez, 589 U.S. at 102) (internal quotation marks omitted).

If there is “any rational reason (even one) to think that Congress is better

suited” to determine the propriety of a cause of action, then a Bivens action

cannot proceed. /d. at 496. The court must broadly inquire whether “there is

any reason to think that ‘judicial intrusion’ into a given field might be ‘harmful’

or ‘inappropriate’ —and if the answer is “yes,” or even potentially yes, the

plaintiff cannot recover under Bivens. Id.

In this case, Ajaj’s Bivens claims allege violations of his First

Amendment right of freedom of religion. These claims clearly present a new

context for Bivens liability. As the United States Court of Appeals for the Third

Circuit has recognized, “neither the Supreme Court nor this Court has ever

extended Bivens to Free Exercise claims.” Mack v. Warden Loretto FCI, 839

F.3d 286, 305 (3d Cir. 2016).

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It is also clear that special factors counsel against extending Bivens to

this new context. The Supreme Court has recognized that “when alternative

methods of relief are available, a Bivens remedy usually is not.” Abbasi, 582

U.S. at 145. “If there are alternative remedial structures in place, ‘that alone,’

like any special factor, is reason enough to ‘limit the power off the Judiciary

to infer a new Bivens cause of action.” Egbert, 596 U.S. at 493 (citing

Abbasi, 582 U.S. at 137). In this case, RFRA is an alternative remedial

structure that counsels against extending Bivens to the free sxe2rcise context.

As the Third Circuit has explained:

RFRA strongly militates against creating a Bivens action for Free

Exercise claims. . . . RFRA provides [a plaintff] with a

comprehensive remedial scheme for violations of sulostantial

burdens on his religious exercise. Indeed, “Congress enacted

RFRA in order to provide greater protection for religious «exercise

than is available under the First Amendment.” Under RFRA,

burdens on religious exercise need not be intentonal, only

substantial. And, as we have explained, RFRA y;rovides

claimants with all “appropriate relief’ for such violationss. Given

this alternative remedial scheme, we can conceive no adequate

justification for extending Bivens to Free Exercise clams.

Mack, 839 F.3d at 305. Accordingly, because Ajaj’s Bivens ciaims present a

new context for Bivens liability and RFRA is an alternative remedy for the

claims that strongly militates against extending the Bivens remedy, we will

dismiss the Bivens claims with prejudice as an impermissible? extension of

Bivens.

23

4. RFRA Claims

“RFRA prohibits the ‘Government from substantially burdening a

person’s exercise of religion even if the burden results from a rule of general

applicability’ unless the Government ‘demonstrates that application of the

burden to the person—(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering tnat compelling

governmental interest.”” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682,

705 (2014) (cleaned up) (quoting 42 U.S.C. §2000bb-1). To state a prima

facie RFRA claim, a plaintiff “must allege that the government (1)

substantially burdened (2) a sincere (3) religious exercise.” Davis v. Wigen,

82 F.4th 204, 211 (3d Cir. 2023) (quoting Mack, 839 F.3d at 304). At the

pleading stage, the court must only inquire whether plaintiff has; alleged these

elements. /d. Once the case moves to summary judgment ora trial, however,

“if the plaintiff makes an initial showing that the defendant substantially

burdened his sincere religious exercise, then the burden shifts to the

defendant to show that the offending policy is the least resivicctive means of

achieving a compelling government interest.” /d. A subsitantiat burden occurs

when “1) a follower is forced to choose between following the precepts of his

religion and forfeiting benefits otherwise generally available to other inmates

versus abandoning one of the precepts of his religion in orde:r to receive a

24

benefit; OR 2) the government puts substantial pressure on an adherent to

substantially modify his behavior and to violate his beliefs.” /d. (quoting

Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007)).

In this case, defendants argue that Ajaj’s RFRA clairns should be

dismissed on the basis of qualified immunity because Ajaj has not alleged

violations of RFRA and the rights that defendants allegedly viollated were not

clearly established at the time of the alleged conduct. (Doc. 24 at 24-40).

Qualified immunity “shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Mullenix v. Luna, 577

U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

The test is whether, on an objective basis, no reasonable, competent official

would have reached the same conclusion as was reached by the defendant.

Malley v. Briggs, 475 U.S. 335, 341 (1986). If officials of reasonable

competence could disagree on this issue, immunity shoulc be recognized.

Id. Even if the official's conduct violates a person’s constituticnal rights, the

official would be immune from liability if his conduct were dus to a mistake in

judgment. /d.; Butz v. Economu, 438 U.S. 478 (1978). Thus. the only inquiry

which must be undertaken is a question of law, that is: “the ot>jective (albeit

fact-specific) question” whether a reasonable official in the defendant's

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position in this case could have believed his actions “to be lawful, in light of

clearly established law and the information . . . [he] possessed.” Anderson v.

Creighton, 483 U.S. 635, 641 (1987).

“Clearly established means that, at the time of the officer's conduct,

the law was sufficiently clear that every reasonable official would understand

that what he is doing is unlawful.” District of Columbia v. Wesby, 583 U.S. 48

(2018) (cleaned up). For qualified-immunity purposes, “clearly established

rights are derived either from binding Supreme Court and Third Circuit

precedent or from a ‘robust consensus of cases of persuasive authority in

the Courts of Appeals.” Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir.

2018) (citation omitted).

Defendants assert that Ajaj fails to allege a violation of RFRA and that

any violation of RFRA was not based on a clearly established right. (Doc.

(Doc. 34 at 24-40). Defendants organize their argument into several discrete

arguments based on the individual actions on which Ajaj bases his RFRA

claim. (See id.) Defendants also argue that numerous defendants were not

personally involved in the alleged violation of Ajaj’s civil rights. (See id.)

The court finds that defendants are not entitled to qualified immunity at

this stage of litigation. As the court liberally construes the complaint, Ajaj

alleges a concerted effort by defendants to essentially ban him from any

26

practice of his Islamic faith. The court does not view the complaint as alleging

a RFRA violation based on the purported denial of Ajaj’s right to fast during

Ramadan, a second RFRA violation based on the deprivation of a halal diet,

etc. Rather, the court views the complaint as alleging that defendants

committed a single violation of RFRA by essentially banning him from

practicing his Muslim religion. Each factual instance in which defendants

purportedly restricted one aspect of Ajaj’s faith is simply an additional factual

allegation in support of the overarching theory that defendants violated

RFRA by essentially banning Ajaj from practicing his faith.

This alleged severe limitation on Ajaj’s ability to practice his Muslim

faith is sufficient to allege a violation of a clearly established right under

RFRA. “There can hardly be a more substantial burden on a religious

practice or exercise than its outright prohibition.” Davis, 82 F.4th at 212

(citing Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014). “While not

every government-imposed hurdle to the practice of sincere faith-based

conduct will be a substantial burden, the more proximate the government

action is to an outright bar, the more likely it is a substantial burden.” /d.

Because Ajaj alleges severe limitations on the practice of his religion that

can be liberally construed as essentially banning him from practicing the

religion, the court finds that he has stated a RFRA claim upon which relief

27

may be granted and that defendants are not entitled to qualified immunity

from the claim.

The court agrees with defendants, however, that the RFRA claim

should be dismissed against defendants Magyar, Hernandez, and Easton for

Ajaj’s failure to allege their personal involvement.® The only allegations

against Magyar, Hernandez, and Easton are either conclusory assertions

that are not entitled to the assumption of truth or relate to the FTCA claims

that the court has found are otherwise subject to dismissal. The court will

accordingly dismiss the claims against these defendants without prejudice

for failure to allege personal involvement.

B. Leave to Amend

Before dismissing a civil rights complaint for failure to state a claim

upon which relief may be granted, a district court must permit a curative

amendment unless the amendment would be inequitable or ‘futile. Phillips,

515 F.3d at 245. The court will deny leave to amend as futie vith respect to

Ajaj’s claims against defendant Buschman and his Bivens slai ms against all

defendants because those claims fail as a matter of law. The c:ourt will grant

Ajaj leave to amend his complaint in all other respects.

6 The court finds that the complaint adequately alleges the personal

involvement of all other defendants in the RFRA claim.

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IV. CONCLUSION

For the foregoing reasons, the court will grant defendants’ motion to

dismiss in part and deny it in part, allow Ajajs RFRA claim to proceed,

dismiss his claims against defendant Buschman and his Bivens claims

against all defendants with prejudice, dismiss all other claims without

prejudice, and grant Ajaj leave to file an amended complaint. An appropriate

order shall issue.

United States District Judge

Dated: ah fey

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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