Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

Document 286

Filed 07/25/2007

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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. ROBERT A. HOOD, R. WILEY, and MICHAEL NALLEY, Defendants.

STIPULATED MOTION TO AMEND ORDER DISMISSING PROCEUDURAL DUE PROCESS CLAIM 3(B)

Plaintiff Ahmed M. Ajaj, by and through his counsel Carmen N. Decker of Montgomery Little Soran & Murray, P.C., and Defendants, by and through the

undersigned Assistant U.S. Attorney, hereby move to amend order dismissing Plaintiff' s procedural due process claim 3(B) pursuant to Fed. R. Civ. P. 41(a)(1)(ii) as follows: 1. On December 22, 2006, the Court ruled on the Federal Officers'Motion

for Summary Judgment (Doc. 260). The Court granted qualified immunity as to claims 2, 3(A), 3(B), and 5 and dismissed Claims 1, 2, 3(A), and 5. The remaining claim left for trial was Claim 3(B), denial of procedural due process with regard to Mr. Ajaj' request s to enter the Step-Down Unit Program, against Mr. Wiley, Mr. Nalley, and Mr. Hood in their official capacities.

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2.

On February 20, 2007, Mr. Ajaj filed a Notice of Appeal of regarding the

Court' December 22, 2006 Order granting qualified immunity as to claims 2, 3(A), 3(B), s and 5 and dismissing Claims 1, 2, 3(A), and 5. 3. On February 23, 2007, this Court entered an Order dismissing Plaintiff' s

remaining procedural due process claim without prejudice. 4. The United States Court of Appeals for the Tenth Circuit recently issued

an order advising the parties that because claims dismissed without prejudice remain viable in the district court, the dismissal of Plaintiff' procedural due process claim s without prejudice is ineffective for purposes of appellate jurisdiction. See Heimann v. Snead, 133 F.3d 767, 768-69 (10th Cir. 1998); (See Exhibit 1, Order of the Tenth Circuit dated July 12, 2007.) The Order indicates the parties must either file a district court order explicitly adjudicating, or dismissing with prejudice Mr. Ajaj' procedural due process s claim or provide a copy of a district court order containing a final judgment under Fed. R. Civ. P. 54(b). The parties are to do so no later than August 10, 2007. 5. In order for Mr. Ajaj to pursue his appeal and because he has been

approved for and placed in the Step-Down Unit Program, the remedy he was seeking under claim 3(B), the parties request amendment of the Court' Order dated February 23, s 2007 dismissing Plaintiff' claim 3(B) (denial of procedural due process with regard to s ADX step-downs) without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(ii). The parties request the Court enter an Order dismissing Plaintiff' claim 3(B) (denial of procedural s due process with regard to ADX step-downs) with prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(ii) with each party to bear its own attorneys' fees and costs.

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Respectfully submitted this 25th day of July, 2007.

TROY A. EID United States Attorney

s/Carmen Decker Carmen Decker Montgomery Little Soran & Murray, P.C. 5445 DTC Parkway, #800 Englewood, CO 80111-3053 Attorney for Plaintiff 303-773-8100 [email protected] Attorney for Plaintiff

s/Amy Padden Amy Padden Amanda Rocque Assistant United States Attorney Office of the United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 303-454-0100 [email protected] [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on July 25, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Amy Padden, Esq. Amanda Rocque, Esq. Elizabeth A. Weishaupl, Esq. Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 [email protected] [email protected] [email protected] I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants via U.S. Mail, postage prepaid, indicated by the nonparticipant' name, addressed to: s Ahmed M. Ajaj #40637-053 U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 Christopher Synsvoll, Esq. Federal Correctional Complex P.O. Box 8500 5880 Highway 67 South Florence, CO 81226 [email protected]

s/Kimberly D. Molenhouse_________________

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