Free Motion to Reopen Case - District Court of Colorado - Colorado

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

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Filed 07/24/2007

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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.

UNOPPOSED MOTION FOR REINSTATEMENT OF CASE TO AMEND ORDER TO DISMISS PROCEUDURAL DUE PROCESS CLAIM 3(B) WITH PREJUDICE

Plaintiff Ahmed M. Ajaj, by and through his counsel Carmen N. Decker of Montgomery Little Soran & Murray, P.C., moves this Court to reinstate Case 03:cv01959-MSK-PAC for purposes of amending its previous order to dismiss the procedural due process claim 3(B) with prejudice as follows: 1. D.C.COLO.LCivR 7.1 Certification. Counsel for Ajaj spoke with counsel

for Defendants, Amanda Rocque and Amy Padden regarding the relief requested in this motion, who indicated they were unopposed to this motion. 2. On December 22, 2006, this Court entered an Order granting qualified

immunity in favor of Defendant Federal Officers and dismissed all but one claim to this action. The remaining claim was Claim 3(B), denial of procedural due process with

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

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regard to Mr. Ajaj' request to enter the Step-Down Unit Program, against Mr. Wiley, s Mr. Nalley, and Mr. Hood in their official capacities. 3. 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. 4. On February 23, 2007, this Court entered an Order dismissing Plaintiff' s

remaining procedural due process claim without prejudice. 5. 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. 6. Mr. Ajaj does not intend to re-file the procedural due process claim related

to placement in the ADX Step-Down Unit Program as he was approved for and placed in the Step-Down Unit Program. Accordingly, pursuant to Fed. R. Civ. P. 60(b)(6) Mr. Ajaj respectfully requests the District Court re-instate District Court No. 03-cv-01959-MSKPAC for the purpose of amending its February 23, 2007 order of dismissal without prejudice to dismiss the procedural due process claim with prejudice so that Mr. Ajaj may proceed with his appeal.

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

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7.

Counsel for Mr. Ajaj has tendered to the Court with this Motion the

stipulation for dismissal with prejudice and order of dismissal in the event the Court grants his motion. Respectfully submitted this 24th day of July, 2007.

COUNSEL FOR PLAINTIFF AJAJ

s/ Carmen N. Decker____________ Carmen N. Decker Montgomery Little Soran & Murray, PC 5445 DTC Parkway, Suite 800 Greenwood Village, CO Telephone: (303) 773-8100 Facsimile: (303) 220-0412 E-mail: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on July 24, 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: Paul Farley, Esq. 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/ Deborah J. Harant_________________ Deborah J. Harant

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