Ahmad Ajaj v. Garrett Fozzard

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 28, 2024*
Decided August 30, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2219
AHMAD AJAJ,
Plaintiff-Appellant,
v.
GARRETT FOZZARD, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 14-cv-01245-JPG
J. Phil Gilbert,
Judge.
O R D E R
Ahmad Ajaj is serving a sentence for convictions related to the 1993 World Trade
Center bombing. He filed this lawsuit, alleging that the United States, the Bureau of
Prisons, and prison officials violated the Eighth Amendment and the Religious Freedom
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 6 --

No. 23-2219 Page 2
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, among other claims. Because the district
court properly dismissed or granted summary judgment on each claim, we affirm.
Ajaj, who has been serving his term of imprisonment since 1994 in various
federal facilities, filed this lawsuit in 2014. After years of litigation and several amended
complaints, his lawsuit contained eight claims. On appeal, he challenges only the
district court’s rejection of four of those claims, which all arose from his time at
USP-Marion: (1) Officer Garrett Fozzard, a correctional officer, harassed and assaulted
Ajaj in violation of his Eighth Amendment right to be free from cruel and unusual
punishment, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (Claim 1);
(2) Warden Wendy Roal, Assistant Warden Jeff Baney, and Associate Warden John
Parent knew of Fozzard’s animus but failed to protect Ajaj, in violation of the Eighth
Amendment (Claim 2); (3) David Szoke (clinical director), Jeff Irvin (food services
administrator), Mike Winklmeier (health services administrator), and Roal were
deliberately indifferent to Ajaj’s serious medical needs in violation of the Eighth
Amendment (Claim 5); and (4) Fozzard, Roal, Parent, Baney, Irvin, Winklmeier, Szoke,
and several other prison staff members burdened Ajaj’s sincerely-held religious beliefs
in violation of RFRA (Claim 8). (The district court dismissed the other claims, relating to
the First and Fifth Amendments, and Ajaj does not challenge that outcome.)
The district court dismissed Claim 1 because it involved applying Bivens in a new
context and special factors counseled against expanding Bivens to that context. The
court entered summary judgment for the defendants on Claim 2, because—after an
evidentiary hearing under Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)—it
determined that Ajaj had not properly exhausted his administrative remedies: He filed
a written grievance about Fozzard’s conduct, but he did not mention Roal, Baney, or
Parent. The court also entered summary judgment on Claim 5, finding that Ajaj brought
this claim too late because more than two years had passed since he was transferred out
of USP-Marion. And the court dismissed Claim 8, involving Ajaj’s allegations that
prison officials had violated RFRA, because he had not adequately described which
defendants committed which violations or supported his legal conclusions with any
factual allegations.
Ajaj appeals. We review the district court’s dismissals and entry of summary
judgment de novo, taking all facts in the light most favorable to Ajaj. Sorrentino v.
Godinez, 777 F.3d 410, 412 (7th Cir. 2015); Cesal v. Moats, 851 F.3d 714, 717 (7th Cir. 2017).

-- 2 of 6 --

No. 23-2219 Page 3
I. Claim One: Excessive Force and New Bivens Context
Ajaj first contends that he is entitled to damages—a Bivens remedy—for his claim
under the Eighth Amendment that Fozzard used excessive force against him. Ajaj
alleges that Fozzard strip-searched him, put him in painful restraints, used racial slurs,
and struck him with various objects including a lock and a shoe. He argues that these
actions were comparable to the claim in Bivens, which also involved excessive force.
To prevail on a Bivens claim, Ajaj must show that Fozzard violated the
Constitution while acting under color of federal law, and that the circumstances are
analogous to those in previous cases allowing a Bivens remedy. Bivens, 403 U.S. at 389;
Egbert v. Boule, 596 U.S. 482, 492 (2022). The Supreme Court has recognized Bivens
remedies in only three situations: a due process claim under the Fifth Amendment
involving gender discrimination in federal employment, Davis v. Passman, 442 U.S. 228
(1979); an Eighth Amendment claim for deliberate indifference to a serious medical
need, Carlson v. Green, 446 U.S. 14 (1980); and a Fourth Amendment claim for an
unreasonable search and seizure, Bivens, 403 U.S. at 389–90. The Court has since
cautioned against expanding Bivens to new contexts. See, e.g., Egbert, 596 U.S. at 491–92.
If a case presents a new Bivens context, courts must consider whether “special factors”—
such as the separation of powers—counsel hesitation against implying a remedy. Id. at
492. If there is “any rational reason (even one) to think that Congress is better suited” to
decide on a remedy, Bivens cannot apply. Id. at 496.
Ajaj’s claim does not fit within an existing Bivens context. Any of several
meaningful differences can signal a new Bivens context. Ziglar v. Abbasi, 582 U.S. 120,
139 (2017). Though Ajaj’s claim arises under the Eighth Amendment, it is distinct from
Carlson: Carlson implied a Bivens remedy for an Eighth Amendment claim of inadequate
medical care, 446 U.S. at 16–18, but Ajaj’s claim is for excessive force. Even a “modest
extension” of an existing context is frowned-upon, Sargent v. Barfield, 87 F.4th 358, 366
(7th Cir. 2023), so Carlson does not give Ajaj the opening he seeks. And, to the extent
that Ajaj argues that his claim is the same type as in Bivens—because they both involve
excessive force—this, too, fails, because Ajaj’s claim invokes the Eighth Amendment,
but the claim in Bivens arose under the Fourth Amendment. Bivens, 403 U.S. at 389.
And special factors counsel against expanding Bivens here. The Bureau of Prisons
has an Administrative Remedy Program, which provides an avenue for federal
prisoners to file complaints about things like excessive force. 28 C.F.R. §§ 542.10–15.
Because Congress has provided for this “alternative remedial structure,” a Bivens
remedy cannot apply. Egbert, 596 U.S. at 493.

-- 3 of 6 --

No. 23-2219 Page 4
II. Claim Two: Failure to Protect and Exhaustion of Administrative Remedies
Ajaj also contends that entry of summary judgment on his claim that prison
officials failed to protect him (Claim 2) was improper because he adequately grieved it.
He says that he filed a grievance on the matter, it was accepted by the prison, and he
was not instructed to file a new grievance naming Roal, Baney, and Parent specifically.
Under the Prison Litigation Reform Act, prisoners must exhaust all available
administrative remedies before they can file a lawsuit about prison conditions. 42 U.S.C.
§ 1997e(a). A prisoner’s grievance must “provide[ ] notice to the prison of the nature of
the wrong for which redress is sought.” Schillinger v. Kiley, 954 F.3d 990, 995 (7th Cir.
2020) (citation omitted).
Ajaj’s grievances did not put the prison on notice of Roal, Baney, and Parent’s
alleged wrongdoing. The relevant grievance detailed Fozzard’s assault but did not
mention the other officials’ failure to protect Ajaj. At the Pavey evidentiary hearing, Ajaj
testified that he had filed hundreds of grievances by the time of the incident with
Fozzard, and that he knew the administrative process. And Ajaj presented no evidence
that his failure to exhaust was excusable (for example, that he was prevented from
following the required processes). See, e.g., Pavey, 544 F.3d at 742. Ajaj has therefore
failed to exhaust his administrative remedies, and summary judgment on this claim was
proper.
III. Claim Five: Deliberate Indifference to Serious Medical Needs and Statute of
Limitations
Ajaj also argues that his claim against prison officials for deliberate indifference
to his serious medical needs was not time-barred because the consequences of their
failure to adequately treat him lasted through 2014 when he filed this lawsuit. Ajaj
alleges that, throughout his time at USP-Marion, Szoke (the clinical director) ignored his
medical conditions and accused him of faking his symptoms. Ajaj contends that he
complained to Szoke’s supervisors about this denial of care to no avail. Ajaj was
transferred to a different prison in May 2012. The district court applied the two-year
statute of limitations for a personal injury tort in Illinois, 735 ILCS § 5/13–202, and
concluded that Ajaj’s October 2014 complaint was filed several months too late. But Ajaj
contends that the limitations period should be extended because the defendants’
deliberate indifference at USP-Marion caused additional medical issues, which were not
diagnosed until 2013 and 2014.

-- 4 of 6 --

No. 23-2219 Page 5
Ajaj’s claims against the officials at USP-Marion began tolling the last time they
refused to treat his medical conditions. See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir.
2001). The defendants here could have committed the alleged actions only while Ajaj
was housed at USP-Marion—between January 2010 and May 2012. Because Ajaj did not
file his lawsuit until October 2014, the two-year limitations period had expired and
summary judgment on this claim was also proper.
IV. Claim Eight: Violations of RFRA and Failure to State a Claim
Finally, Ajaj spends the bulk of his brief on appeal arguing that the district court
should not have dismissed his RFRA claim (Claim 8). He contends that he met the
required pleading standards and that the district court failed to view the facts in the
light most favorable to him.
To state a claim under RFRA, Ajaj must allege that the government substantially
burdened his sincere religious exercise. 42 U.S.C § 2000bb-1(a). A “substantial burden”
arises “when the government puts substantial pressure on an adherent to modify his
behavior and to violate his beliefs.” West v. Radkte, 48 F.4th 836, 845 (7th Cir. 2022)
(cleaned up). To survive the pleading stage, Ajaj need not plead the legal elements of
each claim, Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022), but he must offer
more than just “‘labels or conclusions’ or ‘a formulaic recitation of the elements of a
cause of action.’” Ashscroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Conclusory allegations that do not specify which defendants
were responsible for which allegedly unlawful acts are insufficient. Twombly, 550 U.S. at
555.
The district court correctly concluded that none of Ajaj’s allegations state a claim
under RFRA. Ajaj had the opportunity to file several amended complaints, and for
purposes of filing the operative, fourth-amended complaint, he had the assistance of
counsel. Accordingly, his complaint is not entitled to the leniency afforded to pro se
litigants. Riley v. Elkhard Cmty. Schs., 829 F.3d 886, 890 (7th Cir. 2016). To the extent that
Ajaj’s pro se brief on appeal provides more details of his claim, we examine the
complaint illuminated by his brief. See Chavez v. Ill. State Police, 251 F.3d 612, 648
(7th Cir. 2001).
In the complaint, Ajaj first generally asserted that ten different prison officials
were involved in burdening his practice of Islam by refusing to allow him to participate
in various religious events, “depriving him access to religious property” and “religious
study materials,” denying him an appropriate diet, and failing to modify his medication

-- 5 of 6 --

No. 23-2219 Page 6
schedule while he was fasting for Ramadan. To be sure, Ajaj should remain free to
practice his religion while incarcerated. But the problem here lies in his pleading: These
allegations are vague and conclusory; Ajaj does not, in his complaint or on appeal,
allege any facts specifying what each defendant did, see Cincinnati Life Ins. Co. v. Beyrer,
722 F.3d 939, 947 (7th Cir. 2013), or how they personally participated in any of these
actions, see Iqbal, 556 U.S. at 670.
Next, Ajaj asserted that Fozzard engaged in anti-Muslim harassment and that
Szoke engaged in anti-Muslim animus. But these “labels and conclusions” are not
supported by any factual allegations, so they are not entitled to an assumption of truth.
Id. at 678.
Finally, Ajaj alleged that Neumann and Rivas “wrote incident reports against
[him] for participating in religious practices,” and that Warden Roal took his Qur’an
and prohibited “Arabic-Islamic classes” at the prison. But these bare assertions,
unsupported by any specific facts, are insufficient to state a plausible claim.
See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (explaining that plaintiff
must “provide some specific facts to support the legal claims asserted in the complaint”
(internal quotation marks omitted)).
AFFIRMED

-- 6 of 6 --