                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 17, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
AHMED MOHAMMAD AJAJ,

             Plaintiff-Appellant,

v.                                                        No. 13-1010
                                              (D.C. No. 1:08-CV-02006-RBJ-MJW)
FEDERAL BUREAU OF PRISONS;                                 (D. Colo.)
THE UNITED STATES OF AMERICA;
TOMAS GOMEZ; RON WILEY;
MELVIN DUNLAP; MICHAEL
MERRILL; KEITH POWLEY; JON
VIGLE; D. KRIST; DAVID ALLRED;
WENDY HEIM; CARL MESTAS;
BARBARA BATULIS; BRAD CINK;
R. MACK; STEVEN NAFZIGER; SARA
REVELL; “FNU” JONES; DAN ROY;
RICK MARTINEZ; B. CUNNING;
“FNU” SPROUL; FNU OLMSTEAD;
B. JANUS,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Ahmed Mohammed Ajaj, a prisoner in the custody of the Federal Bureau of

Prisons (BOP) proceeding pro se, appeals from the district court’s orders granting

Tomas Gomez’s motion for summary judgment and the other defendants’ motions to

dismiss his claims under Federal Rule of Civil Procedure 12(b)(1) and (6).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      In his third amended complaint, Mr. Ajaj sued the United States, BOP, and

numerous current and former BOP employees, including Mr. Gomez, asserting ten

claims, many with subdivisions, under numerous constitutional, statutory, regulatory,

and treaty provisions: (1) religious discrimination; (2) inhumane conditions of

confinement; (3) unjust convictions for disciplinary violations; (4) improper handling

of mail; (5) denial of meaningful visits with family and friends in person and by

video; (6) restrictions on making telephone calls concerning legal matters;

(7) restrictions on access to and receipt of books and other publications;

(8) maintaining inaccurate information in prison records; (9) denial of and

interference with medical treatment for several conditions; and (10) medical

malpractice in violation of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b).

      All defendants, but the United States, moved to dismiss these claims under

Rule 12(b)(1) and (6). In its forty-page March 10, 2011, order, the district court

dismissed under Rule 12(b)(6) claims 1, 2, most of 3, 4, 5, 6, 7, 8, and 9 and

dismissed all defendants except the United States, the BOP, and Mr. Gomez. The


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court concluded that Mr. Ajaj failed to state cognizable claims for relief primarily

because his pleadings were conclusory and he failed to allege personal participation

by the individual defendants. But the court declined to dismiss two claims, deciding

that (1) Mr. Ajaj had adequately pled a declaratory relief claim against the BOP

under the Administrative Procedures Act (APA) for his allegations that his

disciplinary convictions based on Carl Mestas’ and Mr. Gomez’s disciplinary notices

were arbitrary and capricious; and (2) he had adequately pled a First Amendment

retaliation claim against Mr. Gomez for issuance of a disciplinary notice based on

Mr. Ajaj’s participation in a hunger strike. Also, the court determined that another

opportunity to amend the complaint was unwarranted because Mr. Ajaj was on notice

that he needed to allege facts showing each defendants’ personal participation in their

alleged improper conduct yet he failed to do so in his three complaint amendments,

the request to amend was due to undue delay by Mr. Ajaj, and further delay would

prejudice the individual defendants. On December 6, 2011, the court rejected

Mr. Ajaj’s motion for reconsideration, finding that he did not present newly

discovered evidence and there was no manifest error of law.

      In an amended order filed March 27, 2012, the court granted the United States’

and the BOP’s motion to dismiss the claims remaining against them, part of claim 3

and claim 10, under Rule 12(b)(1).1 The court held that (1) because claim 3 objected

to the reduction of Mr. Ajaj’s good time credits and the place of his imprisonment, it
1
      The court dismissed claim 10 without prejudice.


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was barred by 18 U.S.C. § 3625; and (2) because Mr. Ajaj did not administratively

exhaust his FTCA claim, the court lacked jurisdiction to hear claim 10. In that same

order, the court granted Mr. Gomez’s unopposed motion for summary judgment on

the First Amendment retaliation claim, determining it was barred by the statute of

limitations. In a text entry entered on the docket on November 13, 2012, the court

denied Mr. Ajaj’s motion to reconsider.

      Mr. Ajaj asserts many arguments on appeal: (1) his claim against Mr. Gomez

was timely because the statute of limitations did not begin to run until he received a

final agency decision; (2) the district court erred in dismissing his claims against the

United States because (a) he should have been allowed to amend his complaint to

include FTCA claims that were administratively exhausted; (b) his second amended

complaint was a new action under the FTCA, the government did not oppose the

filing of the second amended complaint adding the FTCA claims, and the government

therefore waived any right to argue that he failed to exhaust administrative remedies;

(c) the FTCA claims were timely and the government never argued that they were

untimely when it moved to dismiss; (d) the court did not address his argument that

the FTCA claims were timely under the continuing threat and continuing violation

doctrines; (e) the court did not consider his undisputed evidence concerning the

existence and cause of his injury; (f) the court did not consider that his deliberate

indifference claims were also FTCA claims; and (g) the court did not review his

declaratory and documentary evidence showing that he exhausted his claims; (3) the


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court erred in dismissing the unlawful-discipline claims against the BOP because

(a) the BOP did not move to dismiss the declaratory and injunctive-relief claims

under Rule 12(b)(6); (b) the court incorrectly decided he requested only declaratory

and injunctive relief under the APA when he also requested relief under other

theories; and (c) the court erred in granting the BOP’s successive motion to dismiss;

(4) the court failed to rule on (a) his ninth claim, a medical claim against the BOP for

declaratory and injunctive relief under various theories; (b) his first claim, a religious

claim for declaratory and injunctive relief under various theories; (c) his third claim

against Mr. Mestas, concerning Mr. Ajaj’s discipline for failing to perform tasks that

were inconsistent with and aggravating to his medical condition; (d) his third claim

asserting that he was subject to disciplinary penalties disproportionate to his alleged

offense of failing to perform a cell rotation task; (e) his third claim for retaliatory

discipline; (f) his second claim for subjecting him to sub-human prison conditions;

(g) his second claim for denial of equal protection and harsher treatment and

deprivation because he is Arab and Muslim; (h) his fourth claim for various mail

violations; (i) his claims concerning visitation, use of the telephone, and publications;

and (j) his requests to correct false information and to put important medical

information into the record; (5) the court gave no notice that it would dismiss claims

1, 2, most of 3, 4, 6, 7, and 9 under Rule 12(b)(6) after the BOP only moved to

dismiss under Rule 12(b)(1); (6) the claims defendants failed to move to dismiss and

the court failed to rule on should be remanded; (7) the court erred in dismissing


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claims for his failure to allege sufficient facts to support the claims because the court

(a) should have recognized the legal sufficiency of his complaint under Rule

12(b)(6); (b) confused what must be pleaded with what must be proven; (c) failed to

recognize that the court must consider relevant factual allegations contained in all

court documents when reviewing the sufficiency of the pro se complaint and failed to

rule on his motions for judicial notice; (d) failed to recognize that the notice pleading

standard is still in effect; (e) ignored Tenth Circuit law holding that the need for

factual allegations depends on the context of the case or claim; (f) failed to review

the plausibility of his pro se complaint in its entirety and instead looked at a few

allegations in isolation; and (g) failed to recognize that defendants did not dispute

that he had exhausted all claims and therefore defendants had sufficient notice of his

claims; (8) the court erred in concluding that his assertion that a non-medical staff

member deliberately defied a medical order did not state an Eighth Amendment

claim; and (9) the court failed to assume that all of his pro se allegations were true.

      We review de novo the district court’s dismissal of claims for failure to state a

claim under Rule 12(b)(6). See Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.

2010). In doing so, we “evaluate whether the complaint contains enough facts to

state a claim to relief that is plausible on its face. We accept as true all well-pleaded

factual allegations . . . and view these allegations in the light most favorable to the

plaintiff.” Id. (citation omitted) (internal quotation marks omitted). We also review

the court’s summary judgment decision de novo. Jones v. Okla. City Pub. Sch.,


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617 F.3d 1273, 1277 (10th Cir. 2010). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We examine the

factual record and reasonable inferences therefrom in the light most favorable to”

Mr. Ajaj. Jones, 617 F.3d at 1277 (internal quotation marks omitted). Like our

review of decisions under summary judgment and Rule 12(b)(6), we also review

questions of subject-matter jurisdiction under Rule 12(b)(1) de novo. Robinson v.

Union Pac. R.R., 245 F.3d 1188, 1191 (10th Cir. 2001).

         In reviewing de novo, we liberally construe Mr. Ajaj’s pro se filings. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). But we will not assume the

role of advocate for him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Rather, we require him to follow the same rules of procedure governing counseled

litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005).

         After applying these standards and carefully reviewing the briefs, record, and

relevant law, we see no reversible error in the district court’s orders.2 Accordingly,

the judgment of the district court is affirmed. We deny as unnecessary Mr. Ajaj’s

motion for judicial notice of district court documents included in the record. Cf.

United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice


2
      Nor do we discern merit to any claim Mr. Ajaj asserts the district court did not
address.


                                           -7-
of district court record that was not part of record on appeal). We also deny as

unnecessary Mr. Ajaj’s motions for judicial notice of various court decisions. And

we deny his motion for appointment of counsel. But we grant his motion for leave to

proceed on appeal in forma pauperis. We remind Mr. Ajaj of his duty to continue

making payments until the filing fee is paid in full.


                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




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