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Tenth Circuit OKs First Raising Qualified Immunity on SJ

The Tenth Circuit Court of Appeals held that prison officials did not waive a qualified immunity defense by failing to raise it in responsive pleadings, and the district court erred in failing to address the defense in the summary judgment context.

Colorado prisoner Said Ahmad is "an 'adherent to the Sunni branch of Islam.'" He brought suit, challenging a prison "policy of refusing to allow prisoners to congregate for prayer outside their assigned cells without prior approval."

Ahmad filed a pro se complaint and two subsequent amended complaints, alleging several federal constitutional claims. Defendants asserted a qualified immunity defense in their answer to Ahmad's Third Amended Complaint.

Ahmad retained counsel, who filed a Fourth Amended Complaint alleging for the first time a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Defendants filed an amended answer setting out various affirmative defenses to the RLUIPA claim, but did not assert qualified immunity on that claim. They did, however, reassert the qualified immunity defense alleged in their initial answer concerning the constitutional claims.

Defendants moved for summary judgment, in which they asserted qualified immunity but did not address any specific claims. "Ahmad's responsive brief, however, specifically argues that Appellants are not entitled to qualified immunity on the RLUIPA claim." Ahmad did not argue that Defendants waived the defense or that he was prejudiced by the late assertion of the defense.

The district court held that Defendants were entitled to qualified immunity on the constitutional claims. It denied the qualified immunity defense on the RLUIPA claim, however, noting that Defendants had failed to raise the defense with respect to RLUIPA.

The Tenth Circuit noted Defendants' amended answer and summary judgment motion were "both ambiguous with respect to whether they are raising a qualified immunity defense to the RLUIPA claim." The court concluded, however, that "a less rigid approach is required" than the district court's conclusion "that the failure to plead the defense barred its consideration by the court." Rather, it held "as a matter of law that the defense was adequately presented to the court and should have been decided."

The court explained that had Ahmad failed to respond to the defense, "the district court could have properly determined that it would be unfair to him to decide the issue." But Ahmad did respond, and failed to allege prejudice, and thus the Tenth Circuit reversed the district court's ruling. See: Ahmad v. Furlong, 435 F.3d 1196 (10th Cir. 2006).

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Related legal case

Ahmad v. Furlong