Free Reply to Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General State Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sheldon Walker, Plaintiff, v. Dora Schriro, et al., Defendants.

No: CV04-0691-PHX-MHM (LOA) DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (DKT. 33)

Defendants1, through undersigned counsel, submit their Reply in support of their Motion for Summary Judgment. (Dkt. 33.) The pleadings and supporting documents, viewed in the light most favorable to Plaintiff, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. This Reply is supported by the attached Memorandum of Points and Authorities.

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Dora Schriro, Conrad Luna and Barbara Shearer. Document 57 Filed 05/16/2006 Page 1 of 9

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RESPECTFULLY SUBMITTED this 16th day of May, 2006. TERRY GODDARD Attorney General

s/ Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES

8 I. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 INTRODUCTION For Sheldon Walker ("Walker") to survive Defendants' Motion for Summary

Judgment, he must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995). Walker's Response to Defendants' Motion for Summary Judgment ("Response") (Dkt. 43) fails to demonstrate that there is a triable factual issue. Walker has not presented admissible evidence that he suffered a violation of a constitutional right or that any Defendant was responsible for such violation. Based on the facts and arguments contained in their Motion for Summary Judgment (Dkt. 33), Statement of Facts in Support of that motion (Dkt. 34) and their Response to Walker's Motion for Summary Judgment (Dkt. 38), Defendants are entitled to judgment as a matter of law. II. LEGAL ARGUMENT A. Defendants Are Entitled to Judgment on Walker's Due Process Claim.

Walker argues that he is denied due process because he is continually confined in SMU II without "meaningful periodic reviews." (Dkt. 43, p. 3.) There is no dispute as to Walker's continued confinement in SMU II and the periodic reviews he receives as a result. (Dkt. 43, pp. 3-4, Dkt. 34 at ¶¶ 70-72.) Walker was transferred to SMU II on June

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8, 1999, after his initial validation on May 7, 1999. (Dkt. 34 at ¶¶ 67, 68.)2 Walker admits that since his placement in SMU II, he has received review hearings, either in person, or type 89 (i.e. "paperless") reviews. (Dkt. 43, pp. 3-4.) Thus, the only legal question before the court is whether the reviews afforded Walker, while he remains confined in SMU II, violates his right to due process. Walker contends that the periodic reviews are not "meaningful." (Dkt. 43, p. 3.) He argues that the reviews are not based on his misconduct, but rather based on his status as a Security Threat Group ("STG") member and that he is being punished for that status. (Id., pp. 4-7.) Walker is incorrect for several reasons. First, Walker misstates the law. While Hewitt held that the defendants satisfied the Due Process requirements for continued confinement of plaintiff ["Helms"] based on the fact that he "had the opportunity to have [his] version reported as part of the record," it did not define a "meaningful review" as one that "reviews for any act of misconduct," as quoted by Walker.3 Hewitt v. Helms, 459 U.S. 460, 477 (1983). While Helms was being investigated for an act of misconduct, the purpose of periodic reviews is not to investigate misconduct. Id. Rather, Hewitt stands for the proposition that an inmate has the right to receive periodic reviews if he is subjected to indefinite and stricter confinement. Id. As stated in Defendants' Motion for Summary Judgment, once an inmate is placed in segregated confinement, no additional evidence or statements are necessary to justify the continued confinement. Id. at 477 n.9. In addition, Walker's continued confinement is not a punishment for his status as an STG member, but rather a result of his failure to debrief. (Dkt. 34 ¶¶ 16, 74, 76.) The purpose of the STG policy is to minimize the threat posed by inmate gang or gang-like
As noted by Walker, he is not challenging his initial validation, even though he alleges that the validation was erroneous. (Dkt. 43, p. 3.) Walker incorrectly cites Wilkinson v. Austin¸189 F.Supp.2d 719, 741 (N.D. Ohio 2002), to support his premise. While the lower Wilkinson court cited to Hewitt agreeing that such similarly situated inmates must receive "periodic reviews," the lower court in Wilkinson did not define "meaningful." Document 57 Filed 05/16/2006 Page 3 of 9
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activity to the safe, secure, and efficient operations of the Arizona prison system. (Dkt. 34 ¶ 7.) While, Walker may not like the Arizona Department of Corrections' ("ADC") stance regarding gang members within its prison, his placement in SMU II is not punishment and Walker is free to renounce his gang membership and debrief at any time. (Dkt. 34 ¶ 75.) The periodic reviews afforded Walker complied with the procedures set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, (1979) (requiring that inmates being considered for release on parole have the opportunity to be heard and notice of any adverse decision) and Hewitt (requiring that inmates being considered for transfer to administrative segregation receive some notice of charges and an opportunity to be heard) Hewitt at 460. Walker fails to establish that the reviews are inadequate or constitutionally insufficient. Because there is no genuine issue of triable fact with respect to any aspect of Walker's procedural due process claim, Defendants are entitled to judgment as a matter of law. B. Defendants Are Entitled to Judgment on Walker's Claim for Cruel and Unusual Punishment.

Walker does not provide adequate evidence to establish an Eighth Amendment cruel and unusual punishment claim. To avoid summary judgment, Walker must establish a genuine issue of fact evidencing that Defendants' "act(s) or omission(s) ...result(ed) in `the denial of the minimal civilized measure of life's necessities'" and that the Defendants were "deliberately indifferent" to his health or safety. Framer v. Brennan, 511 U.S. 825, 834 (1994). Walker cannot satisfy either component of the Eighth Amendment Analysis. 1. Objective Component

While Walker argues that the conditions of his confinement offend the Eighth Amendment, each of his asserted deficient conditions must independently result in an Eighth Amendment violation. Courts have historically disfavored "combining" conditions in order to find an Eighth Amendment violation, unless those conditions are intertwined, such as exposure to cold temperatures and lack of winter clothing. See generally Rhodes v. Chapman, 452 U.S. 337, 348 (1981); see also Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th
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Cir. 1982) (stating "Courts may not find Eighth Amendment violations based on the `totality of conditions' at a prison.") A number of conditions, each of which satisfies Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. Hoptowit at 1247. There is no dispute that Walker experiences restrictions while housed in SMU II. (Dkt. 43, pp. 10-15, Dkt. 34 ¶¶ 18-49.) While limitations on outdoor exercise, visitation, phone calls, communication, diet, loss of commissary privileges, and twenty-four hour cell illumination, are the conditions of Walker's confinement, no condition standing on its own rises to the level of an Eighth Amendment violation. Nor are these specific conditions so closely related as to justify cumulative status. Walker's living conditions are necessarily restrictive, however the restrictions do not inflict pain, much less unnecessary and wanton pain, to satisfy the Eighth Amendment requirements. a. Exercise

Walker's ability to exercise is restricted. Walker is afforded six (6) hours a week for outdoor exercise. (Dkt. 43, p. 11, Dkt. 34 ¶ 40.) As such, Walker is afforded a constitutionally sufficient amount of exercise. See Spain v. Procunier, 600 F.2d 189, 199200 (N.D. Cal. 1976) (five hours of recreation time per week was constitutionally sufficient); French v. Owens, 777 F.2d 1250, 1255-56 (7th Cir. 1985); Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980). Walker's exercise takes place in an over-sized cell, with the roof open to the elements, which is located contiguous to his pod. (Dkt. 43, p. 11.) Sunlight enters into the cell, but it may not always shine directly on the bottom pavement. (Id., p. 12.) While Walker may not like the conditions of his outdoor exercise, it is undisputed that his exercise takes place outdoors, as the outdoor cell is subject to the elements, (i.e. fresh air, sun light, rain, temperature, etc...). He also can engage in meaningful exercise by using a handball or walking. (Dkt. 34 ¶¶ 41-42.) Although restrictive, these conditions do not however rise to the level of an Eighth Amendment violation. See Hosna v. Groose, 80 F.

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3d 298, 306 (8th Cir. 1996), cert denied, 519 U.S. 860 (1996) ("Requiring an inmate to exercise in an enclosed area is not itself a per se violation of the Eighth Amendment . . ."). Walker also argues that now that he has six (6) hours of outside exercise, he does not have access to a restroom during this time and can only bring out one bottle of water. (Dkt. 43, p. 11.) While these restrictions may cause Walker to be uncomfortable, they do not rise to the level of a constitutional violation. See Wishon v. Gammon, 978 F.2d 446, 446-49 (8th Cir. 1992) (restrictions on exercise do not offend the Eighth Amendment absent proof of muscle atrophy or a threat to the inmate's health). Walker further contends that he is deprived of direct sunlight which can lead to a deprivation of vitamin D and to a subsequent "immune suppression and gastrointestinal problems." (Dkt. 43, p. 12.) Walker however, provides no foundation or authentication for this statement. As such, he fails to establish that the deprivation of sun light causes or will likely cause an injury in the future. Defendants are therefore entitled to judgment as a matter of law as to the exercise issue. b. Lighting

Walker claims that he is subjected to physical and mental harm because of the constant "brightly lit" cell. (Dkt. 35, p. 11.) Defendants rely on their arguments in their Motion for Summary Judgment (Dkt. 33) and Response to Walker's Motion for Summary Judgment (Dkt. 38). The light used for night lighting at SMU II consists of a covered seven (7) watt bulb that is illuminated from 11:00 p.m. to 4:30 a.m. (Dkt. 34 at ¶ 18.) Walker cannot establish that his alleged injuries of fatigue, migraine headaches, or difficulty concentrating either exist or are caused by exposure to a seven (7) watt bulb for five and one-half hours a day. Nor can he show that he is likely to suffer injury in the future from the exposure to the seven (7) watt bulb. As such, Defendants are entitled to judgment as a matter of law as to the lighting issue. c. Solitary Confinement

Under the omnibus term of "solitary confinement," Walker argues that a combination of his sedentary lifestyle, windowless cell, limits on phone use, conditions of
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visitation, low calorie diet, lack of commissary privileges, mail inspection, lack of cleaning supplies, infrequent showers, and limited communications with counselors amounts to cruel and unusual punishment. Again, Walker attempts to combine multiple conditions of confinement which do not individually rise to an Eighth Amendment violation. See Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir. 1982) (stating "Courts may not find Eighth Amendment violations based on the `totality of conditions' at a prison.") It is undisputed that Walker resides in restrictive conditions however, no individual condition arises to the level of an Eighth Amendment violation. In addition, Walker fails to identify any facts or admissible evidence that he has suffered or will likely suffer any injury from these conditions. Finally, Walker argues that the effects of prolonged solitary confinement can cause psychological decompensation "to the point that individuals may become incompetent." (Dkt. 43, p. 13.) However, Walker fails to provide proper foundation or authentication for the admissibility of that statement, which should therefore by disregarded by the Court. Because there are no genuine issues of material fact as to Walker's conditions of confinement, Defendants are entitled to judgment as a matter of law. 2. Subjective Component Walker also fails to establish the second requirement of a cruel and unusual punishment claim. He fails to make the requisite showing as to Defendants' state-of-mind, i.e. that they were deliberately indifferent to a substantial risk of serious harm to him. Because Walker was never subjected to a risk of serious harm, his claim must fail. As such, Defendants are entitled to judgment as a matter of law. C. Defendants Are Entitled to Judgment on Walker's Claim for Retaliation. Walker fails to establish a claim for retaliation because he has not shown that the

Defendants' actions were retaliatory for the exercise of a constitutionally-protected right and that the actions advanced no legitimate penological interest. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1995). He argues that the debriefing process is his only

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means of release from SMU II and that the process implicates his Fifth Amendment privilege against self-incrimination. Walker is incorrect. Both parties agree that Walker has not debriefed. (Dkt. 43, p. 9; Dkt. 34 ¶ 76.) However, renouncing and debriefing is not the only option available to Walker for his release from SMU II. Defendants have implemented a revised Departmental Order

("DO") 806, effective March 15, 2006. The new policy enables validated STG members to secure their release from SMU II through a Step-Down program. (See Dkt. 46.) Walker claims that to date the program has not been put into practice and that it does not "guarantee" his release. Undersigned counsel is advised by ADC officials that the first set of inmates will start the Step-Down program at the end of May, 2006. While there is no "guarantee" of Walker's release from SMU II, whether by debriefing or the Step-Down Program, the reasons that Walker remains in SMU II is not for retaliatory purposes. See discussion supra. Walker fails to establish that the debriefing process implicates a constitutional right. He argues that the Fifth Amendment privilege against self-incrimination applies, however that "privilege applies [only] when a defendant is compelled to be a witness against himself in his own criminal prosecution or when he is called on to testify in any type of proceeding to answer questions which might serve to incriminate him in any future prosecution." United States v. Segal, 549 F.2d 1293, 1999 (9th Cir. 1977) (citing

Lefkowitz v. Turely, 414 U.S. 70, 77 (1973)). Because the debriefing process does not implicate a constitutional right, Walker's retaliation claim must fail and Defendants are entitled to judgment as a matter of law. CONCLUSION For the above-stated reasons, the Court should grant Defendants' Motion for Summary Judgment and enter judgment for Defendants.

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RESPECTFULLY SUBMITTED this 16th day of May, 2006. TERRY GODDARD Attorney General

s/ Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

Original e-filed this 16th day of May, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Sheldon Walker, #102833 ASPC-Eyman-SMUII Post Office Box 3400 Florence AZ 85232 s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS04-0455/RSK:G #960042

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