Free 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' RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. 35)

Defendants1, through undersigned counsel, submit their Response to Plaintiff's Motion for Summary Judgment. (Dkt. 35.) The pleadings and supporting documents establish that Plaintiff fails to present relevant argument or admissible evidence to establish that he is entitled to any relief from this Court. Defendants, therefore, request the Court deny his motion and grant Defendants' previously filed Motion for Summary Judgment. (Dkt. 33.) This Response is supported by the attached Memorandum of Points and Authorities.

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Dora Schriro, Conrad Luna and Barbara Shearer. Document 38 Filed 03/13/2006 Page 1 of 14

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RESPECTFULLY SUBMITTED this 13th day of March, 2006. TERRY GODDARD Attorney General

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

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION

On April 6, 2004, Sheldon Walker ("Walker") filed his Complaint. (Dkt. 1.) In his Complaint, Walker alleges violations of his constitutional rights as follows: (1) a

Fourteenth Amendment due process violation based on his indefinite placement in the Special Management Unit ("SMU") II, without "meaningful reviews" (Count I); (2) an Eighth Amendment violation for cruel and unusual punishment based on the conditions of confinement in SMU II (Count II); and, (3) An Eighth Amendment violation for using excessive use of force based on retaliation by Defendants, for his assertion of his Fifth Amendment right (Count III). (Dkt. 1.) II. ARGUMENT

Summary judgment is appropriate only if the moving party shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden is on the moving party to point out the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). To support his case, Walker relies solely on inapplicable case law and inadmissible evidence. He presents no evidence in his Motion for Summary Judgment (Dkt. 35) or in his supporting Statement of Facts (Dkt. 36) to establish that he is entitled to judgment as a

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matter of law. Because there is no genuine issue of material fact, Defendants are entitled to a judgment as a matter of law and request the Court grant their motion. (Dkt 33.) A. Walker Fails to State a Due Process Claim.

While Walker alleges that Defendants "erroneously validated [him] as a member of the Security Threat Group ("STG") Mau Mau," and claims not to be a member (Dkt. 35, p. 4), he acknowledges that he is not contesting the process employed by the Arizona Department of Corrections ("ADC") to validate him as a STG member, or his initial placement into SMU II. Id. Therefore, Walker's due process issue is limited to the post validation periodic classification reviews provided by the ADC. (Dkt. 1, p. 4, at ¶¶ 3(2), 3(3); Dkt. 35, p. 4.) Specifically, Walker claims his due process rights are violated in that: 1) his periodic reviews are not meaningful; and, 2) he remains in SMU II confinement with no "just cause." (Dkt. 1, p. 4 at ¶ 3(2).) As set forth in Defendants' Motion for Summary Judgment (Dkt. 33) and infra, Defendants provide Walker with a constitutionally adequate process of review and Defendants continue to have "just cause" to confine Walker in SMU II. A(1) Walker's Periodic Reviews Afford Him With the Required Due Process. ADC policy comports with the due process required for inmates who are housed in SMU II. Walker received sufficient procedural and evidentiary safeguards prior to his placement in SMU II. See generally Wilkinson v. Austin, 125 S. Ct. 2384 (2005); see also Dkt. 35, p. 4. When inmates are housed in a more confined environment, prison officials must periodically review the inmate's confinement. Hewitt v. Helms, 459 U.S. 460, at 477 n. 9 (1983). Segregation may continue for as long as one year without a review. Toussaint v. McCarthy, 801 F.2d, 1080 at 1101 (9th Cir. 1986). Because Walker's initial placement in SMU II complied with the Wilkinson Court's standard, no additional evidence or statements are necessary to justify continued segregated confinement. Hewitt at 477, n.9. Rather, the "decision whether a prisoner remains a security risk will be based on facts

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relating to a particular prisoner ­ which will have been ascertained when determining to confine the inmate to administrative segregation ­ and on the officials' general knowledge of prison conditions and tensions, which are singularly unsuited for `proof' in any highly structured manner." Id. Walker argues that he is not given a "meaningful" review because he meets with the Institutional Classification Committee ("ICC") only once a year, rather than twice a year, and that he is indefinitely confined without just cause. See Dkt. 35, p. 5. He further argues that he is deprived of his right to be heard by the Director every six months and his right to appeal. Id. Walker also claims his reviews do not comport with the requirements outlined in Wilkinson. Id. Walker is incorrect. Walker receives an annual "in person" review with the ICC and a "paper" review for his mid-year review. See Dkt. 34 at ¶ 71.2 Whether he meets with the ICC once a year rather than twice a year does not violate his due process rights. See Toussaint, 801 F.2d at 1101. Walker implies that ADC violated its own policy because his reviews are not "in person" reviews with the ICC every 180 days. Walker's position is without merit because, in this case, failure to follow prison policies is not relevant to this lawsuit. Official written polices "are not relevant to prove an essential element" of a civil rights claim where the plaintiffs "do not assert that policies . . . were the moving force behind a constitutional violation." Marti v. City of Maplewood, 57 F.3d 680, 684 (8th Cir. 1995) (Failure to police to follow city's policies did not support an arrestee's civil rights claim; see Kraushaar v. Flanigan, 45 F. 3d 1040, 1047-48 (7th Cir. 1995) (Illinois strip search statute did not create a constitutionally protected liberty interest); Doe v. Burnham, 6 F.3d 476, 480 (7th Cir. 1993). In Burnham, the court emphasizes that "the violation of state law is not itself
Effective October 25, 2005, the ADC implemented a new DO 801. See Defendants' Objections to Plaintiff's Statement of Facts, Attachment 3. The new DO 801 affords inmates in maximum custody a review 60 and 180 days after their initial placement into maximum custody and a yearly review thereafter. See Attachment 3, 801.06 at ¶ 1.3.
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the violation of the Constitution." Burnham at 480. In this case, the Defendants did not violate ADC policy3, as they provided Walker with reviews as defined in policy, and consistent with all constitutional requirements. Walker received sufficient due process to continue his confinement in SMU II. He received: notices which informed him of upcoming ICC classification hearings; the

opportunity to appear at the hearing; the opportunity to call relevant witnesses; the opportunity to remain silent; a finalized copy of the ICC's findings; and, the opportunity to appeal classification errors or overrides to the Administrator for Offender Services Bureau. See Dkt. 34 at ¶ 70. These procedures comply with the standards as laid out in Hewitt and Toussaint, regardless of whether the hearings occur annually or bi-annually. As such, while Walker may not appreciate the fact that he does not get to meet with the ICC in person twice a year, the ADC policy for reviews is constitutionally sound, "meaningful," and does not violate his due process rights.4

Department policy DO 806.07 at ¶1.1.8 provides that STG members are reviewed by the ICC every 180 days as outlined in DO 801, Inmate Classification. See Dkt. 34, Exhibit A, Attachment 1. For inmates who provide no change to their status, the review is conducted by paper. See Defendants' Objections to Plaintiff's Statement of Facts, Attachment 2, ADC Classification Operating Manual (p. 56, lines 37-46), "Remain Present Status (RPS) Reviews." ADC policy does not require that an inmate argue his case directly ("face-to-face") with the ICC. Rather, ADC policy states that the inmate does not have a right to meet in person more than once a year with the ICC. See Defendants' Objections to Plaintiff's Statement of Facts, Attachment 2, ADC Classification Operating Manual (p. 56, lines 47-52), "Interim Classification Reviews/RPS Midyear Classification Reviews." These procedures comport with the ADC DO 801.04 Reclassification Process at ¶ 1.2. See Dkt. 34, Exhibit C, Attachment 1. Defendants also continue to rely on their due process arguments made in their Motion for Summary Judgment. See Dkt. 33. The Reclassification reviews afforded to Walker meet all the requirements as set out in Wilkinson, Hewitt and Toussaint and nothing further is required by ADC to comport with the procedural due process of the reclassification hearings. See generally Wilkinson, Hewitt and Toussaint, supra; see also Dkt. 33.
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A(2) Defendants Have Just Cause to Continue Walker's Confinement in SMU II. Future predictions of misconduct are valid considerations and have been upheld by the Supreme Court. Shoats v. Horn, 213 F.3d 140, 146 (3rd Cir. 2000) (citing Hewitt v. Helms, 459 U.S. 460, 474 (1983)) The Supreme Court in Hewitt observed, "[i]n the volatile atmosphere of a prison an inmate may easily constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. Hewitt, 459 U.S. at 474. The Court went on to state that the "judgment of prison officials in this context, like that of those making parole decisions, turns largely on purely subjective evaluations and on predictions of future behavior; indeed the administrators must predict not just one inmate's future actions, as in parole, but those of an entire institution." Id. The Supreme Court has repeatedly stated that "...federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment." Sandin v. Conner, 515 U.S. 472, 482-483 (1995); Wolff v. McDonnell, 418 U.S. 539, 561-563 (1974); Jones v. N.C. Prisoners' Lab. Union, Inc., 433 U.S. 119, 125 (1977). Walker alleges that he remains in SMU II confinement without "just cause." See Dkt. 1, p. 4, at ¶¶ 3(2), However, his membership in the Mau Mau STG is a valid and continuing reason for confining him in SMU II. Until Walker renounces his STG

membership or ceases active participation and avails himself to the step-down process, he will always be a threat to the safe operation of the prison system. As such, Defendants have appropriate justifications to continue to confine Walker in SMU II. A(3) The Director is Not Required to Review Walker's STG Classification. Walker argues that the Director is required to review his classification every six months pursuant to A.R.S. 41 § 1604.09 (G) and (I). (Dkt. 35.) Walker misstates the law

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by confusing the issue of reclassification review based on his STG membership and classification review to determine parole eligibility as outlined in A.R.S. 41 § 1604.09. Each inmate in the ADC is classified pursuant to the parole eligibility system established by the Director. A.R.S. 41 § 1604.09(A). The classification referred to in A.R.S. 41 § 1604.09 is solely for the purposes of parole and does not refer to re-classification based on an inmate's validation as a STG member. See generally A.R.S. 41 § 1604.09. Because Walker's parole eligibility classification is not at issue in his lawsuit it is irrelevant and the Court should therefore disregard it. As such, the Director is not required to participate in Walker's reclassification hearings. See generally A.R.S. 41 § 1604.09; see also Dkt. 34, Exhibit C, Attachment 1, DO 801.05 at ¶ 1.3 et. seq. A(4) Walker has the right to appeal yearly. Walker correctly states that the actual hearing occurs at central classification and an inmate can only appeal the final decision of central classification. However, he incorrectly assumes that he is denied appeal opportunities. ADC policy only allows one appeal opportunity for classification appeals. See Dkt. 34, Exhibit C, Attachment 1, DO 801.08 at ¶ 1.1.1. DO 801.08 reads in relevant part: CLASSIFICATION APPEALS 1.1 Appeals: 1.1.1 The inmate shall have one appeal opportunity and may only appeal the final decision by the Central Classification Office. The inmate may not appeal recommendations. DO 801.08 at ¶ 1.1.1. As such, while Walker only meets with the ICC once a year; his ability to appeal is not diminished when he does not meet with them twice a year. A(5) Walker has a right to make a statement at midyear reviews. Walker also claims that since he is not present for each 180 day review that he is not able to make a statement on his behalf. Again, Walker misstates the evidence. Walker admits that he is given the opportunity to make a statement at his reviews. See

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Defendants' Objection to Plaintiff's Statement of Facts at ¶ 18, Attachment 3; Dkt. 34 at ¶¶ 71, 75. By Walker's own admission, he states: "I would give them a verbal response, and they would write down whatever I said." Defendants' Objection at ¶ 18, Attachment 3 (p. 26, lines 20-21). As such, Walker's "paper" reviews afforded him the opportunity and right to make a statement.
Walker also alleges that his review hearings are not "meaningful" because he cannot provide any evidence during the review that would change his status and allow for his release from SMU II, other than renouncing.5 See Dkt. 34 at ¶¶ 71, 76. He claims that he is not

allowed to make a statement because the Defendants will not "entertain" any statement other than a "request to debrief and renounce." Id. While Walker may not like the fact that he is required to renounce in order to leave SMU II custody, he cannot deny that he is given the opportunity to make a statement and that statement is documented for him.6 There are no disputed genuine issues of material fact regarding Walker's reclassification reviews. Defendants afford Walker all the due process protections required and he remains in SMU II for justifiable reasons, and therefore the Court should grant Defendants' Motion for Summary Judgment as to Count I. B. Walker Fails to Establish That the Defendants Violated His Eighth Amendment Right to be Free of Cruel and Unusual Punishment. To state an Eighth Amendment cruel and unusual punishment claim, Walker must establish that the Defendants' "act(s) or omission(s)...result(ed) in `the denial of the
While up to the present time, renouncing was the only available option for a validated STG member to transfer out of SMU II, effective March 15, 2006, validated STG members may participate in a "step-down" program. Departmental Order ("DO") 806.08 specifically addresses the "step-down" provisions and requirements for release from SMU II housing. See Defendants' Objections to Plaintiff's Statement of Facts, Attachment 1. Walker claims that he is continually confined within SMU II despite the fact that he is free of major disciplinary violations or recent minor disciplinary violations. If this is the case, Walker can request participation in the step-down program which will go into effect on March 15, 2006. A group of ten inmates will start the program every 90 days. A minimum of two inmates shall be on stand-by in the event one of the primary ten inmates is unable to start the program for any reason. See Defendants' Objections to Plaintiff's Statement of Facts, Attachment 1, DO 806.09 at ¶ 1.2.1.
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minimal civilized measure of life's necessities'" and that the Defendants were "deliberately indifferent" to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Walker fails to satisfy the initial objective component because he offers no evidence that Defendants have denied him the "minimal civilized measure of life's necessities." Walker also fails to satisfy the subjective component of the Eighth

Amendment analysis because he offers no evidence that Defendants knew of, and disregarded, an "excessive risk" to his health or safety. Defendants rely on their Motion for Summary Judgment in regards to Walker's failure to meet the objective and subjective components of the Eighth Amendment analysis. (Dkt. 33.) Walker is provided with food, clothing, shelter, hygiene, sanitary facilities and necessary medical attention. See Dkt. 34 at ¶¶ 26, 27, 36, 43-48. In addition, Walker provides no evidence that he suffered an injury, or will suffer a future injury, caused by the conditions of confinement and that the Defendants were aware that he suffered, or will suffer such injury in the future. B(1) Exercise Walker states that he is provided with two hours of outdoor exercise, three days a week. See Dkt. 35, p. 11. However, he claims that he is not allowed to use the restroom during that two hour period, that he receives no direct sunlight or no sunlight at all, and that he is deprived of the daily vitamin D requirements. Id. These circumstances do not rise to the level of a denial of the basic life necessities. Walker admits that if he requests to use the restroom during the period of outdoor exercise, that he is afforded the opportunity, though he may not return to the outdoor exercise pen. Id. The top of the outdoor exercise area is open to fresh air and sunlight and as such he is not deprived of sunlight or the ability to be exposed to the outside elements. See Dkt. 34 at ¶ 41.

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B(2) Lighting Walker claims that he is subjected to physical and mental harm because of the constant "brightly lit" cell. See Dkt. 35, p. 11. Defendants rely on their arguments in their Motion for Summary Judgment. (Dkt. 33.) The light used for night lighting at SMU II consists of a covered 7 (seven) watt bulb that is illuminated from 11:00 p.m. to 4:30 a.m. See Dkt. 34 at ¶ 18. Walker cannot establish that he has an injury of fatigue, migraine headaches, or difficulty concentrating and he cannot establish a connection between a 7 watt bulb and those injuries. B(3) Solitary Confinement Under Unconstitutional Conditions Walker further claims that he is subjected to "degrading and invasive strip searches, nearly total social isolation, denial of contact visitation, limited phone privileges, lack of intellectual stimulation and a myriad of other minor deprivations" which in combination rise to an Eighth Amendment violation. See Dkt. 35, p. 12. Defendants again rely on their Motion for Summary Judgment which directly addresses Walker's allegations concerning social interaction, visitation, phone privileges, and educational opportunities while housed in SMU II. See Dkt. 33, p.12-13. Walker argues that these conditions, "in conjunction" with the exercise, sunlight, Vitamin D and lighting issues, "can lead to psychosis." Dkt. 35, p. 12. Walker's argument fails for several reasons. First, Walker cannot establish a connection between a myriad of unrelated restrictions and an undiagnosed mental health disorder of psychosis. Secondly, from Walker's own admissions, he is provided the opportunity to visit with his wife, mother and children; regularly phones his family members; corresponds with them via the mail; studies various languages; and is allowed contact with inmates and prison staff. See Dkt. 34 at ¶¶ 25, 32, 34, 37-39, 50. Under contemporary standards, providing visitation, phone calls, mail correspondence, educational opportunities, and outdoor exercise does not rise to the level of cruel and unusual punishment. See Rhodes v. Chapman, 452 U.S. 337,

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348 (1981) (stating that "conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.") Lastly, 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 at 347; see also Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th 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. Thus, each of Walker's alleged deficient conditions must result in an Eighth Amendment violation on its own. While limited educational opportunities, visitations, phone contact, socialization, and outdoor exercise, as well as constant cell lighting and strip searches 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. Further, while Walker's educational opportunities, visitations, phone contacts, and socialization are necessarily restricted, these restrictions do not inflict pain, much less unnecessary and wanton pain. In addition, Walker relies on Koch v. Lewis and multiple inadmissible documents to support his claims. Walker is incorrect in relying upon any of the rulings or findings in the Koch cases. On March 2, 2005, the Ninth Circuit vacated the entire Koch line of cases in Koch v. Schriro, 399 F.3d 1099, 1100-01 (9th Cir. 2005). Although the Koch case

involved an STG inmate, the district court's findings in that matter are now legally inapplicable. As such, any references to Koch in Walker's motions should be disregarded. Finally, Walker's reliance on depositions used in the Koch litigation, should be disregarded. See Dkt. 35, Plaintiff's Exhibits I, J, K; see also Rule 901, Fed. R. Evid.

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First, the depositions lack proper authentication, lack reporter certification, and violate the Rule of Completeness. See Rule 30(f)(1), Fed. R. Evid. (requiring that depositions be certified by the reporter); Rule 106 Fed. R. Evid. Advisory Committee's Note (the purpose of Rule 106 is to avoid the "misleading impression created by taking matters out of context"); see generally Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002). There are no disputed genuine issues of material fact regarding Walker's conditions of confinement. Because Walker fails to provide any evidence or legal argument to support his Eighth Amendment claim concerning cruel and unusual punishment, the Court should grant Defendants' Motion for Judgment as to Count II. C. Walker Fails to Establish That the Defendants Retaliated Against Him Because of His Failure to Engage in Debriefing. Walker alleges that Defendants retaliated against him by continually confining him within SMU II, because of his failure to engage in the debriefing process. He claims that the debriefing process invokes his Fifth Amendment privilege against self-incrimination because he refused to renounce his gang membership. Walker claims that he is not a member of a gang, that no such gang as the Mau Mau group exists, and that ADC certified the Mau Mau as an STG in order to fix a racial imbalance created by DO 806. See Dkt. 35, pp. 14-15. Walker's allegations are incredulous and baseless. In order to state a claim for retaliation, Walker must show that Defendants acted in retaliation for the exercise of a constitutionally-protected right and that the action advanced no legitimate penological interest. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1995). Walker cannot meet the first requirement because the debriefing process does not implicate Walker's Fifth Amendment privilege against self-incrimination. Defendants again rely on their argument made in the Motion for Summary Judgment. (Dkt. 33.) Walker was afforded the opportunity to receive more lenient treatment from prison officials in exchange for information concerning his gang affiliation and gang activity in

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prison. See Dkt. 34, Exhibit A, Attachment 1. The purpose of debriefing is not to obtain incriminating criminal information or evidence against an STG inmate. Id. at 806.06 at ¶ 1.1. Moreover, Walker's argument is nonsensical because if he is not a member of the Mau Mau STG and the Mau Mau STG does not exist, then he could not possibly incriminate himself. Lastly, Walker cannot establish that housing validated STG gang members in SMU II does not serve a penological interest. ADC's goal is to provide a safe and secure prison system to inmates, employees and the public. With that goal in mind, validated members are a continual threat to the safe and orderly operation of the prison system. It is undisputed that Walker has not debriefed prison officials and that he remains in SMU II custody based on his validation as a STG member. Because no issue of material fact exists, and Walker fails to provide a legal argument supporting his claim for retaliation, the Court should grant Defendants' Motion for Summary Judgment as to County III. III. CONCLUSION

Walker fails to provide any admissible evidence or cognizant legal argument supporting his motion for summary judgment. As such, Walker is not entitled to summary judgment and the Court should deny his motion and grant Defendants previously filed Motion for Summary Judgment. (Dkt. 33.) RESPECTFULLY SUBMITTED this 13th day of March, 2006. TERRY GODDARD Attorney General

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

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Original e-filed this 13th day of March, 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:

6 7 8 9 s/A. Palumbo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Legal Secretary to Catherine M. Bohland IDS04-0455/RSK:G
#950421 v-2

Sheldon Walker, #102833 ASPC-Eyman-SMUII Post Office Box 3400 Florence AZ 85232

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