Free Motion for Summary Judgment - 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. Defendants1, by and through undersigned counsel, respectfully move for Summary Judgment, pursuant to Fed. R. Civ. P. 56(b) and Local Rule 56.1, dismissing this lawsuit in its entirety. The attached Memorandum of Points and Authorities and concurrently filed Statement of Facts supports this pleading. RESPECTFULLY SUBMITTED this 13th day of February, 2006. TERRY GODDARD Attorney General No: CV04-0691-PHX-MHM (LOA) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants
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Dora Schriro, Conrad Luna and Barbara Shearer. Document 33 Filed 02/13/2006 Page 1 of 17

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. FACTS

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff, Sheldon Walker ("Walker"), ADC # 102833, is an inmate in the custody of the Arizona Department of Corrections ("ADC"). (Defendant's Statement of Facts in Support of Motion for Summary Judgment ("SOF") at ¶ 1.) Walker is currently housed in Arizona Sate Prison Complex ("ASPC")-Eyman, Special Management Unit ("SMU") II. (SOF at ¶ 2.)

On April 6, 2004, inmate Walker filed an original Complaint ("Complaint") pursuant to 42 U.S.C. § 1983 ("§ 1983"). (SOF at ¶ 3.) Walker's Complaint alleges that Defendants violated his constitutional rights by: (1) indefinitely confining him in the SMU II as a validated Security Threat Group ("STG") member without meaningful review, in violation of his Fourteenth Amendment due process rights (Count I); (2) subjecting him to unconstitutional conditions of confinement in violation of the Eighth Amendment (Count II); and, (3) retaliating against him for asserting his Fifth Amendment rights, using excessive force, in violation of the Eighth Amendment (Count III). (Id.) Walker seeks prospective injunctive relief and declaratory relief. (Id.) The ADC, by prison policy ("STG Policy"), strives to minimize the threat of prison gangs in the Arizona prison system. (SOF at ¶¶ 4, 7, 8.) The purpose of this policy is to ensure the safe, secure, and efficient operation of the prisons. (Id.) An inmate who is "validated" as a member of an STG is housed in a maximum-security facility--SMU II-- until he chooses to renounce his gang membership and debriefs prison officials or is released from ADC custody. (SOF at ¶¶ 5, 10-17, 59.) If the inmate renounces his STG membership and successfully debriefs prison officials, he is released from the SMU II. (SOF at ¶ 59.) The primary purpose of

debriefing is to obtain information about the specific STG, thereby ensuring the safe and secure operation of the ADC; the purpose is not to gain incriminating evidence against an

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inmate. (SOF at ¶ 60.) Debriefing enables the ADC to better manage the STG population and to determine if the inmate needs protection from other STG members. Id. Walker was validated as a member of the Mau Mau STG on March 10, 1999, and was transferred to the SMU II on June 8, 1999. (SOF at ¶¶ 9, 65, 67-68.) The STG Hearing Committee relied on the following evidence to validate Walker: (1) an address book located in another suspected Mau Mau member's cell, containing Walker's name; (2) an address book located in Walker's cell containing names of suspected Mau Mau members; (3) Mau Mau Bi-Laws found in Walker's cell; (4) letters written by Walker located in another suspected Mau Mau member's cell discussing Mau Mau business matters; and, (5) a Mau Mau membership list located in Walker's cell. (SOF at ¶ 66.) At the time of his validation, Walker had an opportunity to present a defense to the STG Hearing and Validation Committee, and appeal their decision. (SOF at ¶ 69.) Each ADC inmate, including those in the SMU II, receives periodic classification reviews every 180 days. (SOF at ¶¶ 6, 51-57, 61-63.) During this periodic review, the Institutional Classification Committee ("ICC") examines a variety of information. (SOF at ¶ 55.) If the inmate does not renounce his STG membership, however, he maintains a Public Risk Score ("P") of 5 and an Institutional Risk Score ("I") of 5 and is ineligible for score reductions. (SOF at ¶¶ 57, 58.) This policy is necessary because validated STG members are considered an ongoing threat to the safety and order of the prison system. (SOF at ¶ 64.) Consistent with ADC policy, Walker received a classification review every 180 days since his placement in the SMU II. (SOF at ¶ 71.) Absent security concerns, he has had the opportunity to be present at all of his classification hearings and to present evidence to the ICC. (SOF at ¶ 73.) Walker is aware that he can transfer out of the SMU II if he successfully debriefs prison officials. (SOF at ¶ 75.) However, Walker asserts that

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debriefing is incriminating and that he has no information to supply to prison officials. (SOF at ¶ 76.) Like all prisoners housed in the SMU II, Walker has certain privileges and restrictions. At all times pertinent to Walker's suit, he was allowed one hour of outdoor exercise three days a week in a confined outdoor exercise area, which is exposed to fresh air and sunlight through steel mesh that covers the top of the area. (SOF at ¶¶ 40-41.)2 On the days that he exercises, he is also given the opportunity to shower. (SOF at ¶¶ 43, 44.) Walker receives three meals a day during the week and two meals per day on weekends. (SOF at ¶ 45.)
In addition, Walker has weekly visitation and phone privileges. (SOF at ¶¶ 37-39.) Walker can speak to other inmates in his group from cell to cell, but not face to face. (SOF at ¶ 35.) He may also speak to prison staff and counselors. (SOF at ¶ 25.) Validated STG members have limited commissary privileges, allowing for the purchase of hygiene items and limited yearly food purchases. (SOF at ¶ 47-48.) Pursuant to Arizona law, A.R.S. § 31-240, inmates housed in SMU II are not eligible for work, vocational, recreation, or educational programs, but can do limited in-cell programs. (SOF at ¶ 49.) Although unsupported by fact or admissible evidence, Walker asserts that while he remains in SMU II he is subjected to potential future physical, emotional, and/or psychological harm. (SOF at ¶ 3.)

II.

LEGAL ARGUMENT A. Legal Standard for Summary Judgment

A court must construe a pro se litigant's pleadings and papers liberally. See Haines v. Kerner, 404 U.S. 519, 529 (1972); McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir.

However, beginning December 29, 2005, ADC increased the amount of outdoor exercise time to two hours, three days per week for all Level 5 inmates, which includes Walker. Document 33 Filed 02/13/2006 Page 4 of 17

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1992). Nevertheless, a pro se litigant is held to the same legal standard in determining whether summary judgment should be granted. See Haines, 404 U.S. at 529. The Court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "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." Rule 56(c) Fed. R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Jesinger, 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving part." Id.; Jesinger, 24 F.3d at 1130. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). Walker's Complaint fails to establish, as a matter of law, that he was denied due process; or Defendants subjected him to cruel and unusual punishment; or that Defendants retaliated against him for his refusal to renounce his gang membership in the Mau Mau STG. Because Walker cannot establish the threshold requirement that no genuine issue as to any material fact exists, Defendants are entitled to summary judgment as a matter of law.

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B.

Defendants Did Not Violate Walker's Right to Due Process.

Walker asserts his due process rights were violated in that: 1) his periodic review hearings are not meaningful; and, 2) he remains in SMU II confinement with no "just cause." (Dkt. 1, p. 4 at ¶ 3(2).) Walker's position is without merit. Defendants provided the required process due Walker in his review hearings and Defendants have "just cause" to continue his confinement in the SMU II.
1. ADC's Periodic Reviews Affords Walker the Required Due Process.

The Due Process Clause of the Fourteenth Amendment prohibits the states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To determine whether a due process violation has occurred, involves a twostep analysis: (1) whether the inmate possesses a liberty interest with which the State has interfered (Sandin v. Conner, 515 U.S. 472 (1995)); and, (2) whether the interference was accompanied by sufficient procedural and evidentiary safeguards (See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). In Wilkinson v. Austin, 125 S. Ct. 2384, 2394-98 (2005), the Court held that the combined conditions of confinement in Ohio's Supermax facility were sufficiently atypical to give rise to a state-created liberty interest. SMU II conditions are similar to those in Wilkinson, and as such, Walker possesses a liberty interest in his continued confinement within SMU II. However, Walker's continual confinement within SMU II is accompanied by the proper procedural and evidentiary safeguards required. Prior to each annual re-classification review, the inmate receives written notice; has the opportunity to appear at the hearings; can call relevant witnesses; can remain silent; can receive a finalized copy of the ICC's findings; and can appeal any classification errors or overrides to the Administrator for Offender Services Bureau. (SOF at ¶ 70.) Nothing further is required to comport with procedural due process. See generally Wilkinson, 125 S. Ct. 2384 (2005). No "additional evidence or statements" are necessary to justify continued segregated confinement. See Hewitt v. Helms, 459 U.S. 460, 477 n. 9 (1983) ("The decision whether a

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prisoner remains a security risk will be based on facts 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"); see also Madrid v. Gomez, 889 F.Supp. 1146, 1277-79 (N.D. Cal. 1995, mandamus denied, 103 F.3d 828 (9th Cir. 1996), and cert. denied, 520 U.S. 1230 (1997) (rejecting argument that at some point there is no longer "some evidence" to retain an inmate in the SHU, despite the absence of debriefing, where the inmate has not engaged in any prison gang activity and there is no new evidence confirming the inmate's continued association with the prison gang).

The ADC policy comports with the due process required for inmates who are housed in SMU II. When inmates are housed in a more confined environment, prison officials must periodically review the inmate's confinement. Hewitt at 477 n. 9. Toussaaint v.

Segregation may continue for as long as one year without a review.

McCarthy, 801 F.2d, 1080 at 1101 (9th Cir. 1986). While the Ninth Circuit stated that yearly review may be insufficient, the Court did not take a position as to the number or frequency of reviews required. Id. Furthermore, 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 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. The ADC policy provides that STG members are reviewed by the Institutional Classification Committee ("ICC") every 180 days as outlined in DO 801, Inmate Classification. (SOF at ¶ 61.) Walker alleges that he does not consider his reviews "meaningful" because he cannot provide any evidence during the review that would

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change his status and allow for his release from SMU II, other than renouncing. (SOF at ¶¶ 71, 76.) However, Walker does not dispute that he is allowed to be present at the

review hearings and present evidence and/or a statement at the review hearings. (SOF at ¶ 75.) It is also undisputed that Walker may renounce his gang membership with the Mau Mau STG at any time and debrief with prison officials. (Id.)
In addition, when the ADC reviews the inmate's case, the institutional classification staff rates the inmate on each one of the ten factors listed in ADC DO 801.01, 1.1 based on an assessment of the elements listed in section 801.01, 1.2 through 1.11. (SOF at ¶ 61.) Each factor is scored from one to five and listed on the Reclassification Score Sheet "RCSS". (Id.) The classification staff also uses the Correctional Classification Profile (CCP) to determine the most appropriate institutional assignment for each inmate reclassified. (Id.) Thereafter, the ICC and Warden or Deputy Warden review the RCSS and concur or modify the recommended scores, make any necessary corrections, and forward it to the Central Office. (Id.) The ADC policies for periodic reviews comply with the standards as laid out in Hewitt and Toussaint. Inmates confined in SMU II are given a yearly in person meeting with ICC and a midyear classification review for those inmates who have "no change" in their classification scores. Furthermore, multiple staff members evaluate whether a prisoner

remains as a security risk, based on each inmate's particular circumstances. As such, the ADC policy for review hearings is constitutionally sound, "meaningful," and does not violate Walker's due process rights. 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), overruled on other grounds.) The Supreme Court in Hewit observed, "[i]n the volatile atmosphere of a prison an inmate may easily constitute

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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." Hewit, 459 U.S. at 474. The Court went on to say 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, 515 U.S. at 482-483; 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." However, his membership in an STG is a valid and continuing reason for confining him in SMU II. (SOF ¶¶ 72, 74.) Until Walker renounces his Mau Mau STG membership, he will always be a threat to the safe operation of the prison system. Id. As such, Defendants have appropriate justifications to continue to confine Walker in SMU II.

C.

Walker's Claim for Cruel and Unusual Punishment Must Fail.

The Eighth Amendment is not a basis for broad prison reform; it requires neither that prisons be comfortable, nor that prisoners be provided every desirable amenity. Rhodes v. Chapman, 452 U.S. 337 (1981). Although prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, routine discomfort or inconvenience does not constitute a constitutional deprivation under the Eighth Amendment. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state an Eighth Amendment cruel and unusual punishment claim, Walker must establish 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"

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to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The first objective component requires that the Defendants denied Walker "life's basic necessities." Id. at 832. The second subjective component requires that the Defendants knew of and disregarded an excessive risk to Walker's health or safety. Id. at 837. Neither requirement is satisfied in the instant case.

1.

Defendants Do Not Fail the Objective Test.

Walker does not satisfy the first requirement because he cannot establish that he is denied life's basic necessities, i.e., food, clothing, shelter, hygiene, sanitation facilities, or necessary medical attention. Id. at 832. Walker is provided with food, clothing, shelter, hygiene, sanitary facilities and necessary medical attention. (SOF at ¶ 26.) In terms of "life's necessities," Walker, like all inmates in the SMU II, has certain restrictions upon his rights and privileges. (SOF at ¶¶ 34, 37, 39-41, 43, 45, 47, 49.) Contrary to his

allegations, however, the restrictions do not rise to the level of a constitutional violation. The restrictions are the reasonable requirements of running a maximum security facility. (a) Exercise

Walker alleges that he is denied "outdoor recreation," direct sunlight, fresh air and "necessary clothing for exercise and warmth." (Dkt. 1, p. 5) At all times relevant to Walker's Complaint, he was allotted one hour of outdoor exercise time, three times per week. (SOF at ¶ 40.) However, as of December 29, 2005, Walker receives two hours of outdoor exercise time, three days per week. (Id.) The design of the exercise facility allows fresh air and sunlight to enter through a steel mesh top. (SOF at ¶ 41.) Walker states that he exercises one to two times per week and the rest of the time he walks in the area provided. (SOF at ¶ 42.) Defendants are not constitutionally required to provide inmates with any particular type of "recreation" or exercise equipment, such as rowing machines or any other weight training exercise machines. Should Walker need more vigorous exercise he may request the use of a handball. (SOF at ¶ 41.) In addition,

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Walker may purchase "sweats" from the inmate store, should he require more clothing in the outdoor exercise area in the winter-time. (SOF at ¶ 36.) As such, the Defendants provide Walker with the minimal civilized means for exercising his body and therefore summary judgment is appropriate as to the issue of outdoor exercise. (b) Cell Lighting

Walker alleges that he is subjected to "24 hour a day cell lighting." (Dkt. 1, p. 5.) The Eighth Amendment requires that inmates be given adequate lighting. Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1993). In Keenan, large florescent lights were fully illuminated in both the front of and behind Keenan's cell for twenty-four hours every day, so "his cell was `constantly illuminated, and [Keenan] had no way of telling night or day.'" Id. at 1091. He alleged that this lighting policy caused him "`grave sleeping problems' and other mental and psychological problems." Id. The court found that there was "no legitimate penological justification for requiring [inmates] to suffer physical and psychological harm by living in constant illumination." Id. at 1090 (quoting LeMaire v. Maass, 745 F. Supp. 623, 626 (D. Or. 1990), vac'd on other grounds, 12 F.3d 1444). The court therefore held that the Keenan produced sufficient evidence to make his lighting claim a disputed issue. Id. In contrast to the situation in Keenan, Walker's individual cell does not contain 24 hour full illumination and there are not lights in the front of and behind his cell. Rather, ADC officers significantly dim the lights in the SMU II during the night. (SOF at ¶ 18.) In addition, the light used at night is 7 watts, and therefore comparable to a night light. (Id.) Walker cannot prove that the 7 watt bulb which remains illuminated between 11:00 p.m. and 4:00 a.m. prevents him from sleeping or causes him physical injury. Keeping the lights dimly illuminated at night is a reasonable compromise between the legitimate penological concern for security and an inmate's need for adequate and safe shelter. The absence of at least minimal lighting would severely hamper the ADC's ability to maintain

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a safe environment for both staff and inmates.

(SOF at ¶¶ 19-23.)

As such, the

Defendants provide Walker with the minimal civilized means of safety while sleeping and therefore summary judgment is appropriate as to the issue of cell lighting. (c) Food

Walker alleges that he is given a "limited amount of food as punishment." (Dkt. 1, p. 5.) The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health. See Le Maire, v. Maass., 12 F.3d 1444, 1445-46 (9th Cir. 1993). The ADC serves Walker a diet consisting of 2800 calories a day which is consistent with his sedentary life style. (SOF at ¶¶ 45, 46.) Walker receives three meals a day during the week and two larger meals on the weekends. (Id.) While Walker may not routinely purchase food items from the inmate store, he is able to purchase specialty food items during the month of December and has purchased dried beans, tortillas, Christmas cookies and candy in the past. (SOF at ¶¶ 47-48.) Furthermore, Walker is five feet-seven inches tall and weighs 175 pounds, (SOF at ¶ 28) which confirms that he is fed appropriately. Because Walker is not unconstitutionally deprived of food, summary judgment is appropriate as to this issue. (d) Social Interaction

Walker alleges that he is restricted from "all forms of social and environmental stimulation, including talking or interacting with other inmates, family or friends." (Dkt. 1, p. 5.) While housed in the SMU II, Walker has limited communication privileges. (SOF at ¶¶ 34-35, 37, 39.) He is permitted one phone call per week and allowed to send and receive written correspondence. (SOF at ¶¶ 32, 39.) He writes to his mother, children and wife approximately two or three times per week. (SOF at ¶ 32.) Walker is allowed weekly visitation with his family and has regular visits with his wife, children and mother. (SOF at ¶ 37-38.) He is allowed to communicate with other inmates, as well as with the prison staff and

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counselors. (SOF at ¶¶ 24-25, 35.) Because Walker is not barred from these various forms of communication, summary judgment is appropriate as to this issue. (e) Work, Education, Vocational and Recreational Activities

Walker alleges that he is restricted as to vocational and recreational activities, educational and employment opportunities, hobby crafts, and educational books. (Dkt. 1, p. 5A.) While housed in SMU II, Walker is not eligible for work, vocational, recreation, or educational programs, but he can participate in in-cell programs. (SOF ¶ 49.) However, Walker admits that he engages in studying multiple languages, as well as history, and frequently orders books, listens to his walkman radio-cassette player and watches television. (SOF at ¶¶ 31, 33, 50.) "[I]dleness and lack of programs are not Eighth Amendment

violations . . . There is no constitutional right to rehabilitation." See Hoptowit, 682 F.2d at 1254-55; Toussaint v. McCarthy, 801 F.2d, 1080, 1106-07 (9th Cir. 1986). As such, summary judgment should be granted in favor of Defendants as to this issue. 2. Defendants Do Not Fail the Subjective Test.

Walker does not satisfy the second requirement because he can not establish that any Defendant knew of, and disregarded, an "excessive risk" to his health or safety. Knowledge of a mere possibility of potential harm does not satisfy the requisite knowing disregard of an excessive risk required to establish an Eighth Amendment violation. See Farmer, 511 U.S. at 843 (requiring the prison official to have disregarded a substantial risk of serious harm) (emphasis added). Walker cannot establish that any Defendant was aware of an alleged harmful conditions or resulting alleged injury.3 The conditions of Walker's confinement do not subject him to a risk of his health or safety. Pursuant to Walker's Eighth Amendment claim for cruel and unusual punishment, he
While Walker alludes to the Koch line of cases to support his contention that Defendants were on notice as to the negative effects of long term isolation within SMU II (Dkt. 1, p. 5), the Ninth Circuit has vacated the district court's orders in Koch "in their entirety," Koch v. Schriro, 399 F.3d 1099, 1101 (9th Cir. 2005), and as such, Walker's reliance on that line of cases is mistaken as the findings are now legally inapplicable. Document 33 Filed 02/13/2006 Page 13 of 17
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does not state an injury.4 When questioned as to physical injuries, Walker claimed the following: (1) migraines beginning in 1998; (2) a back injury caused by popping his back; and, (3) a knee injury incurred during a fight as a juvenile and caused by wear and tear from playing basketball. (SOF at ¶ 27) Walker admits that he received medical treatment for these medical problems. (Id.)5 Accordingly, the only injury Walker alleges while incarcerated at SMU II is migraine headaches; his complaints of a back injury and ongoing knee injury are not the result of his confinement at SMU II. However, Walker's medical file confirms that he started having headaches before his placement into the SMU II on June 8, 1999. He first began complaining of headaches in April of 1998. (Id.) However, at that time he was housed at ASPC-Kaibab. (SOF at ¶ 2.) Walker was subsequently placed in SMU I July 16, 1998 to March 25, 1999, when he was then transferred to ASPC, Florence, Central Unit. (Id.) Walker remained in the Florence, Central Unit, until his transfer to SMU II on June 8, 1999. (Id.) As such, Walker suffered from migraines over a year before his placement into the SMU II and thus he can not contribute his migraines to confinement there. Walker's allegations do not amount to a denial of the minimal civilized measure of life's necessities. Walker cannot establish an injury or that the Defendants knew of and disregarded any risk to his health or safety. A trier of fact could not conclude--without impermissibly speculating--that the Defendants knew of any risk to Walker while incarcerated in the SMU II. Consequently, Defendants are entitled to summary judgment as to Walker's claim that he suffered cruel and unusual punishment in violation of the Eighth Amendment.

In Walker's retaliation claim (Dkt. 1 p.6, Count III) he alleges that he is "subjected to potential future physical, emotional and/or psychological harm." (Id.) Walker has never requested mental health treatment and as such has not suffered any psychological harm while housed in SMU II. (SOF at ¶ 30.) Walker has also received appropriate dental treatment while housed in SMU II. (SOF at ¶ 29.) Document 33 Filed 02/13/2006 Page 14 of 17
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D. Defendants Are Entitled to Judgment on Walker's Claim for Retaliation.

Walker alleges that Defendants retaliated against him by forcing him to remain in solitary confinement within SMU II in an effort to "encourage Plaintiff to inform on himself and other prisoners." (Dkt. 1, p. 6.) He also alleges that the indefinite confinement is

excessive force used by Defendants for the purpose of attempting to gain information from him. (Id.) 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. 1994). Neither requirement is satisfied here. Walker fails to meet the first requirement because the review hearings do not interfere with his Fifth Amendment right to not incriminate himself. Walker asserts that Defendants confined him in the SMU II in retaliation for his refusal to incriminate himself and others--i.e., renounce his gang membership and debrief in violation of his Fifth Amendment right against self-incrimination. (Dkt. 1, p. 6.) The

debriefing process does not implicate Walker's Fifth Amendment rights. "The Fifth Amendment states that `[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'" Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 189, 2004, citing U.S. v. Hubbell, 530 U.S. 27, 34-38 (2000). Specifically, the Fifth Amendment privilege acts to protect "against disclosures that the witness believes could be used in a criminal prosecution . . . ." Id. Renouncing his gang membership and debriefing prison officials is inapplicable to the privilege against self-incrimination. See United States v.

Gonzales, 897 F.2d 1018, 1020-21 (9th Cir. 1990) (acceptance of responsibility in exchange for sentencing reduction does not violate the Fifth Amendment). It is undisputed that Walker refuses to renounce his Mau Mau gang membership and debrief prison officials. Walker asserts he is not a Mau Mau gang member and therefore has

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no information to supply to prison officials. (SOF at ¶ 76). As such, his assertion that the debriefing process violates his privilege against self-incrimination is nonsensical because he cannot be forced to incriminate himself when he has done nothing wrong. See Marchetti v. United States, 390 U.S. 39 (1968) ("The central privilege for the [Fifth Amendment] privilege's application has been whether the claimant is confronted by substantial and `real,' and not merely trifling or imaginary hazards of incrimination"). Defendants maintain that the ADC only uses information obtained through inmate debriefing for internal security purposes. (SOF at ¶ 60.) As such, Walker's failure to debrief is not an exercise of a Constitutional right and thus is not a basis for a retaliation claim. Walker fails to meet the second requirement because his confinement in SMU II serves a penological interest. Walker can not allege that his placement and continued confinement in the SMU II advances "no legitimate penological interest." Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997), cert denied, 542 U.S. 936 (1998). To the contrary, his confinement in the SMU II "bear[s] a self-evident connection to the State's interest in maintaining prison security and preventing future crimes." See Overton v. Bazzetta, 539 U.S. 126, 133 (2003). ADC's goal in continuing to confine Walker in SMU II is to minimize his gang activity and role within the Mau Mau STG, not to "punish" or force him to "inform" on himself. Thus, his segregation in the SMU II serves legitimate penological interests of the ADC. In addition, internal security is promoted by segregating all validated gang members from other gang members and the general prison population. Courts have concluded that the interests of prison officials in segregating gang members through a STG-type program in order to improve prison security and inmate safety are compelling interests. In re Long Term Administrative Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir.) cert. denied, 528 U.S. 874 (1999). Walker was placed in the SMU II because of his STG validation. It is gang membership, not the failure to renounce that membership, which results in the SMU II confinement under the ADC Policy. His continued confinement in the SMU II

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serves the legitimate penological goals of security, safety, and deterrence. Because no genuine issue of material fact exists as to the retaliation claim, Defendants are entitled to summary judgment as a matter of law. CONCLUSION For the above-stated reasons, the Court should grant Defendants' Motion for Summary Judgment and dismiss Walker's Complaint against the Defendants in their entirety.

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

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

Original e-filed this 13th day of February, 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/Catherine M. Bohland Catherine M. Bohland IDS04-0455/RSK:G #946678

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