Free Motion for Leave to File - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Michael E. Gottfried, Bar No. 010623 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ALBERT DELEON, No. CV 04-0446 PHX JAT (JRI) Plaintiff, v. DORA SCHRIRO; et al., Defendants. Defendants, by undersigned counsel, hereby move for leave to file a summary judgment motion in this matter and to continue the trial for a short time to have this summary judgment motion heard. A jury trial in scheduled in this matter for December 11, 2007. The undersigned has been working on the joint pretrial statement, proposed jury instructions and proposed voir dire when it became evident that there are no material factual issues to be tried here and this matter could be decided as questions of law only. Although undersigned counsel is aware of the Court's recent orders reaffirming this trial date, given the time and expense necessary to conduct a jury trial, it would seem in the best interests of all involved to have MOTION FOR LEAVE TO FILE SUMMARY JUDGMENT AND TO CONTINUE TRIAL

Case 2:04-cv-00446-JAT

Document 264

Filed 11/19/2007

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a short delay to attempt to resolve this matter on paper. It should also be noted that the undersigned has spoken with the Plaintiff and he has no objection to continuing the trial Plaintiff has two claims here: that excessive force was used against him by applying handcuffs too tightly and by forcing him to crawl up a flight of stairs when he was allegedly incapable of walking up stairs as retaliation for his alleged participation in a conspiracy to assault a female correctional officer. However, even if his factual allegations are taken as true, which Defendants vehemently deny, Plaintiff has absolutely no evidence of any injury caused by these alleged incidents and no evidence of any type of retaliation. Plaintiff's first claim of excessive force is based solely upon the allegation that Defendant Reyna applied handcuffs on his wrist too tightly. Handcuffing too tightly, without more, does not amount to excessive force. See Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir.2005); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001). Moreover, admissible medical evidence establishing some injury is required to satisfy the injury requirement of an excessive force claim based on the application of handcuffs. See Tarver 410 F.3d at 752 (citing, approvingly, Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir.2003)); Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir.1997).. The alleged force here does not meet the standard for an Eighth Amendment claim of excessive force. There is no evidence that Plaintiff sustained any injury whatsoever as a result of having the cuffs applied, or that they were, in fact, applied tightly. There are no medical records, or requests for medical treatment, indicating any bruising or problems 2
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with his wrists. Plaintiff cannot show any injury whatsoever connected to his claim that he was subjected to excessive use of force.
Similarly, this absence of injury would preclude any claim to the extent Plaintiff alleges that being forced to crawl up stairs is an Eighth Amendment claim of excessive force. Although Plaintiff alleged in this second claim that he suffered a heart attack as a result of the alleged actions by the Defendants, the Court has precluded this claim. As Plaintiff was unable to show any connection between the alleged actions of the Defendants and his later heart attack. While Plaintiff sought medical attention that day for chest pains (there turned out to be no medical evidence of a heart attack), there are no complaints listed, nor indications of, any injury to his wrist, legs or knees. Thus, he is left solely to claim that he suffered "emotional distress" during these alleged incidents. Claims of emotional distress, without a physical injury that is more than de minimis, are precluded under §1983. As a result, Plaintiff will be unable to make the requisite "prior showing of physical injury" to support his claim for emotional-distress damages. 42 U.S.C. § 1997e(e); see also Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002) (alleged back and leg pain from sitting and sleeping on the benches and floor, injuries from assault by other inmate and painful canker sore for which plaintiff got medical treatment were insufficient to meet PLRA physical injury standard). Accordingly, because there is no evidence of any physical injuries, Plaintiff has no claim for Eight Amendment excessive force in either of the remaining counts of his complaint1.

Pursuant to Oliver v. Keller, 289 F.3d 623, 630 (9th Cir.2002), a prisoner with an Eighth Amendment claim can arguably proceed with only a de minimis physical injury, so long as the officers, with culpable intent, exerted more than de minimis physical force and the prisoner seeks other than emotional distress damages. However, as a matter of law, no 3
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There is also no evidence to support Plaintiff's claim of retaliation. To state a claim

for retaliation, Petitioner must show that Defendants acted in retaliation for the exercise of a constitutionally-protected right and the action advanced no legitimate penological interest. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Plaintiff's mere allegation of retaliatory motives is insufficient to state a claim. Id. He bears the burden of presenting facts sufficiently linking the exercise of a constitutional right and any alleged retaliation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Plaintiff must also allege more than his personal belief that he is the victim of retaliation. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). In general, allegations that merely represent conclusions of law are insufficient in pleading a complaint. See Ivey v. Bd. Of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.") "To maintain a claim of retaliation for the exercise of constitutional rights, the prisoner bears the burden of proving that the action would not have been taken but for the exercise of such rights." Jones v. Coughlin, 696 F.Supp. 916, 920 (S.D.N.Y. 1988). (emphasis in original) Only if the plaintiff provides sufficiently probative evidence does the burden shift to the defendant to establish that the challenged actions would have been taken even in the absence of the protected activity. Jones, at 920-21. A prisoner must allege more than his personal belief that he is the victim of retaliation--he must produce direct evidence of motivation or allege a chronology of events from which retaliation may plausibly be inferred. Hines v. Graham, 320 F.Supp.2d 511, 521 (N.D.Tex. 2004). "This physical injury (rather than de minimis physical injury) must necessarily mean that there was not more than de mimimis force exerted. 4
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places a significant burden on the [prisoner]." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995). At the outset it is unclear what constitutional right Plaintiff was exercising that he claims he was retaliated against for asserting. He only alleges that he was retaliated against for his alleged participation in a conspiracy to assault a female correctional officer. Such claim does not appear to implicate any constitutional right. Further, Plaintiff has no evidence, other than his own allegations, of any retaliatory motive. There are no allegations that anything was said by any of the Defendants

indicating that this was their motive and the Defendants have stated that they knew nothing of this situation. As the Court previously found, Plaintiff's orthopedic shoes and his cane had been properly confiscated before he climbed the stairs. (Dkt. 218 at 6.) It was for this reason he had to "crawl" up the stairs, not because of any retaliation. Defendants believe that this is a matter that can be decided on summary judgment. Plaintiff does not object to the trial being continued. Wherefore, it is respectfully

requested that Defendants be given leave to file a summary judgment motion and the trial scheduled for December 11, 2007 be continued until the motion can be resolved. RESPECTFULLY SUBMITTED this 19th day of November, 2007. TERRY GODDARD Attorney General

s/Michael E. Gottfried Michael E. Gottfried Assistant Attorney General Attorneys for Defendants 5
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Original e-filed this 19th day of November, 2007, 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: Albert DeLeon, #P269470 Maricopa County Jail 3250 West Lower Buckeye Road Phoenix, AZ 85009

s/ Colleen S. Jordan Legal Secretary to: Michael E. Gottfried IDS04-0271/RSK:G03-03830 #92090

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