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

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Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General Bar No. 011293 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendant Stewart IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Timothy Lee Ward, No. CV03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Karr, et al., Defendants. Defendant Stewart, through undersigned counsel, hereby replies to Plaintiff's response to his motion to dismiss. Defendant Stewart notes that Plaintiff names him only in Count II of his Second Amended Complaint. He makes no allegations of retaliation against Defendant Stewart. As a result, assuming he raises a claim of retaliation, his failure to allege any acts of retaliation by Defendant Stewart requires dismissal. To the extent he claims that in January 2003, Defendant Stewart placed him in "the hole" for six months for allegedly "threaten[ing] to use `SHANK' on SSU supervisor and count movement officer" without benefit of a disciplinary hearing, Plaintiff has not DEFENDANT STEWART'S REPLY TO HIS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 2:03-cv-02159-ROS-JRI

Document 89

Filed 07/03/2007

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explained how he raises an appropriate due process claim, i.e., that he had a protectable
liberty. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987). Ward does not claim that Defendant Stewart's alleged action of moving him to a more secure location implicated any liberty interests. In fact, he notes that movement can be occasioned by at least two conditions: disciplinary actions or behavior that may threaten the safe, secure and orderly operation of the prison. He himself states that he was moved because it was believed he threatened to shank an officer. The fact that he was not disciplined did not preclude

movement. He has failed to indicate a that protectible liberty interest was implicated, let alone infringed upon, precluding review of whether he was entitled to process prior to his movement. See Meachum v. Fano, 427 U.S. 215, 224 (1975). The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment does not create a liberty interest to be free from transfer to a maximum security prison absent a state law or practice conditioning such transfers on substantiated acts of wrongdoing or the occurrence of other events. Id. at

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/// 223-29. Having failed to indicate what liberty interest was at stake, Plaintiff has failed to state a claim of action. See Sandin v. Conner, 515 U.S. 472, 486 (1995) (segregated confinement did not present atypical, significant deprivation in which state might conceivably create a liberty interest.)

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III.

CONCLUSION Based on the reasons set forth above, Defendant Stewart respectfully submits that

Plaintiff's claim (or claims) against him in the Second Amended Complaint should be dismissed in its entirety. RESPECTFULLY SUBMITTED this 3rd day of July, 2007. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendant Original e-filed this 3rdth day of July, 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: Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232-8400 s/ Colleen Jordan Secretary to: Susanna C. Pineda IDS04-0306/RSK:G04-20640 Phx #21927