Free Motion to Dismiss Counts/Claims - 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 Carr IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Timothy Lee Ward, No. CV03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Carr, et al., Defendants. Defendant Carr, through undersigned counsel, moves to dismiss Count I of Plaintiff's Second Amended Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. This motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM AND POINTS OF AUTHORITY I. FACTUAL BACKGROUND Plaintiff Timothy Ward is a convicted felon in the custody of the Arizona Department of Corrections. On May 23, 2007, this Court permitted Ward permission to DEFENDANT CARR'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

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

Document 88

Filed 06/26/2007

Page 1 of 8

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file his Second Amended Complaint in which he seeks "damages" in the amount of $100,000.00 and "nominal damages" of $10,000.00 from Defendant Carr for alleged retaliation/due process violations. In Count I of his Second Amended Complaint, he alleges that Defendant Carr fired him from his prison job in October of 2002 and moved him to a different housing unit to prevent the development of an "unauthorized relationship," presumably a homosexual relationship. (Dkt. 72, at 3.) He claims that when he expressed his concern to Sgt. Carr about the "treatment of gays" at newly assigned housing unit, she responded by giving him the following option, "move or goto (sic) the hole." He alleges that he moved to Building 3 and was subsequently placed in the complex detention unit. He indicates that he was later told by unidentified staff that he was placed in the detention unit because he had made "threats to staff." He alleges that he was housed there without benefit of a disciplinary hearing in violation of his right to due process. Plaintiff alleges that he grieved these claims in March of 2003, and that he appealed to then Acting ADC Director Charles Ryan. (See Dkt. 72, at 3A.) Plaintiff's only identifiable claim of injury and damages are that he allegedly suffered extreme depression and mental anguish due to Sgt. Carr's alleged "harassment and defamation of person." (Id. at 3.) For the following reasons, this Court to must dismiss Count I and Defendant Carr from this action.1

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Defendant Stewart, named solely in Count II, has also moved to dismiss this action against him. (Dkt. 73.) That motion is still pending. 2
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II.

LEGAL ARGUMENT A. Failure to State Any Claim--No Physical Injury.

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To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must demonstrate that the defendant deprived him of a right secured by the Constitution or laws of the United States and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mutual Ins. Co v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985 (1999). In addition, a § 1983 plaintiff must show injury and an affirmative link between the alleged injury and the conduct of the individual defendant. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (affirmative link between defendant's act and plaintiff's injury required to sustain § 1983 action).

The Prison Litigation Reform Act ("PLRA") of 1996, effectively codified the Supreme Court's ruling in Farmer v. Brennan, 511 U.S. 825, 834 (1994), that nominal damages are not appropriate in an Eighth Amendment context and that the standard is actual physical injury. 42 U.S.C. § 1997e (e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."); see Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (dismissal of claim alleging emotional distress from transfer to higher custody prison is proper under 42 U.S.C. § 1997e(e) which requires prior showing of physical injury, when amending the complaint would not cure deficiency). The injury alleged must be more than de minimus. Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ("we hold today that for all claims to which it applies, 42 U.S.C. §

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1997e(e) requires a prior showing of physical injury that need not be significant but must be more than de minimis").
In his Second Amended Complaint, Plaintiff appears to complain of the conditions of his confinement--in the hole--but he makes no claim of any physical injury. As such, any claim pertaining to the conditions of his confinement, if any, must be dismissed. Plaintiff has failed to make the requisite "prior showing of physical injury" to support his claim for 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). Because Plaintiff does not allege or provide evidence of physical injury, his Complaint must be dismissed. Jackson

v. Carey, 353 F.3d at 758. Plaintiff seeks monetary damages when he has completely failed to allege an essential element of his claim necessarily rendering all other facts immaterial. 42 U.S.C. § 1997e (e); Farmer, 511 U.S. at 834. The Constitution of the United States does
not mandate a tort damage remedy for every claimed constitutional violation. Harris v. Garner, 190 F.3d 1279, 1289 n.11 (11th Cir. 1999) (Section 1983 damages remedy is not constitutionally required, but statutorily provided. Congress may limit constitutional

tort/monetary damages to those inmates who show more than de minimis injury to prevent frivolous suits; limiting relief to declaratory and injunctive within congressional power.) Therefore, the Defendants request the Court dismiss Plaintiff's monetary damages claim.

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B.

Failure to State Any Claim--Due Process.

Plaintiff appears to allege that he had a right to due process before being moved to the complex detention unit. He claims that although he was told that he was placed there for allegedly making threats to staff, he was never subjected to any disciplinary actions and thus,

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C. such transfers on substantiated acts of wrongdoing or the occurrence of other events. Id. at 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.) Unit. 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 he rights were violated. (Dkt. 72, Second Amended Complaint at 3.) This blanket claim fails to state an appropriate due process claim. The threshold inquiry in this type of due process analysis is whether the plaintiff has shown entitlement to a protected liberty interest. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). The complaint contains no allegation that any liberty interest was implicated by his placement in the Complex Detention

Failure to State Any Claim--Retaliation.

Finally, a review of Plaintiff's Second Amended Complaint reveals that Plaintiff has failed to state a claim of retaliation. To state a retaliation claim under 42 U.S.C. § 1983, the

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Plaintiff must show that prison officials retaliated against him for exercising a constitutional right and that the retaliatory action did not advance legitimate penological goals, such as preserving institutional order and discipline. Barnett v. Centoni, 31 F.3d 813, 815-816 (9th

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Pratt, 65 F.3d at 806. Here, Plaintiff's allegation that he was fired and moved to another unit in retaliation is insufficient to raise a § 1983 claim. His complaint fails to state what chronology of events from which retaliation may be plausibly inferred; must demonstrate that "but for" some constitutionally protected activity, a defendant would not have taken actions that he did. Id., see also Cain v. Lane, 857 F.2d 1139, 1143 (7th Cir. 1988). Additionally, in light of Sandin v. Connor, 515 U.S. 472 (1995), the court must apply a more deferential attitude towards decisions by prison officials must be applied in evaluating retaliation claims. the she would have reached the same decision even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287. Plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains. Id.; see also Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). In § 1983 cases, mere allegations of retaliation are insufficient. Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985). Inmates must allege a Cir. 1994); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Plaintiff also has the initial burden to show that the protected conduct was a "substantial" or "motivating" factor in Defendant's decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). If Plaintiff makes this prima facie showing, then the burden will shift to the Defendant to establish that

constitutional right he allegedly exercised that resulted in the alleged act of retaliation. In fact, a review of Plaintiff's Second Amended Complaint makes no claim that he exercised any

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constitutional right. At most, in his Second Amended Complaint, Plaintiff only alleges that Defendant Carr fired him from his prison job and told him to move to another housing unit in order to prevent the development of an unauthorized relationship. Having failed to state what

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right he exercised that resulted in the alleged act of retaliation, his Count I, and Defendant Carr must be dismissed. Assuming that Plaintiff's Second Amended Complaint was sufficient to raise the claim initially, he himself indicated that the movement was made for legitimate penological reasons--to prevent an unauthorized relationship from developing. Obviously, given the facts contained in his Second Amended Complaint, Plaintiff failed to plead the absence of legitimate correctional goals for the conduct of which he complains. Having failed to do so, he has failed to state a claim.

III.

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

Plaintiff's claims against her in the Second Amended Complaint should be dismissed in there entirety. RESPECTFULLY SUBMITTED this 26th day of June, 2007. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendant

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Original e-filed this 26th day of June, 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:

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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 #1016372