Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

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Terry Goddard Attorney General Susanna C. Pineda, (011293) Assistant Attorney General 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 LORENZO CRUZ FALCO, No: CV03-1940-PHX-EHC (JI) Plaintiff, v. CHARLES RYAN, CONRAD LUNA, BARBARA SHEARER, Defendants. s Defendants Dora Schriro, Conrad Luna,1 and Barbara Shearer, by and through undersigned counsel, hereby submits this Motion to Dismiss Plaintiff's Complaint because Plaintiff's remaining claim is now moot. Plaintiff's Complaint sought injunctive relief in the form of removal from SMU II. In addition to having previously been mooted by the increase in the amount of outdoor recreation provided, his requests are now moot because Plaintiff was released from the custody of the Arizona Department of Corrections. He is no longer in ADC custody, let alone, housed in SMU II. Plaintiff's Complaint should Director Dora Schriro and Carson McWilliams substitute for Defendants in their official capacity.
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MOTION TO DISMISS COUNT II AS MOOT

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therefore be dismissed in its entirety. Memorandum of Points and Authorities.

This Motion is supported by the attached

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On October 3, 2003, Plaintiff filed a three-count Complaint alleging that Defendants violated his due process and Eighth Amendment rights, by implementing particular policies at the Arizona Department of Corrections ("ADC")2. (Dkt. 1) All counts were subsequently determined to state a claim and answers required. (Dkt. 4, 17), to wit: Plaintiff's continual confinement in the Special Management Unit ("SMU") II without meaningful reviews violated his right to due process (Count I); the conditions of confinement in SMU II violated his Eighth Amendment right to be free from cruel and unusual punishment (Count II); and, Defendants' retaliated against Plaintiff in violation of his Eighth Amendment right to be free from excessive use of force (Count III). (Id.) Both parties filed dispositive motions. (Dkt. 51, 53.) On February 14, 2006, this Court denied Plaintiff's motion for summary judgment and granted Defendants' crossmotion for summary judgment in part, and denied it in part, dismissing Counts I and III in their entirety and a significant portion of Count II. (Dkt. 67.) This Court left one limited claim under Count II: Whether ADC's limitation on outdoor exercise to three hours per week constitutes cruel and unusual punishment? (Id.) Plaintiff has solely requested declaratory judgment and injunction relief but no monetary damages.
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On March 1, 2006, Defendants moved to dismiss this remaining claim as moot given ADC's increase of the amount of outdoor exercise provided Plaintiff. (Dkt. 68.) Specifically, ADC increased outdoor exercise from three (3) to six (6) hours per week. Plaintiff has not responded to this motion and the motion is still pending. Plaintiff has subsequently been released from custody to serve his term of community supervision. His term community supervision will expire on December 1, 2006. Specifically, he was released from custody on May 2, 2006. (See Attached AIMS) His sentence will expire on December 22, 2006. (Id.) Having been released from custody, Plaintiff is no longer housed in SMU II and is no longer subjected to the conditions of confinement complained of in his complaint, particularly his remaining claim that he is denied sufficient outdoor exercise. On June 22, 2006, the Clerk of this Court noted that mail issued by this Court to the Plaintiff was returned with notation that Plaintiff was no longer in custody. (Dkt. #s 72). To date, Plaintiff has not submitted a response to Defendants' first Motion to Dismiss as Moot his remaining claim or a Notice of Change of Address indicating that he is no longer incarcerated or his current whereabouts. (See Clerk's Dkt.) II. LEGAL ARGUMENT The Plaintiff's Complaint is Moot and Should Therefore Be Dismissed. The federal courts are courts of limited jurisdiction; their powers circumscribed by the terms of Article III of the Constitution, which states that they may hear only "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. At the core of the case-or-controversy

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requirement lies the principle that the dispute before the court must be real and live at all times, not feigned, academic, or conjectural. Russman v. Board of Educ. of Enlarged City School Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). The requisite dispute must persist throughout the litigation. To sustain the court's jurisdiction, it is not enough that a dispute was alive when suit was filed, the parties must continue to have a personal stake in the outcome of the lawsuit. Lewis v. Continental Bank Corp., 494 U.S. 472, 47778 (1990). When a case is moot, the federal court lacks subject matter jurisdiction and the matter must be dismissed. Fox v. Bd. of Trustees, 42 F.3d 135, 140 (2d Cir. 1994); Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001). "The question of mootness is ... one which a federal court must resolve before it assumes jurisdiction." North Carolina v. Rice, 404 U.S. 244, 246 (1971). "Any decision on the merits of a moot case or issue would be an impermissible advisory opinion." Fla. Ass'n of Rehab. Facilities v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000). This Court is obligated to consider whether this action is moot. The exceptions to the mootness doctrine are narrow, and apply only in exceptional situations. Al Najjar, 273 F.3d at 1336 (quoting Dow Jones & Co. v. Kaye, 256 F.3d 1251, 1256 (11th Cir.2001)). In County of Los Angeles, the Supreme Court articulated a two-part test for mootness: Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. 440 U.S. at 631.

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In the present case, Plaintiff filed suit seeking removal from SMU II and change in the process to be removed from that facility, and his classification. At the time he did so, Plaintiff, a validated Security Threat Group member, was incarcerated in SMU II and subject to the rules and regulations governing that particular prison facility. His release from prison has mooted all claims and the relief he sought. Because his claims are moot, this court has no jurisdiction over the matter. To accept jurisdiction would result in this Court providing an impermissible advisory opinion. Fla. Ass'n of Rehab. Facilities v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d at 1217. III. CONCLUSION Based on the reasons set forth above, Defendants respectfully submits that Plaintiff's Complaint be dismissed as moot. RESPECTFULLY SUBMITTED this 26th day of June, 2006. Terry Goddard Attorney General

s\ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original and Copy filed this 26th day of June, 2004 to: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, Arizona 85003-2118 Copy mailed this same day to last known address of:

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s\ Colleen Jordan Secretary to: Susanna C. Pineda IDS04-0016/NON-RM #966775 Lorenzo Falco, ADC # 131725 ASPC ­ Eyman ­ SMU II P.O. Box 3400 Florence, Arizona 85232

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