Free Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Firm Bar No. 14000 Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

LORENZO CRUZ FALCO, Plaintiff, v. CHARLES RYAN, CONRAD LUNA, BARBARA SHEARER, Defendants.

No: CV03-1940-PHX-EHC (JI) MOTION TO DISMISS COUNT II AS MOOT

Defendants1, by and through undersigned counsel, hereby move to dismiss Plaintiff's request for injunctive relief related to outdoor exercise (Count II) as moot based on a change in Arizona Department of Corrections exercise policy for level five inmates. I. PROCEDURAL HISTORY 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

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Director Dora Schriro and Carson McWilliams substitute for Defendants in their official capacity.

Plaintiff has solely requested declaratory judgment and injunction relief but no monetary damages.
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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?3 (Id.) II. RELEVANT FACTS Every inmate has a Public and Institutional ("P/I") risk score ranging from one to five. All inmates with a P/I score of 5/5 are placed in level 5 units. Plaintiff is housed in SMU II, a level 5 unit. At the time of the filing of his Complaint, inmates with a P/I score of 5/5 and housed in level 5 units were afforded three hours of outdoor exercise time per week. In mid 2005, at the request of the Director, ADC officials began an extensive study regarding the feasibility of increasing the amount of out-of-cell recreation provided Level Five inmates, and inmates housed in facility detention units. This was based on Director Schriro's intent to build an ADC system that incorporates the field's best practices into an agency that is secure and ensures safe operations, by employing proven strategies. An identified goal within the Plan was to "identify root causes of legitimate inmate complaints Plaintiff alleges that the constant illumination in his cell has resulted in eye strain, the need for eyeglasses, severe migraine headaches, sleep loss, irritability, and serious psychological trauma. (Dkt. 65, 72, 82.)
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and institute systemic changes" and as such, the decision to increase recreation time was in line with the ADC's vision as established in the Director's Plan. (Affidavit of Samuel Sublett ¶ 4, attached here to as Exhibit 1.) To evaluate the feasibility of increasing the amount of time provided for outdoor exercise, the Director ordered a detailed study be undertaken by the prison administrators directly responsible for the day to day operations of level five prison facilities. (Id. at ¶ 5.) The purpose of the study was to determine whether, given the constraints of manpower, physical resources and security concerns, the amount of exercise time could be increased from three hours per week and if so, by how much. (Id. at ¶ 5.) Based on the responses received from the various prison

administrators, the Director, in consultation with prison her prison managers, determined that an increase in outdoor exercise time for level five inmates could be accommodated without a detrimental affect on the safe and secure operation of the prisons, by reallocating line staff duties and modifying existing protocols. (Id. at ¶ 5.) On November 29, 2005, and with the Director's approval, Samuel Sublett, Division Director of Offender Operations, issued a directive to the Regional Operations Directors that became effective on December 12, 2005, and changed the Department's outdoor exercise policy by doubling the number of weekly outdoor exercise hours from three hours per week to six hours per week. (Id. at ¶¶ 6-8.) The new policy allows all level five inmates to have six hours of out-of-cell outdoor exercise time each week. (Id. at ¶ 6. ) At a minimum, outdoor exercise periods will occur on three different days of the week, for two-hour durations. (Id.) Plaintiff has been provided the opportunity for six hours of outdoor recreation per week since the implementation of this policy in December of 2005. (Id.) III. LEGAL ANALYSIS A. The Issue of Outdoor Exercise is Moot as to Injunctive Relief.

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In its February 10, 2006 Order, this Court found that "[t]he parties agree that Plaintiff is allowed three hours of "outdoor" exercise per week in a "recreation area" with a cement floor and walls and a steel grate over the top. Plaintiff contends that three hours of exercise is insufficient and results in physical and psychological harm." (Dkt. __, at 1112.) In reviewing the case law, this Court noted that although three hours per week may have satisfied the objective prong of the Eighth Amendment, it was possible it did not. (Id. at 13.) Given this question, this Court found that an issue of material fact existed requiring further examination. However, because the ADC now affords Plaintiff access to six hours of outdoor exercise per week, instead of three, his request for injunctive relief is moot. There is no longer a viable question raising a question of material fact. 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. To sustain the court's jurisdiction, it is not enough that a dispute was alive when suit was filed, Article III requires that a live controversy exist throughout all stages of the litigation. Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005), citing Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974) (an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed). Thus, should the dispute dissolve at any time due to a change in circumstances, the case becomes moot. See DeFunis v. Odegaard, 416 U.S. 312, 31617 (1974). When a case becomes moot, the federal court lacks subject-matter jurisdiction and the matter must be dismissed. E.g. Foster v. Carson, 347 F.3d 742, 745, (9th Cir. 2003), Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999). Therefore, the court must resolve the question of mootness sua sponte. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004). The Supreme Court has articulated a two-part test for mootness: (1) there is no reasonable expectation that the alleged violation will recur; and, (2) interim relief or events

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have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles, 440 U.S. 625, 631 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)), see also DeFunis v. Odegaard, 416 U.S. 312 (1974), Indiana Employment Security Div. v. Burney, 409 U.S. 540 (1973). Where both conditions are satisfied, the case is moot because "neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law." County of Los Angeles at 631. A(1) Plaintiff is Now Afforded Six Hours Per Week of Outdoor Exercise and That Time Limit Will Remain in Effect. The first requirement of the mootness test is satisfied because there is no reasonable expectation that the amount of outdoor exercise time will be reduced as a policy matter barring any unforeseen events. The issue before the Court was whether three hours of outdoor exercise time amounts to cruel and unusual punishment in violation of the Eighth Amendment. As this Court has stated, "As a general matter, the federal courts have required at least five hours per week of outdoor exercise, although in some circumstance a court has approved as little as one hour per week." (Dkt. 67 at 13.) The Arizona Department of Corrections has implemented a new policy which doubles the amount of outdoor exercise time from the three hours per week complained of as insufficient to six hours per week. The amount of outdoor exercise allotted now exceeds the general rule of five hours of outdoor exercise per week. Defendants have no history of adopting new regulations only to subsequently revert back to the old procedure. Because there is no evidence to suggest that the ADC will resurrect the former outdoor exercise policy of three hours of outdoor exercise per week, the first criteria of the mootness test as to Plaintiff's request for injunctive relief is met.

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A(2) The Newly Implemented Outdoor Exercise Policy has Eliminated Any Likelihood that Plaintiff's Eighth Amendment Rights Are Being Violated. The second requirement of the mootness test has been met because the adoption of a new outdoor exercise policy requiring six hours of outdoor exercise time per week eradicates the basis of Plaintiff's alleged violation and underlying basis for injunctive relief. Specifically, Plaintiff's claim is that three hours of exercise is insufficient and results in physical and psychological harm. While it is clear that exercise is "one of the basic human necessities protected by the Eighth Amendment" Lemaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993), courts are hesitant to make any "hard-and-fast" rules as to how much time of outdoor exercise is required. See Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986). The Supreme Court acknowledges that prison conditions may be "restrictive and even harsh," but they may not deprive inmates of "the minimal civilized measure of life's necessities." See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Plaintiff is a validated STG member and housed in SMU II. Defendants do not deny that Plaintiff leads a heavily restricted life while housed in SMU II. However, Defendants submit that where three hours of outdoor recreation per week may have left a question of fact requiring deeper inquiry, six hours of outdoor exercise time per week clearly meets Constitutional standards and does not deny Plaintiff the minimal civilized measure of life's necessities. See Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988) (affirming injunction requiring five hours of outdoor exercise per week); Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (one hour of outdoor exercise per week does not violate Eighth Amendment).

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III. CONCLUSION For the reasons stated above, Defendants respectfully requests that this Court grant their motion dismiss Plaintiff's request for injunctive relief for additional outdoor exercise time per week. His claim has been mooted by a change in policy which requires that all Level 5 inmates, including Plaintiff be afforded six hours of outdoor exercise per week. Because the question before this Court is no longer viable, the case is moot and the matter must be dismissed. RESPECTFULLY SUBMITTED this 1st day of March, 2006. Terry Goddard Attorney General

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

Original e-filed this 1st day of March, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, Arizona 85003-2118 Copy mailed the same date to: Lorenzo Cruz Falco, #131725 ASPC - Eyman - SMU II P.O. Box 3400 Florence, AZ 85232 s/Susanna C. Pineda Susanna C. Pineda IDS04-0016/RSK: Non-Risk
#936692

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