Free Motion for Summary Judgment - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney Defendant Earl R. Scalet, Deportation Officer Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), by and through undersigned counsel, moves the Court to dismiss the amended complaint pursuant to Rule 12(b), F.R.Civ.P., and, in the alternative, or in addition thereto, requests entry of summary judgment on Counts I and II of the Second Amended Complaint, dated November 28, 2005, pursuant to Rule 56, F.R.Civ.P. These motions are supported by the attached Statement of Facts and the following Memorandum of Points and Authorities Respectfully submitted this 15th day of November, 2006. Carlos Arthur Powell, Plaintiff, vs. F. Garcia, (Assist. Warden); C. Miles (Unit Manager/Bravo); E. Scalet, (INS), Defendants CIV 03-1819-PHX-JAT (LOA) DEFENDANT SCALET'S MOTION TO DISMISS; MOTION FOR SUMMARY JUDGMENT

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I.

Law Governing Summary Judgment Pursuant to Rule 56, F.R.Civ.P., defendant Scalet is entitled, as a matter of law, to

summary judgment dismissing the Second Amended Complaint. Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). One of the principal purposes of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment." T.W. Electrical. Serv. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). Although the court must draw all reasonable inferences in the plaintiff's favor, the court need not draw an unreasonable inference or accept conclusory allegations. Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir.1995) ("Such conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment."). Instead, Rule 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. Id. At least some "significant probative evidence tending to support the complaint" must be produced. Id. Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978). BIVENS ACTIONS In Bivens suits, the contours of federal official immunity law have been carefully drawn to provide appropriate vindication of federal rights but, at the same time, to provide appropriate levels of protection for governmental officials. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Stump v. Sparkman, 435 U.S. 349 (1978).

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Unlike other civil litigation, the Supreme Court has encouraged the use of motions to dismiss or for summary judgment to terminate Bivens-type lawsuits prior to trial based upon an immunity defense. Harlow, 457 U.S. at 819 n. 35; Butz v. Economou, 438 U.S.
478, 507-08 (1978). Indeed, in Harlow the Court directed that the immunity issue is to be

litigated first and that no discovery may proceed unless the Court rejects the defendants' immunity claims. 457 U.S. at 817-18.1/ It is well settled that federal government officials and employees sued in their individual capacity under Bivens-type actions have available the defense of qualified immunity. Butz , 438 U.S. at 508. The Harlow test requires two separate inquiries.2/ First, the official's conduct must have violated a constitutional right that was clearly established at the time the alleged violation occurred. Second, the court must determine if a reasonably competent law enforcement official would have known, under the circumstance of the case, that his conduct was violative of plaintiff's constitutional rights. Harlow, 457 U.S. at 818; Creamer v. Porter, 754 F.2d 1311, 1317 (5th Cir. 1985). The qualified immunity defense shields government agents from liability for civil

The issue of a defendant's entitlement to qualified immunity is a question of law which may also be raised in a motion to dismiss. Harlow, 457 U.S. at 818. Qualified immunity is independent of the merits of plaintiff's claims, and should be resolved in the early stages of litigation, even prior to discovery. Harlow, 457 U.S. at 818. Dismissal
under Rule 12(b)(6) is proper when, taking the material allegations of the complaint, as admitted, and construing them in plaintiff[`s] favor, the court finds that the plaintiff [ ] has failed to allege all the material elements of [his] cause of action." Nix v. Hoke, 139 F.Supp.2d 125 (D.D.C. 2001); Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001)).

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However, a plaintiff is not held to a heightened burden of proof when charging unconstitutional-motive cases against public officials. Crawford-El v. Britton, 523 U.S. 574 (1998). See also, Saucier v. Katz, 533 U.S. 194, 201(2001). To resolve the qualified immunity question, this Court must undertake two inquiries: (1) whether, "[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer's conduct violated a constitutional right"; and, if a violation of a constitutional right could indeed be found, (2) "whether the right was clearly established." Id. 3
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damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Behrens v. Pelletier, 516 U.S. 299, 305-08 (1996). The Supreme Court has noted that under this test, an official may be entitled to qualified immunity from suit even where he has violated a plaintiff's rights - if those rights were not then 'clearly established' or if a reasonable person in the official's position could have failed to appreciate that his conduct would violate them. Mitchell v. Forsyth, 472 U.S. 511, 535 (1985). 3/ Consequently, damage suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgement based on the defense of immunity. Butz, 438 U.S. at 507-8. In order to overcome a defendant official's qualified immunity, a plaintiff seeking damages for a violation of constitutional rights must show that these rights were clearly established at the time of the conduct at issue. Davis v. Scherer, 468 U.S. 183, 193 (1984). In order to meet the burden of proof, Powell must do more than allege a general violation of a clearly established constitutional right. Anderson v. Creighton, 483 U.S. 635 (1987). The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989). In Crawford-El v. Britton, 523 U.S. 574, 588-98 (1998) the Supreme Court held that the defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. A defendant's subjective intent is simply irrelevant. Bare allegations of malice cannot overcome the

The question of immunity is a threshold issue to be determined sua sponte prior to trial, and finding that a defendant has qualified immunity would bar suit against that defendant. Mitchell, 472 U.S. at 535. 4

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qualified immunity defense or meet the initial burden of proving a constitutional violation. Therefore, before allowing even limited discovery the district court: ... may insist that the plaintiff "put forward specific, nonconclusory factual allegations" that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment." 523 U.S. at 598. Courts have defined the limits of qualified immunity in objective terms. Ortiz v. Van Auken, 887 F.2d 1366 (9th Cir. 1989). As noted by the Court in Harlow, "reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgement." 457 U.S. at 818. I. This action is barred by the Qualified Immunity Defense Scalet is clearly entitled to the defense of qualified immunity in this action. Defendant Scalet did not engage in any conduct that infringed upon any of Powell's established Constitutional rights. Scalet did not file a false report on Powell, Scalet did not fail to respond to any of Powell's complaints, Scalet did not physically harm Powell or take or fail to take any actions that would implicate a recognized and established Constitutional Right. All Scalet did was process two "cop outs" regarding two other detainees. See EXHIBITS 1-3. During the course of Scalet's investigation of these cop outs he discovered that Inmate Garcia-Ibarras' appeal had, in fact, been denied by the 9th Circuit. Based on Scalet's knowledge of the fact that Garcia-Ibarra was working "outside the fence" and based on his experience, only inmates who are not subject to deportation/removal proceedings are to be used for "gate-pass" duties. Scalet informed ICE AOIC Crowther of the fact that Mr. Garcia-Ibarra was now subject to removal proceedings, but was being utilized as a "gate-pass" worker. AOIC Crowther set up a meeting between Scalet, CCA Assistant Warden Garcia and CCA Movement Coordinator Joe Nasal to discuss the gate-pass worker situation and how to 5

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avoid having inmates who may not be immediately subject to removal proceedings, but may become amenable to removal in the future, more specifically, inmates who's conviction is under direct appeal from becoming gate-pass workers. Further, Scalet informed Assistant Warden Garcia and Mr. Nasal that ICE intended to place an Immigration Detainer on Inmate Garcia-Ibarra at that time. During that meeting, Scalet also informed Assistant Warden Garcia of the allegation made by Inmate Navarro, that Inmate Garcia-Ibarra was charging other inmates to help them prepare legal paperwork. Assistant Warden Garcia was provided, at this meeting, a copy of the cop-out letter from Inmate Navarro. Assistant Warden Garcia informed Scalet that he was going to bring Inmate Garcia-Ibarra back inside the fence and keep him from being a "gate-pass" worker due to Immigration Detainer being placed on him. Assistant Warden Garcia also said he intended to look into inmate Navarro's allegation that Inmate Garcia-Ibarra was charging inmate for help with their legal paperwork. The meeting was then adjourned. Approximately a week later, CCA Employee Joe Nasal informed Scalet that upon investigation, it was discovered that the "cop-out" letters that Scalet received from both Inmate Salvador-Benitez and Inmate Navarro were written by inmate Carlos Powell (aka Raul Ernesto Alonzo). Inmate Powell was placed into the Special Housing Unit for his own protection by the CCA. Scalet did not suggest, nor did he have the authority to have Powell placed into the Special Housing Unite nor did Scalet ever suggest that such placement was appropriate. Scalet could not have possibly disclosed to anyone that Inmate Powell had "snitched" on any other inmate because Powell made the allegation while writing correspondence under the name of Inmate Navarro. Scalet was not even aware of Inmate Powell's involvement until the CCA investigation of the allegations were complete, and by that time Powell had already been placed into protective custody by

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CCA. At no time did Scalet take any actions against or make any statements regarding Powell with respect to my handling of the "cop-outs" submitted to me by inmates Eric Salvador-Benitez or Inmate Garcia-Ibarra. Further, Scalet had no reason to discuss Powell with the two other inmates. Finally, other than the meeting Scalet had with ICE AOIC Crowther, and the meeting with CCA Assistant Warden Garcia and CCA employee Joe Nasal, Scalet had no further contact with any CCA employee or representative, including co-defendant Ms. Cora A. Miles, regarding inmates Ismael Navarro, Garcia-Ibarra, Eric Salvador-Benitez or Carlos Powell. Scalet was merely doing his job and nothing more. Scalet had no reason to believe that by processing the two "cop outs and that the meeting to discuss "gate pass" workers would lead to Powell's placement in protective custody. The qualified immunity standard protects "all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991); see also, Brewster v. Bd. of Ed. Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998). Therefore, as a matter of law, Scalet is entitled to dismissal from this action based upon the Qualified Immunity doctrine. II. The Doctrine of Respondeat Superior is not applicable. The doctrine of respondeat superior is inapplicable to Bivens actions. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Persons without personal involvement or participation in alleged unconstitutional acts should be dismissed. Rizzo v. Goode, 423 U.S. 362 (1976). Scalet was not in a supervisory position with respect to CCA employees. Even if her were, supervisory government officials can not be held accountable for the actions of subordinates "[s]ince the allegedly negligent lower level employees are not the 'employees' or 'agents' of the defendant [supervisors], but both are fellow servants of the [United States]," which is immune from suit. See, Sportique

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Fashions Inc. v. Sullivan, 597 F.2d 664, 666 (9th Cir. 1979). The liability of a Bivens defendant can only be predicated on his/her actual and knowing participation in the alleged unconstitutional conduct. Boettger v. Moore, 483 F.2d 86, 87 (9th Cir. 1983). Powell has not come forward with any evidence that Scalet was an employee of the CCA or the Federal Bureau of Prisons (BOP). The BOP is a separate federal agency and CCA an independent and private contractor with the BOP. Further, there is no evidence presented that Scalet had any actual or apparent authority to supervise or control the actions of CCA or BOP employees. Therefore, defendant Scalet should be dismissed from this action because the principle of respondeat superior is not applicable to Bivens actions. CONCLUSION
Defendant Scalet is entitled to qualified immunity because his actions did not violate any clearly established rights of the plaintiff. The facts demonstrate that he acted within the scope of his employment and his discretionary authority. His actions did not violate any constitutional rights of the plaintiff.

Respectfully submitted this 15th day of November, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on November 15, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Timothy James Bojanoski Daniel Patrick Struck Jones, Skelton & Hochuli, PLC 2901 N. Central Ave, Suite 800Phoenix, Arizona 85012 Attorneys for Defendants Carson, Gluch, Talamantes, Miles, Ponce s/John R. Mayfield Office of the U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on November 15, 2006, I served the attached document by mail, on the following, who is not a registered participant of the CM/ECF System:
Carlos Arthur Powell c/o Ken Peterson, Esq., The Office of the Amicus Curiae Association Foundation 9335 Bowman Avenue South Gate, CA., 90280

/John R. Mayfield

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