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

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WO

UNITED STATES DIS TRICT COURT DIS TRICT OF ARIZONA
Eric John Lanzeiri, Plaintiff v. Terry L. Stewart, et al., Defendant(s) ORDER CV-02-1975-PHX-DGC (LOA)

Under

consideration

is

Defendants'

M otion

for

Summary

Judgment,

filed

February 22, 2005 (#68), supported by a separate Statement of F act s (#69) and Affidavit of Adu-Tutu (#71). Plaintiff has responded (#72) and filed his own Statement of Facts (#73). Defendants have filed a Reply (#74). 1. BACKGROUND

Plaintiff, a prisoner of the Arizona D ep art ment of Corrections ("ADOC"), has filed a Second Amended Complaint (#39) asserting two counts: (1) deliberate indifference to The Court's

serious dental needs and (2) denial of meaningful access to the courts .

screening Order, filed June 10, 2004 (#38), dismissed a number of defendant s . An answer to Count I (dental needs) was required from three dentists, Defendants Krebs, D'M ura, and Sears, and a dental assistant, Defendant Turnbow. An ans w er to Count II (access) was

required from administrative Defendants Stewart and Bourgeous. Plaintiff's deliberate indifference claim arises out of the dental care provided by ADOC over a period of several years. Plaintiff asserts that the care he received was so

delayed and inadequate that he suffered the loss of nine teeth by extraction, with

associated pain. 28 Case 2:02-cv-01975-DGC-LOA

Document 77- 1 - Filed 09/30/2005

Page 1 of 15

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Plaintiff's access t o t he courts claim arises out of a Colorado state prosecution and a detainer placed against him by Colorado officials. Plaintiff asserts that Defendants failed to provide him with access to adequate Colorado state legal materials t o allow him to challenge the detainer and be returned to Colorado for sentencing on his Colorado conviction. In their motion for summary judgment, Defendants argue that Plaintiff w as provided adequat e dental care and cannot show deliberate indifference to serious dental needs . Defendants argue that Plaintiff's access claim is without merit because the detainer was eventually terminated. M oreover, because the detainer was terminated prior to the filing

of Plaintiff's Second Amended Complaint, Defendants argue t hat Plaintiff has violated Rule 11 of the Federal Rules of Civil Procedure and should be sanctioned. Plaintiff argues that continued delay in his dental treatment, in the face of ongoing decay, evidences deliberate indifference sufficient to sustain an Eighth Amendment violation. Although the detainer was terminated, Plaintiff argues t hat he w as never able

to seek sent encing from the Colorado courts and serve his sentence concurrently with his present incarceration. 2. S TANDARD FOR S UMMARY JUDGMENT

A court must grant summary judgment if the pleadings and supporting document s viewed in the light most favorable to the non-moving party "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). 3. DELIBERATE INDIFFERENCE TO DENTAL NEEDS A. Material Undisputed Facts

On July 23, 2001, Plaintiff reentered ADOC custody at the Alhambra Reception Cent er in Phoenix, Arizona. (DSOF ¶ 1, 6; PSOF ¶ 1.) Upon arrival, Plaintiff received a dental examination that included x-ray s and instructions on oral hygiene. (DSOF ¶ 8.)

Plaintiff informed the examiner that he recently had received two root canals and that he

28 was "in the process of getting all my teeth filled and capp ed w hen I was arrested." (PSOF Case 2:02-cv-01975-DGC-LOA Document 77- 2 - Filed 09/30/2005 Page 2 of 15

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¶ 2.)

On J uly 30, 2001, Plaintiff was transferred to the Stiner Unit of ASPC-Lewis in Buckeye, Arizona. (DSOF ¶ 11; PSOF ¶ 3.) On that same date, Plaintiff submitted a "Health Needs Request" ("HNR") complaining of tooth pain. (DSOF ¶ 12.) On August 6, 2001,

Plaintiff was seen by Defendant Dr. D'M ura who examined, x-rayed, and treated Plaintiff with a temporary filling of tooth 7. (DSOF ¶ 13; PSOF ¶ 4.) Plaint iff was advised to put in another HNR for tooth 10, the next tooth requiring a filling. (PSOF ¶ 4.) On August 13, 2001, Defendant Dr. D'M ura filled tooth 10 with a t emp orary filling. (PSOF ¶ 5.) Dr. D'M ura indicated toot h 29 w as next for a filling, but told Plaintiff that the rest of his teeth were restorable. (PSOF ¶ 5.) On August 15, 2001, Plaintiff filed a HNR for dental care. (PSO F ¶ 6.) O n A ugust 20, 2001, Plaintiff was seen by Defendant Dr. Krebs, who diagnosed tooth 29 as having an irreversible inflammation of the pulp and recommended extraction. (DSOF ¶ 15.) Dr. Krebs also noted t hat t he three teeth with prior root canals were decayed bey ond " rout ine dental treatment" because of neglect. (DSOF

¶ 15.) P laint iff asked for a root canal on tooth 29, but was told he did not meet the ADOC guidelines for a root canal. (PSOF ¶ 6.) Plaintiff refused extraction of tooth 29. (DSOF ¶ 15; P SOF ¶ 6.) Defendant dental assistant Turnbow told Plaintiff that even if he refus ed t he extraction on August 20th, he was still not eligible for a filling or a root canal of tooth 29 at a later time. (PSOF ¶ 6.) When D efendant Dr. D'M ura entered the room, Plaintiff asked him to explain to Defendant Turnbow that tooth 29 could be saved. Defendant D r. D 'M ura refused to become engaged in the dispute over Plaintiff's treatment. (PSOF ¶ 6.) Plaintiff was seen on A ugus t 23, 2001, and again refused extraction of tooth 29. (DSOF ¶ 16; PSOF ¶ 7.) Plaintiff requested fillings in other teet h, but was advised by

Defendant Turnbow that he would not receive any further treatment until tooth 29 was extracted. (PSOF ¶ 7.) Plaintiff signed a "Refusal to Treat" form. (DSOF ¶ 16.) Plaintiff was seen on September 4, 2001 and was scheduled for a filling in tooth 18.

28 (DSOF ¶ 18; PSOF ¶ 8.) On September 20, 2001, Plaintiff was seen by Defendant Dr. Krebs, Case 2:02-cv-01975-DGC-LOA Document 77- 3 - Filed 09/30/2005 Page 3 of 15

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complaining of pain and requesting extraction of tooth 18. Instead, Dr. Krebs provided "conservative treatment ­ occlusion adjustment ­ to address teeth 18 and 19." (DSOF ¶ 18; PSOF ¶ 9.) Dr. Krebs refused Plaintiff's request t o have root canals in teeth 11, 13 and 19 filled and capped. (PSOF ¶ 9.) On September 27, 2001, Plaintiff returned request ing an extraction of tooth 29. On October 4, 2001, Dr. Krebs, after again informing P laintiff that the tooth could not be saved, extracted tooth 29. (DSOF ¶¶ 19-20; PSOF ¶ 10-11.) Plaintiff was t reat ed by Defendant Dr. Sears on October 11, 2001 for post-extraction pain. (DSOF ¶ 21.) Plaintiff was told by Dr. Sears that he would need to submit another HNR for further fillings. (PSOF ¶ 12.) On October 13, 2001, Plaintiff submitted a H N R requesting that some cavities be filled. Plaintiff was told by Defendant Dr. Sears that he was on t he "routine care list." (DSOF ¶ 22; PSOF ¶ 13.) Plaintiff submitted two more HNRs in November 2001 requesting fillings and was again told by Defendant Dr. Sears and Defendant Dr. Krebs that he was on the "routine care list." (DSOF ¶ 23; PSOF ¶ 14 and 15 .) From November 2001 until M arch 26, 2002, Plaintiff received no dental care. On

January 21, 2002, he wrote an "Inmate Letter" complaining of the failure to provide him with fillings. (PSOF ¶ 16; PSOF Exhibit 12.) On M arch 4, 2002, Plaintiff submitted an Inmate

Grievance complaining of the failure to provide fillings. (PSOF ¶ 17; PSOF Exhibit 9.) Plaintiff was seen on M arch 26, 2002, complaining of pain. According t o D r. AduTutu, the following transpired on that date: At the appointment, Lanzeiri told dent al s t aff that he wanted the routine treatment done. Dent al Assistant Turnbow explained to Lanzeiri that he was on the list and that there were about 30 patients in front of him, but if he had pain the doctor would examine him. Lanzeiri became upset, told the dental staff that he w as going to sue them and left the clinic. Dr. Sears was on duty, but because Lanzeiri left, he was not able to evaluate Lanzeiri's condition. (Adu-Tutu Affid., #71 at ¶ 20.) According to Plaintiff the explanation given was as follows:

Dental informed Lanz eiri that they could do a pain evaluation but if t hey did he would have to go to the bottom of the routine care list and wait 6 more months for a filling after he had already been on the 28 Case 2:02-cv-01975-DGC-LOA Document 77- 4 - Filed 09/30/2005 Page 4 of 15

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routine care list for 6 months already. Louise Turnbow and Dr. Sears said I would have to live with the pain for a few more weeks and get a filling or go to the bottom of the routine care list. (PSOF ¶ 19.) On April 8, 2002, Plaintiff filed an appeal on his grievance. (PSOF ¶ 19.)

4 During the following four months, beginning M ay 2, 2002, Dr. Sears replaced the 5 temporary filling in tooth 7 with a permanent filling, treated tooth 21, prescribed pain 6 medication, and scheduled an extraction of tooth 5. (DSOF ¶ 25, 26, 27 and 28; PSOF ¶ 20, 7 21.) 8 submitted a HNR on J une 24, 2002, complaining that a temporary filling had fallen out and 9 required immediate care. (PSOF ¶ 24.) 10 11 t oot h 18, and was seen on July 2, 2002 by Dr. Krebs, who advised Plaintiff that he was not 12 a candidat e for a root canal in tooth 18 and recommended extraction. (PSOF ¶ 25.) Plaintiff 13 declined extraction of tooth 18, stating that he did not w ant the pain and, in any event, 14 wanted to wait until after weekend visits. (PSOF ¶ 25.) 15 Plaintiff returned on July 11, 2002, and Dr. Sears extracted tooth 18. 16 examination, Dr. Sears also noted that the root canals on teeth 11, 13, and 19 were 17 deteriorating and might need extraction. (DSOF ¶ 31; PSOF ¶ 26.) On July 15, 2002, Plaintiff 18 submitted a HNR requesting fillings on teeth 10, 12 and 20. (PSOF ¶ 27.) Dr. Sears followed 19 20 21 22 23 24 25 26 Plaintiff asserts that at the August 19, 2002 appointment, his request for something stronger than Ibuprofen for p ain was denied. (PSOF ¶ 29.) This assertion is not 28 supported by Plaintiff's affidavit or the attached records. Case 2:02-cv-01975-DGC-LOA Document 77- 5 - Filed 09/30/2005 Page 5 of 15 27
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D r. K rebs extracted tooth 5 on June 6, 2002. (DSOF ¶ #29; PSOF ¶ 21.) Plaintiff

Plaintiff submitted another HNR on J une 28, 2002, complaining of severe pain in

Upon

up with him on July 15 and 23, 2002, for infection. (D SO F ¶ 32.) On August 6, 2002, Plaintiff was treated by Dr. Sears for pain in tooth 30. (DSOF ¶ 33; PSOF ¶ 28.) Plaintiff subsequent ly submitted a HNR complaining of a broken tooth, and on August 19, 2002, Dr. Krebs extracted teeth 11 and 13. (DSOF ¶ 34; PSOF ¶ 29.)1 Sutures were removed a week later. (DSOF ¶ 34.) On August 26, 2002, Plaintiff submitted a HNR requesting fillings in teeth 12 and 20, and rep lacement of the temporary filing in tooth 10.

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(PSOF ¶ 30.) Plaint iff was not seen in September, October, or November, 2002. He did, however, submit an inmate letter on September 30, 2002. (PSOF ¶ 31.) On October 7, 2002, Plaintiff initiated this lawsuit by filing his original Complaint (#1). On November 18, 2002, Plaint iff submitted a HNR again complaining of his missing temporary filling. He was told he was on the scheduling list. (PSOF ¶ 32.) Plaintiff sought treatment for dental pain in tooth 12 on December 12, 2002, and w as s een December 16, 2002. (DSOF ¶ 35; PSOF ¶ 33.) Plaintiff was told that if he received an evaluat ion and treatment on tooth 12 he w ould go to the bottom of the routine care schedule, thereby delaying treatment on tooth 10. (PSO F ¶ 33.) Accordingly, Plaintiff refused treatment.

(DSOF ¶ 35, PSOF ¶ 33.) Plaintiff returned January 9, 2003 and Dr. Krebs restored the filling in tooth 10 that had now been missing nine months. (DSOF ¶ 36; PSOF ¶ 34.) On January 11, 2003, Plaintiff submitted a HNR requesting treat ment on t ooth 12. (PSOF ¶ 35.) On January 21, 2003, Defendant Dr. D'M ura diagnosed Plaintiff w ith an

infection in tooth 12 and prescribed a course of antibiotics. (DSOF ¶ 37; PSOF ¶ 35.) On January 28, 2003, Plaintiff submit t ed a H N R asking why his prescription had not been filled.2 (PSOF ¶ 35.) On January 30, 2003, Plaintiff was seen by Dr. Krebs who determined that tooth 12 was not salvageable, and extracted it. (DSOF ¶ 38; PSOF ¶ 36.) On February 10, 2003, Plaintiff was seen by D r. Krebs, who extracted tooth 20 and recommended further treatment for tooth 19. (DSOF ¶ 39.) Plaintiff returned February 27, 2003 and Dr. Krebs extracted tooth 19. (DSOF ¶ 40.) Dr. Krebs subsequent ly t reated

Plaintiff for post-operative pain. (DSOF ¶ 41.) Plaintiff received a temporary filling in tooth 31 on April 2, 2003, and a permanent filling on June 26, 2003. (DSOF ¶ 42.) From June 26, 2003 until June 2004, Plaintiff received no dental treatment. June 23, 2004, Dr. Sears filled teeth 8 and 9. (DSOF ¶ 43.) On

The parties dispute whether Plaintiff failed to pickup his antibiotics prescribed on January 21, 2003 (DSOF ¶ 37; Adu-Tutu Affid., #71 at ¶ 34) or whether ADOC failed to 27 make t he p res cription available (PSOF ¶ 35; PSOF Exhibit W). The Court does not find 28 these disputed facts material to the resolution of the motion. Case 2:02-cv-01975-DGC-LOA Document 77- 6 - Filed 09/30/2005 Page 6 of 15

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b.

Discussion.

Where the actions of prison administrators are alleged t o have violated the Eighth Amendment, the Supreme Court has held that two requirements must be met . deprivation alleged must be, objectively, `sufficiently serious.'" " F irs t , the

Farmer v. Brennan, Second,

511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

"a prison official must have a `s ufficiently culpable state of mind.'" Id. (quoting Wilson, 501 U.S. at 297). "In prison-condition cases that stat e of mind is one of `deliberate indifference' to inmate health or safety." Id. (quoting Wilson, 501 U.S. at 302-303). " It is well settled that deliberate indifference to serious medical needs of prisoners violates the Eighth

Amendment." Jackson v. McIntosh, 90 F.3d 330, 332 (9 t h Cir. 1996). It is also settled that a dental problem can constitute a serious medical need. Hunt v. Dental D ept., 865 F.2d 198, 200 (9th Cir. 1989). The law is equally clear in holding that mere negligence is not sufficient to establish a claim for deliberate indifference. "M edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Even gross negligence is insufficient. See Wood v. Housewright, 900 F.2d 1332,

1334 (9th Cir. 1990). Only cruel and unusual punishment gives rise to liability, and Plaintiff therefore must show the requisite mental state of the defendants. The Ninth Circuit recently summarized the law on the required subjective state of mind in a deliberate indifference case: A prison official acts with "deliberate indifference . . . only if the [prison official] knows of and disregards an excessive risk to inmate health and safety." Under t his standard, the prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," but that person "must also draw the inference." . . . This "subjective approach" focuses only "on what a defendant's mental attitude actually was." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citations omitted). "Whether a

prison official had the requisite knowledge of a subs t antial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and

28 a factfinder may conclude that a prison official knew of a substantial risk from the very fact Case 2:02-cv-01975-DGC-LOA Document 77- 7 - Filed 09/30/2005 Page 7 of 15

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that the risk was obvious." Farmer, 511 U.S. at 842. Defendants do not argue that Plaintiff's dental condition was not a serious medical need. The question that must be resolved in this mot ion, therefore, is whether Plaintiff has pres ent ed sufficient evidence that Defendants acted with deliberate indifference toward him, rather than merely being negligent or even grossly negligent. To defeat summary

judgment, Plaintiff must produce evidence from which a reasonable jury could find that Defendants were deliberately indifferent to Plaintiff's serious dental needs. Plaintiff admits that he reent ered custody with severe pre-existing dental problems. (PSOF ¶ 2.) Plaintiff report ed upon his arrival at the Alhambra facility that he had just

received two root canals and was in t he process of having "all of his teeth [either] filled or cap p ed w hen he was arrested." Id. From July 2001 until June 2004, Defendants performed dental work on seventeen of Plaintiff's teeth, including nine fillings (teeth 7, 10, 18, 19, 21, 10, 31, 8 and 9) and eight ext ractions (teeth 29, 5, 18, 11, 13, 12, 20 and 19). Defendants treated Plaintiff some 30 times during this three-year period. Plaintiff makes a variety of complaints about his dental treatment. Some of the

complaints amount to disagreement s over the proper treatment for his teeth. For example, Plaintiff disagreed with Dr. Krebs' conclusion that tooth 29 s hould be extracted and was not a candidate for a root canal, refusing to have the tooth extract ed on August 20 and 23, 2001. (DSOF ¶ 15; PSOF ¶ 6-7.) Plaintiff disagreed with Dr. K rebs ' conclusion on

September 20, 2001 that tooth 18 s hould not be extracted, insisting that it should. (DSOF ¶ 18.) On at least five separate occas ions , Plaintiff refused to accept the suggested dental treatment ­ August 20 and 23, 2001, and M arch 26, July 2, and December 16, 2002. Although Plaintiff's disagreements with Defendants may w ell have been genuine, a mere "difference of medical opinion . . . [is] not sufficient, as a matter of law, to establish deliberate indifference." Toguchi, 391 F.3d at 1058. Plaintiff's primary complaint is that Defendants delayed his dental treatment. The

Ninth Circuit has held, however, that a "[m]ere delay of [treat ment ], without more, is

28 insufficient to state a claim of deliberate medical indifference." Shapely v. Nev. Bd. of State Case 2:02-cv-01975-DGC-LOA Document 77- 8 - Filed 09/30/2005 Page 8 of 15

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Prisons Com 'r s , 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff must assert facts showing that the delay caused significant harm. Id. A s noted above, Plaintiff must also show that the

delay resulted from Defendants' deliberate indifference. Plaintiff's recitation of event s in this case, without more, does not constitute sufficient evidence that delays in his treatment resulted from deliberate indifference on the part of Defendants. Procedures of the Arizona Department of Corrections state that

routine dental care will be provided on a first-come, first-serve basis, according to a scheduling list. The record reflects a practice of limiting emergency treatment to

emergency cases, with inmates who receive such expedited treatment then dropping to the bottom of the routine care waiting list. Defendant Dr. Sears explained the process: If you have no severe pain (or emergency) you can wait for y our filling ap p ointment or if it is really bad you will be brought back for an extraction. Usually an emergency/abscess visit results in an extraction and rarely can a tooth that hurt s really bad accept a filling and not give y ou excruciating pain until it is pulled. We can not do much about t he lengt h of the list, but we can give you the appropriate treatment when you get here. (PSOF Exh. X7-X8, Response to grievance.) The record in this case reflects that Plaintiff was seen promptly whenever he requested emergency care. The record also reflects that Defendants would suggest

Plaintiff submit another HNR when his teeth were in need of additional work. A lt hough it is true that Plaintiff experienced delays, sometimes substantial, while aw ait ing routine care, Plaintiff has presented no evidence that Defendants w ere acting other than according to ADOC policies and the established scheduling procedures, that they singled P laintiff out for delay, that they denied him treatment when they were available to provide it, or that they otherwise acted with the necessary mental state of deliberate indifference. Plaintiff would have the Court conclude t hat t he delays necessitated by the ADOC schedule evince deliberate indifference on the part of Defendants, but t he Court cannot do so. With a large and growing prison population, Defendants necessarily must schedule

dental care and other services, providing emergency care before routine care and providing

28 routine care on a scheduled basis. Plaintiff essentially argues for a different policy ­ Case 2:02-cv-01975-DGC-LOA Document 77- 9 - Filed 09/30/2005 Page 9 of 15

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providing routine care on the basis of greatest need rather than on the basis of when the care is sought. In addition to the fact that Plaintiff presents no evidence that he would

have received more prompt care under such a policy (that his dental needs w ere greater than those of other inmates), a dis agreement with the wisdom or compassion of Defendants' scheduling policy does not establish that Defendants acted with deliberate indifference. Even if a jury could conclude that Defendants' scheduling of Plaintiff's care

was negligent, or grossly negligent, Plaintiff would not es t ablis h the required mental intent.

The quest ion is what Defendants actually thought. Toguchi, 391 F.3d at 1057. Plaintiff has not presented sufficient evidence that delays in his treatment resulted from deliberate indifference ­ intentional disregard ­ of his condition. To the contrary , t he

evidence suggests that D efendants were responsive every time Plaintiff presented with an emergency, advised him when he should seek additional treatment , administered routine care according to an established, prison-wide schedule, and s ucceeded in treating Plaintiff some 30 times in three years. Plaintiff's recitation of events also fails to p rovide sufficient evidence that delays in his treatment caused the extraction of his teeth. As noted above, mere delay is not sufficient ; Plaintiff must assert facts showing that the delay caused significant harm. Shapely, 766 F.2d at 407. Indeed, the First, Third, Sixth, and Eleventh Circuits require that "an inmate who complains that [a] delay in medical treatment rose t o a constitutional violation, must place verifying medical evidence in t he record to establish the detrimental effect of t he delay in medical treatment to succeed." Napier v. Madison County, Ky, 238 F.3d 739, 742 (6t h Cir. 2001) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)). Plaintiff suffered from major dental problems when he came into Defendants' custody and care. He admitt s t hat up on arrival "all" of his teeth were in need of root

canals, fillings, and caps. (PSOF ¶ 2.) Defendants treated Plaintiff's emergencies promptly

28 and provided routine care to the teeth in greatest need, suggesting Plaintiff submit Case 2:02-cv-01975-DGC-LOA Document 77- 10 -Filed 09/30/2005 Page 10 of 15

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additional HNRs when more care w as needed.

Some of Defendants' efforts to save

Plaintiff's teeth, such as t oot h 18, were unsuccessful, and the root canals Plaintiff received before entering custody also appear ultimately to have failed. Given the p re-existing condition of Plaintiff's teeth and the substantial dental care he did receive from Defendants, a jury could not reasonably conclude from the fact of delay alone that Plaintiff's loss of teeth could have been avoided ­ that more prompt treatment by Defendants would have saved his already-deteriorating teeth. P laintiff has

provided not hing beyond the fact of delay to support his claim. The Court concludes that Plaintiff has not presented sufficient evidence of causation to overcome s ummary judgment. Because Plaintiff has failed t o meet his burden of showing deliberate indifference on the part of Defendants and caus at ion for the loss of his teeth, the Court will grant summary judgment on his dental care claim. Plaintiff cannot sustain his charge that

Defendant s ' dent al care constituted cruel and unusual punishment in violation of the Eighth Amendment. c. DENIAL OF ACCES S TO COURTS a. Material Undisputed Facts

On November 13, 2001, the Sheriff's Office of Weld County, Colorado, notified the Arizona Department of Corrections of an active warrant against Plaintiff and requested a detainer. (PSOF ¶ 39.) The warrant stemmed from Plaintiff's failure to appear for (PSOF

sentencing in a criminal trial in which he had already been convicted for es cape.

Exh. 001.) Plaintiff received notice of the detainer from a Colorado public defender's office. (PSOF ¶ 40.) The p ublic defender advised Plaintiff regarding the steps that were required for him to act on the detainer and t o be returned to Colorado for sentencing, including the requirement that Plaintiff be advised by ADOC of t he detainer and request a "final disposition." (PSOF ¶ 40.) P laintiff never received notice from ADOC about the detainer. (PSOF ¶ 40 (second).)

28 On December 26, 2001, Plaintiff wrote the p ublic defender advising him of that fact. (PSOF Case 2:02-cv-01975-DGC-LOA Document 77- 11 -Filed 09/30/2005 Page 11 of 15

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¶

41.)

On January 10, 2002, the public defender advised Plaintiff to request final

disposition anyway. (PSOF ¶ 42.) On January 15, 2002, Plaintiff filed an inmate letter with ADOC requesting final disposition of the detainer, but never received a response. ¶ 43.) On February 25, 2002, Plaintiff received a letter from the public defender's office advising him that the court could impose sentence on the Colorado convict ion to run concurrent ly with his Arizona sentence, but that the prosecutor would not consent to sent encing Petitioner in absentia. (PSOF ¶ 44.) Indeed, the letter opined that there was (PSOF

"probably a good chance" that P laint iff would obtain a concurrent sentence, but noted that the prosecutor would not enter into s uch a stipulation. (PSOF Exhibit EE.) The letter also

not ed that the public defender had not received notice of Plaintiff's request for final disposition of the detainer, and advised Plaintiff to file a petition for writ of habeas corpus. (PSOF ¶ 44.) Plaintiff sought forms or copies of the law from the ADOC library to file a petition for writ of habeas corp us w it h t he Colorado courts, but was refused. (PSOF ¶ 45.) The policies of ADOC preclude employees from supplying inmates with out-of-state court forms and direct inmates to obtain them directly from the relevant s t ate. (DSOF ¶ 46.)

Plaintiff proceeded to prepare a habeas petition with the help of an inmat e and filed it in Colorado on M arch 15, 2002. (PSOF ¶ 45.) On July 15, 2002, the public defender wrote Plaintiff and advised him that Colorado would bring Plaintiff back for sentencing if he would file for final disposition of the detainer; ot herwise, Colorado would wait until he completed his Arizona sentence. (PSOF ¶ 46.) T he letter also advised Plaintiff that the Colorado prosecutor was of the opinion (P SOF Exhibit FF.) Plaintiff

that the Interstate Agreement on Detainers did not ap p ly .

responded by informing the public defender that he had instead filed the habeas pet it ion and asked the public defender to check on its status. (PSOF ¶ 47.) On Augus t 20, 2002, Plaintiff began the process of grieving his denial of access to

28 the courts, but failed to appeal all the way to the Director of A D O C. (P SO F ¶ 48.) As a Case 2:02-cv-01975-DGC-LOA Document 77- 12 -Filed 09/30/2005 Page 12 of 15

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result of P laintiff's failure to completely exhaust the claim, his lawsuit on the issue was dismissed. Accordingly, on A p ril 24, 2003, Plaintiff began the process of grieving the issue again. (PSOF ¶ 49.) In addition, on M ay 28, 2003, Plaintiff wrote the Colorado court offering to waive extradition if the Court would agree to certain sentencing conditions. (PSOF ¶ 50; PSOF

Exh. LL.) On June 10, 2003, the Colorado court ordered the prosecution to show cause why the relief should not be granted. (PSOF ¶ 51.) The prosecution responded by noting

Plaint iff's repeated requests for sentencing, but noted that the situation was not covered by the Interstate Agreement on Detainers and that sentencing therefore should be delayed until completion of Plaintiff's Arizona sentence. (PSOF ¶ 52.) On January 12, 2004, Plaintiff's Colorado habeas petition, filed in M arch, 2002, was deemed to be deficient on its face. (PSOF ¶ 45.) The Colorado court, however, addressed the merits of the petition and concluded that it s hould be denied because the Interstate Agreement on Detainers and the Uniform M andatory Disposition of Detainers Act did not apply because Plaintiff was not awaiting trial in Colorado, but was awaiting sentencing. (PSOF Exhibit OO.) On January 19, 2004, the Sheriff's Office of Weld County, Colorado cancelled the detainer against Plaintiff, but requested notice of his impending releas e so they could act on their still-pending warrant. (DSOF ¶ 44; PSOF ¶ 55.) b. Discussion.

To establish a violation of the right of access to the courts, a prisoner must establish that he or she suffered an actual injury, i.e. "actual prejudice with res pect to contemplated or exis t ing litigation, such as the inability to meet a filing deadline or to present a claim." L ewis v . Casey, 518 U.S. 343, 348 (1996). Plaintiff argues he was injured because ADOC failed to afford him sufficient access to the courts to allow him to be returned to Colorado for sent encing. Plaintiff assumes that if he had been returned to

Colorado and sentenced, he would have received a sentence concurrent wit h his A rizona

28 sentence. This assumption is based solely on the representation of his Colorado p ublic Case 2:02-cv-01975-DGC-LOA Document 77- 13 -Filed 09/30/2005 Page 13 of 15

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defender that there w as a "good chance" for such a sentence.

Plaintiff has provided no

other evidence from which to determine how the Colorado court would have sentenced Plaintiff. His injury is at best speculative. M ore particularly, P laint iff's claim is that ADOC caused this injury by failing to provide him with Interstate Agreement on Detainers ("IAD") forms, and forms and law neces s ary sentencing.3 to prepare a proper Colorado habeas petition to secure his immediate Assuming that Defendants had a duty to make available to Plaintiff the forms

and law of Colorado, Plaintiff has failed to establish that their failure to do so actually injured Plaintiff. Although t he Colorado court concluded that Plaintiff's habeas petition Plaintiff's

was deficient on its face, the court proceeded to cons ider it on the merits.

petition was denied because Plaintiff was not facing outstanding charges, but was w ait ing to be sentenced on comp let ed convictions. The IAD therefore did not apply and Plaintiff had no right to be returned to Colorado.4 Plaint iff argues that the deficiencies nonetheless injured Plaintiff because, but for the deficiencies, the habeas p et ition would have been heard in M arch 2002 rather than January 2004. But Plaintiff offers nothing t o s how that the outcome in 2002 would have been favorable. Plaintiff may be asking t his Court to conclude that in 2002 the prosecutor was more amenable to immediate sentencing of Plaintiff and that the court would have been swayed by the prosecutor to ignore t he longstanding law of Colorado excluding Plaintiff

Plaintiff also makes reference to the Uniform M andatory Disposition of Detainers Act. The statute, however, governs only intrastate detainers. Plaintiff was seeking an interstate transfer from Arizona to Colorado, and thus the statute had no application.
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Although the correct ness of the Colorado decision is not entirely clear, compare Tinghitella v. State of Cal., 718 F.2d 308, 311 (9th Cir. 1983) ("we conclude that the terms 25 'trial' and 'final disposit ion' as used in the IAD encompass sentencing") with U.S. v. 26 Hoffman, 905 F.2d 330, 333 (10th Cir. 1990) ("[w]e hold that 'trial' in the IAD anti-shuttling 27 provisions does not include sentencing), it was rendered by the court t hat would have ruled on P laintiff's request even if in a different form. There is no reason to think that any 28 action by Defendants would have produced a different ruling. Case 2:02-cv-01975-DGC-LOA Document 77- 14 -Filed 09/30/2005 Page 14 of 15

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from the protections of the IAD.5 But this suggestion is also speculative. Plaintiff has not met his burden of establishing the elements essential to his access to the courts claim. Celotex, 477 U.S. at 322-323. are entitled to judgment as a matter of law.6 IT IS ORDERED: 1. 2. Defendants' M otion for Summary Judgment (#68) is GRANTED. The Clerk shall terminate this action. Defendants have established that they

DATED this 30th day of September, 2005.

The Colorado court relied upon a 1993 case, Moody v. Corsentino, 843 P.2d 1355 (Colo.1993), to reject Plaintiff's IAD claim. Defendant s argue that Plaintiff's claim is frivolous because is was rendered moot w hen the Colorado detainer was cancelled. Defendants misconstrue Plaintiff's complaint . Plaintiff does not seek damages based on the existence of the detainer, but based upon ADOC's failure to assist Plaintiff in acting on the detainer. The Court concludes that Plaintiff's claim was not baseless at the time of his amended complaint, and the request for Rule 11 sanctions will therefore be denied. Document 77- 15 -Filed 09/30/2005 Page 15 of 15
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28 Case 2:02-cv-01975-DGC-LOA