Free Reply in Support of Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Misty D. Guille Assistant Attorney General State Bar No. 020830 1275 West Washington Phoenix, AZ 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Karen Jean Smith, Plaintiff, v. Linda Vega, et al., Defendants. DEFENDANT'S REPLY IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT No. CV 04-00558-PHX-EHC (CRP)

Defendant Vega, through undersigned counsel, replies in support of her Motion for Summary Judgment (dkt. 47). Vega filed her Motion for Summary Judgment (dkt. 47) and Statement of Facts (dkt. 48), and Smith timely filed a Response (dkt. 53). Defendant Vega files concurrently herewith her "Objections and Motion to Strike or Exclude Portions of Plaintiff's Statement of Facts (Located at Dkt. 53, Exhibit 1)." The pleadings and supporting documents, viewed in the light most favorable to Smith, show that there is no genuine issue as to any material fact and that Vega is entitled to summary judgment. I. Smith's Failure to Exhaust. Smith has admitted that she did not file a grievance regarding her claim that Vega had retaliated against her. (See dkt. 48 [Defendant's Statement of Facts] at ¶ 60.)

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Likewise, Smith's appeal of the disciplinary charge did not raise the assertion that Vega had retaliated against her. (See dkt. 48 at ¶¶ 54­56.) Her appeal of the disciplinary charge instead focused on the Disciplinary Hearing Officer's exclusion of a witness statement and the severity of penalties assessed. (See id.) She was concerned about the "stigma of wrongdoing carried by the conviction" of the major charge, and thus requested dismissal of the charge "or downward modification to a minor." (Dkt. 48 at ¶ 55.) She did not mention Vega in her initial three-page appeal; and in her secondary four-page appeal she mentioned Vega only once and without reference to retaliation. (See dkt. 48 at ¶¶ 54­56; see also dkt. 48 at Exhibit 5, Attachment B.) Smith does not provide evidence showing that she properly exhausted her claim that Vega had retaliated against her.1 The Court should therefore dismiss the Complaint and enter Judgment in favor of Vega. II. Smith's Failure to State a Retaliation Claim. A. Smith Did Not Engage in Protected Conduct.

Smith made an empirically false statement to correctional staff when she told Vega that she had not received legal mail on October 11, 2003. (See dkt. 48 at ¶¶ 41­42; see also dkt. 48 at Exhibit 3, Attachment C.) She does not dispute this fact, but once again asserts that she had simply been mistaken as to the date. (See dkt. 53 at 4:15­16.) Regardless of Smith's subjective intent, the objective fact remains that she presented false information to correctional staff in violation of ADC policy.2 Such conduct is not protected by the Constitution. Accordingly, when Vega issued a disciplinary ticket to
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In her Response, Smith claims that the issue of Vega's alleged retaliation was raised in the appeal process and that "[p]rison officials have been afforded ample time and several opportunities to deal with this matter." (Dkt. 53 at 11:14­19.) But the documents and "facts" to which she cites do not support these contentions. Furthermore, when asked if she had received her mail on October 11, 2003, Smith did not indicate that she was unsure, ask for additional time to respond, or state that she needed to review her legal documents. (See dkt. 48 at ¶¶ 43­44.)
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Smith for "Lying or Representing False or Misleading Information to Staff" (see dkt. 48 at ¶ 48), she did not violate a constitutional right. Accordingly, the Court should dismiss the Complaint and grant summary judgment in favor of Vega. B. Vega Did Not Act with a Retaliatory Motive.

Vega provided sworn testimony that she did not issue the disciplinary ticket with a retaliatory motive. (Dkt. 48 at Exhibit 3, ¶¶ 22­26.) In her attempt to refute Vega's evidence, Smith points to unsworn one-word responses to questions that she had propounded to CO-II Jacobs during the investigation of her disciplinary charge. (See dkt. 53 at 14.) Even if Jacobs' statement were admissible evidence,3 it would not create a material question of fact regarding Vega's motive. Jacobs' statement does not support the contention that Vega retaliated against Smith for engaging in constitutionally-protected conduct. Accordingly, the Court should dismiss the Complaint and grant summary judgment in favor of Vega. C. Vega's Action Did Not Chill Smith's Exercise of First Amendment Rights.

Vega provided evidence (inmate letters) showing that Smith has continued to pursue complaints about legal mail after receiving the disciplinary ticket from Vega. (See 17 dkt. 48 at ¶¶ 58­59; id. at Exhibit 5, Attachment A.) Smith acknowledges this fact (dkt. 53 18 at 15) and provides no admissible evidence to the contrary. Accordingly, the Court should 19 dismiss the Complaint and grant summary judgment in favor of Vega. 20 D. 21 Vega provided evidence demonstrating that she issued the disciplinary ticket to 22 Smith in order to correct Smith's behavior and to discourage her from providing false 23 information in the future that could divert ADC resources from productive activity to 24 25 26 The evidentiary problems with Jacobs' statement is addressed in Defendant's concurrently-filed Objections and Motion to Strike or Exclude Portions of Plaintiff's Statement of Facts.
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Vega's Action Advanced Legitimate Correctional Goals.

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unproductive activity. (See dkt. 48 at Exhibit 3, ¶ 25.) Correcting inmate behavior is a fundamental goal of incarceration. Beard v. Banks, 548 U.S. ___, ___, 126 S. Ct. 2578, 2588 (June 28, 2006) (Stevens, J. dissenting) ("Rehabilitation is undoubtedly a legitimate penological interest."). And the efficient use of prison resources enables prison officials to maintain institutional security and order. Cf. Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) (Prison officials have a legitimate penological interest in maintaining institutional security and preserving internal order and they must be given "wide-ranging deference in the adoptions and executions of policies and practices that in their judgment are needed to preserve such order and discipline."). Vega's action advanced legitimate correctional goals. (See dkt. 48 at Exhibit 4, ¶¶ 3­4, 9­11.) Accordingly, the Court should dismiss the Complaint and grant summary judgment in favor of Vega. III. Conclusion. For the reasons stated in her Motion for Summary Judgment (dkt. 47) and in this Reply thereto, Vega respectfully requests that the Court grant her motion and enter judgment in her favor. RESPECTFULLY SUBMITTED this 1st day of December 2006. TERRY GODDARD Attorney General /s Misty D. Guille MISTY D. GUILLE Assistant Attorney General Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on the next business day, I served the attached document and Notice of Electronic Filing by mail on the following, who is not a registered participant of the CM/ECF System: Karin Jean Smith, ADC # 86673 ASPC-PV Bldg 36-129 P.O. Box 3400 Goodyear, AZ 85338-0905 Plaintiff Pro Per /s Misty D. Guille
IDS04-0387/RM#G04-20893/976116

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