Free Statement - 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 STATEMENT OF FACTS IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT No. CV 04-00558-PHX-EHC (CRP)

Defendant Vega submits the following Statement of Facts in support of her Motion for Summary Judgment. 1. Karin Smith, ADC # 086673, is a convicted felon who was recommitted to

the Arizona Department of Corrections ("ADC") in March 2001. (Exhibit 1, Smith's Public Arizona Inmate Management System Report, at 1.) Smith has resided at the Arizona State Prison Complex ("ASPC")­Perryville/Santa Maria Unit since March 2002. (Id.) PROCEDURAL BACKGROUND 2. Smith filed her original Complaint on March 19, 2004. (Dkt. 1.) She sued

Correctional Sergeant Linda Vega, Correctional Captain William Smith, Deputy Warden

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Meegan Muse, and Attorney General Liaison Brian Schneider. (Id. at 2.)1 The Court's Screening Order dismissed Counts II, III, and IV, in which Smith alleged that the Defendants had "violated her due process rights during disciplinary hearings by: 1) refusing to call Plaintiff's witness at the disciplinary hearing; 2) refusing to overturn Plaintiff's disciplinary conviction and issuing an inadequate written decision on appeal; and 3) refusing to overturn Plaintiff's disciplinary conviction at the highest review level." (Dkt. 6 at 3.) 3. The Court's Screening Order required a response from Defendant Vega as to

Count I, in which Smith alleged that "Defendant Vega initiated a disciplinary complaint against her in retaliation for submitting a formal complaint about delays in receiving legal and regular mail." (Dkt. 6 at 4.) Specifically, Smith had alleged, "The defendant's report was retaliation against plaintiff for writing a complaint alleging possible problems with legal mail and problems with regular mail as well." (Dkt. 1 at 4, ¶ 4.) 4. Defendant Vega filed a motion to dismiss the retaliation claim on the ground

that Smith had failed to exhaust available administrative remedies. (Dkt. 8; see also dkt. 9­10.) The Court denied the motion, stating that Department Order 802 did not define what would constitute a "staff" issue or a "disciplinary" issue. (Dkt. 14.) It concluded: "The issue in dispute is whether Defendant filed the Disciplinary Report against Plaintiff in retaliation for Plaintiff's complaints regarding the handling of inmate mail. The dispute involves a `disciplinary issue.'" (Id.) 5. Smith was deposed on May 26, 2006. (Exhibit 2, Deposition of Karen Jean

Smith, at Title Page.) 6. Smith moved to file an amended complaint and lodged a proposed amended

complaint therewith on June 22, 2006. (Dkt. 37­38.) Soon thereafter, she moved to file a
1

Defendant's references to page numbers refer to the sequential numbering of the page and not to any hand-written or type-written page numbers.
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corrected motion and a corrected proposed amended complaint, both of which were lodged therewith. (Dkt. 42­44.) The Court reviewed Smith's corrected motion (dkt. 43) and the corrected Amended Complaint (dkt. 44). (See dkt. 45.) The Court granted Smith's motion to amend, stating that Count I of Smith's Amended Complaint made the same allegation as Count I of the original Complaint, i.e., "that Defendant Vega retaliated against Plaintiff for lodging a complaint against Defendant." (Dkt. 45.) 7. In the Amended Complaint, Smith claimed that she had taken the first step in

the grievance process by writing the Inmate Letter. (Dkt. 46 at 7.) When identifying her right that Vega allegedly violated, Smith stated, "Plaintiff's right to be free from retaliation for making a mail complaint under the First Amendment of the United States Constitution." (Id. at 4, ¶ 1.) Smith claimed that Vega's report caused her "to suffer major disciplinary sanctions which deterred [her] from her efforts to address complex mail issues." (Id. at 4, ¶ 4.) She sought "general damages" and punitive damages (dkt. 46 at 14) against Defendant Vega in both her individual and official capacities (id. at 2). The Amended Complaint did not request injunctive relief, as the original Complaint had. (See dkt. 1, 46.) ADC'S INMATE GRIEVANCE SYSTEM (DO-802) 8. ADC Department Order 802, Inmate Grievance System ("DO-802"), allows

inmates to use the grievance process for issues related to "[p]roperty, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (Exhibit 3, Declaration of Linda Vega, at Attachment A § 802.01(1.1.1).) Inmates may not use the inmate grievance system for classification, discipline issues, or any other system which has its own unique appeal process. (Id. at Attachment A § 802.01(1.2.3).) 9. DO-802.08 requires inmates to "attempt to resolve all issues informally"

before they file a formal grievance. (Id. at Attachment A § 802.08(1.1); see also id. at

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Attachment A § 802.09(1.1.1).) To attempt informal resolution, an inmate must submit an Inmate Letter to her assigned Correctional Officer-III ("CO-III") within ten workdays of the action that caused the complaint. (Id. at Attachment A § 802.08(1.1).) Within ten workdays of receiving the Inmate Letter, the CO-III must investigate the complaint and attempt informal resolve the matter. (Id. at Attachment A § 802.08(1.3).) The CO-III then provides the inmate with a written response. (Id.) 10. If this process does not resolve the complaint, then the inmate may submit a

formal Inmate Grievance that is subject to two to three levels of review, depending on the type of grievance. (See id. at Attachment A §§ 802.09­802.13.) 11. The standard grievance process works as follows: (1) an inmate must submit

an inmate letter to her assigned CO-III, attempting to informally resolve a complaint, within ten work days after she becomes aware of a specific problem; (2) if the inmate is not satisfied with the CO-III's response, she may file a formal grievance with her Grievance Coordinator within ten calendar days; (3) if the inmate is not satisfied with the Grievance Coordinator's response, she may file a grievance appeal within ten calendar days to a higher official (e.g., a Deputy Warden or Warden); and, (4) if the inmate is not satisfied with the response to his grievance appeal, she may appeal to the ADC Director within ten calendar days. (See id. at Attachment A § 802.09.) 12. Staff grievances are governed by DO-802.12. (See id. at Attachment A §

802.12.) Similar to standard grievances, an inmate must submit an inmate letter to her assigned CO-III within ten calendar days after the event at issue. (Id.) If the inmate is not satisfied with the CO-III's response, she may file a formal grievance with her Grievance Coordinator within ten days. (Id.) The Grievance Coordinator logs the grievance and forwards it to the Warden, Deputy Warden, or Administrator for review and response. (Id.) If the inmate wishes to appeal the response from the Warden, Deputy Warden or Administrator, she may appeal to the Director within ten days. (Id.)

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13.

The Director's response is final, thereby exhausting available administrative

remedies through ADC's Inmate Grievance System. (Id. at Attachment A §§ 802.09(1.4.4) & 802.12(1.2.4).) The expiration of time limits at any level in the process entitles the inmate to proceed to the next review level, unless the inmate agrees in writing to an extension. (Id. at Attachment A § 802.07(1.2.4).) 14. A copy of DO-802 is available for use by all inmates at all institutions and is

maintained in the inmate library. (Id. at Attach. A § 802.04(1.1).) 15. If an inmate believes that a staff member has retaliated against her, the

appropriate method for grieving that issue would be to follow the "staff grievance" procedure under Department Order 802.12. (Exhibit 4, Declaration of Sandra Walker, at ¶ 20.) The inmate could conceivably grieve such an issue through the "standard grievance" process under Department Order 802.09. (Id.) ADC'S INMATE DISCIPLINARY SYSTEM (IMP-103.3.1) 16. Internal Management Policy 103.3.1, Inmate Disciplinary System ("IMP-

103.3.1"), prescribes certain inmate conduct and authorizes ADC employees to file disciplinary reports when inmates engage in any of the prescribed conduct. (Exhibit 4 at ¶ 5.) 17. Some of the Group A Violations listed in IMP-103.3.1 are: sexual assault,

arson, taking a hostage or kidnapping, and possession or manufacture of dangerous contraband. (Exhibit 4 at ¶ 6.) 18. Some of the Group B Violations listed in IMP-103.3.1 are: · B03--Fighting · B05--Lying or presenting false or misleading information to staff, volunteers or others acting in official capacity · B08--Disobeying a verbal or written order, including Departmental and institutional rules, policies, procedures, memoranda or other directives · B09--Obstructing, hindering or impeding staff in the performance of their 5 Document 48

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duties · B12--Loss, destruction or damage of property · B13--Theft or possession of stolen property · B19--Gambling or possession of gambling paraphernalia · B21--Disorderly conduct (Exhibit 4 at ¶ 7.) 19. Some of the Group C Violations listed in IMP-103.3.1 are: horseplay,

feigning illness or malingering, failure to maintain personal hygiene or appearance requirements, littering, and "being in an unauthorized area, absence from assigned area or failure to report to an authorized area or destination." (Exhibit 4 at ¶ 8.) 20. The disciplinary appeal process under IMP-103.3.1 is not intended to

encompass any issues other than: (1) whether the disciplinary process was followed, (2) whether the facts support the findings, and (3) whether the sanctions are appropriate based on facts. (Exhibit 4 at ¶ 19.) 21. After an employee writes a Disciplinary Report, ADC policy requires that

the Shift Supervisor review it "for the appropriateness of the charge and content of the report." (Exhibit 4 at ¶ 13.) The report then goes to the Coordinator of Discipline (i.e., Disciplinary Coordinator), who may process the Disciplinary Report as a major or minor violation. (Id.) For minor violations, the Disciplinary Coordinator may dismiss the charge, resolve the matter informally, issue a verbal or written reprimand, or order various penalties. (Id.) For major violations, the Disciplinary Coordinator must ensure that the violation is investigated and prepare a packet for the Disciplinary Hearing Officer ("DHO"). (Id.) 22. The DHO may dismiss the charge, find the inmate not guilty, or find the

inmate guilty and impose penalties. (Exhibit 4 at ¶ 14.) When the DHO reaches a decision, he must forward the results to a higher official (e.g., Deputy Warden or Warden)

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for review. (Id.) The higher official must review all major Disciplinary Reports. (Id.) He may "approve, modify downward or disapprove the disciplinary action, or return the report to the DHO for additional information or reconsideration of the recommended action, or return the report to the DHO for additional information or reconsideration of the recommended action." (Id.) He shall ensure that "[t]he penalty imposed is proportionate to the charge and consistent with other similar actions." (Id.) 23. The inmate may appeal the DHO's decision. (Exhibit 4 at ¶ 15.) The

inmate must first appeal the DHO decision to the higher official (e.g., Deputy Warden or Warden) within five workdays of the disciplinary hearing. (Id.) On the Appeal of Disciplinary Charge, the inmate must specify her reason(s) for appeal, which may include the "due process requirement," the "adequacy of proof," and/or the "severity of penalty." (See Exhibit 5 at Attachment B.) The higher official then reviews the appeal--considering "only whether the disciplinary process was followed, some evidence was relied upon to support the findings, and the sanctions are appropriate based on the facts"--and provides a written response to the inmate and the DHO within 20 calendar days. (Id.) If the inmate is still dissatisfied, she may appeal the decision to the Central Office level (i.e., through the Director's Office) within five workdays. (Exhibit 4 at ¶ 16.) The Director or her designee then reviews the appeal--considering "the appeal's merits based upon whether the disciplinary process was followed, some evidence was relied upon to support the findings, and the sanctions are appropriate based on the facts"--and provides a written response to the inmate and the reviewing official at the previous step within 20 calendar days. (Id.) The Director's response is final, exhausting the inmate's available administrative remedies. (Exhibit 4 at ¶ 17.) 24. ADC provides a copy of IMP-103.3.1 and explains the disciplinary system to

all inmates at Reception Centers. (Exhibit 4 at ¶ 18.) Additionally, the Disciplinary Coordinator must provide a copy of the information to an inmate upon request. (Id.)

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25.

IMP-103.3.1 is one significant way that ADC maintains institutional security

and preserves order and discipline. (Exhibit 4 at ¶ 3.) 26. IMP-103.3.1 is also a useful tool that correctional staff may use to redirect

improper inmate behavior to positive behavior. (Exhibit 4 at ¶ 4.) 27. One reason that ADC will discipline inmates for "lying or presenting false or

misleading information to correctional staff" is that correctional staff will often take action as a result of information provided by inmates. (Exhibit 4 at ¶ 9.) Staff members often make decisions for operation or administrative action based on information shared by inmates, and when the information is erroneous, staff's actions or decisions may have a negative, instead of positive, impact. (Id.) 28. Another reason to discipline inmates for "lying or presenting false or

misleading information to correctional staff" is to ensure that the institution's resources are used efficiently. (Exhibit 4 at ¶ 10.) For instance, if an inmate reports that she is having problems receiving her legal mail, correctional staff should investigate the matter to determine if there is a problem. (Id.) Such an investigation may include the inmate's assigned Correctional Officer III, a Mail and Property Officer at the Complex mailroom and another at the Unit mailroom, and potentially the Captain. (Id.) Correctional staff would use their time to pull mail logs from the Complex mailroom and/or the Unit mailroom, to review the logs to determine whether the inmate had any incoming mail logged recently, and possibly to investigate the mailroom's procedures. (Id.) If all of this had occurred because the inmate provided erroneous information, ADC resources would be wasted. (Id.) On the other hand, if the inmate's information was accurate, the investigation should lead correctional staff to find and resolve the problem. (Id.) 29. In short, when inmates provide nonfactual information, ADC may spend

time and resources unproductively, which could negatively impact the safe and secure operation of the facility. (Exhibit 4 at ¶ 11.)

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FACTUAL BACKGROUND 30. In September 2003, Smith became concerned that ADC staff was

mishandling her legal mail, so she wrote an inmate letter dated September 29, 2003, directed to Vega, the prison complex mail and property supervisor. (Dkt. 46 at 7; see Exhibit 3 at Attachment B.) Smith placed the inmate letter in a box designated for such items. (Exhibit 2 at 15:5­25.) Smith wrote the September 29 inmate letter to in order to initiate the grievance process. (Dkt. 46 at 7; Exhibit 2 at 15:6­14.) 31. Smith did not receive a response to her September 29 inmate letter. (Dkt. 46

at 7; Exhibit 2 at 17:6­7.) 32. Several times in September and/or October 2003, Smith had approached

Vega about legal mail as Vega walked through the South Lobby. (Exhibit 3 at ¶ 5.) Each time, Vega advised her that she should follow ADC policy, specifically Department Order 802, by writing an Inmate Letter to her CO-III or possibly to the mailroom staff at her Unit. (Id.) 33. On October 28, 2003, Smith was working as an Administrative Porter in the

South Lobby of the main Complex building. (Exhibit 3 at ¶ 6; see also dkt. 46 at 7.) As Vega entered the South Lobby on that date, Smith approached her and asked about a kite, i.e., an Inmate Letter. (Exhibit 3 at ¶ 7; see also dkt. 46 at 7.) 34. Vega had not seen an Inmate Letter, so she asked Smith if she had written

the appropriate Inmate Letters to her CO-III or to mailroom staff. (Exhibit 3 at ¶ 7.) Smith stated that she had followed policy and had submitted an Inmate Letter, but had not received a response. (Id.) 35. Smith told Vega that she had not been receiving her legal mail for the

previous couple of months. (Exhibit 3 at ¶ 9.) 36. Vega was concerned because the mailroom staff is supposed to deliver legal

mail to inmates the same day that it arrives. (Exhibit 3 at ¶ 10.) If Smith had not been

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receiving her legal mail, it could indicate a problem in a number of areas: (1) the Complex mailroom may not have been properly receiving mail; (2) there could have been a problem with delivery of special mail from the Complex mailroom to the Santa Maria Unit and possibly to other units; or (3) the Santa Maria Unit may have had a problem getting special mail to inmates housed in that Unit. (Id.) Additionally, if Smith was not receiving legal mail, there was a possibility that other inmates were not receiving their legal mail. (Id.) 37. These concerns, and Smith's assurance that she had followed policy by

submitting an Inmate Letter, prompted Vega to investigate Smith's claim that she had not been receiving her legal mail. (Exhibit 3 at ¶ 11.) 38. While Vega was in the South Lobby, she called the Complex mailroom

officer responsible for legal mail to check his logs and to advise her if Smith had received any legal mail in the previous two months. (Exhibit 3 at ¶ 12.) Vega knew that this would take the officer some time, so she advised Smith that she would look into the inquiry further and she left the South Lobby. (Id.) 39. To further investigate Smith's mail concerns, Vega went to the Complex

Mail Room and looked at the mail logs which had been pulled for her, on which ADC staff maintains a list of special (i.e., legal or certified) mail sent to the particular units. (Exhibit 3 at ¶ 13; see also id. at ¶ 4.) Vega noted that Complex Mail had sent a piece of legal mail to the Santa Maria Unit for inmate Smith on October 11, 2003. (Id.) 40. Vega then contacted the mailroom officer on duty at the Santa Maria Unit,

Correctional Officer II ("CO-II") Folks. (Exhibit 3 at ¶ 14.) Vega called in order to find out if Smith had received her legal mail on October 11, 2003. (Id.) If Smith had not received it, Vega wanted to know why so that CO-II Folks could correct any problems at the Unit level. (Id.) 41. CO-II Folks stated that Smith had signed Santa Maria Unit's mail log

acknowledging receipt of a piece of legal mail on October 11, 2003. (Exhibit 3 at ¶ 15.)

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42.

Vega called CO-II Jacobs, the officer on duty at the South Lobby, and

instructed him to ask Smith if she had received her legal mail on October 11, 2003. (Exhibit 3 at ¶ 16.) While Vega remained on the line, CO-II Jacobs asked Smith if she had received her legal mail on October 11, 2003, and the only thing she said to him was "no." (Id.; dkt. 46 at 9; Exhibit 2 at 22:18­25, 23:1­15.) 43. Smith did not tell CO-II Jacobs that she needed to review her legal

documents. (Exhibit 2 at 33:4­13.) 44. At no time on October 28, 2003, did Smith tell Vega that she needed to look

at documents to confirm or verify the date in question. (Exhibit 2 at 33:14­17.) Nor did she ask for additional time to respond or indicate that she was unsure. (Exhibit 3 at ¶ 23.) 45. After hearing Smith's response to CO-II Jacobs, Vega believed that Smith

had presented false information to correctional staff in violation of ADC policy, but did not immediately issue a ticket because she wanted to verify that Smith had in fact received her mail on October 11, 2003. (Exhibit 3 at ¶ 17.) 46. CO-II Folks took a copy of the mail log to Vega at the Complex mailroom.

(Exhibit 3 at ¶ 18.) Vega saw that Smith had in fact signed for her legal mail on October 11, 2003. (Id.) Vega was absolutely sure at this point that Smith had presented false information to her earlier that day when she had advised Vega that she was not getting her legal mail. (Id.) 47. After Vega had seen Smith's signature acknowledging receipt of her legal

mail on October 11, Vega called CO-II Jacobs and instructed him to advise Smith that she was being placed on report. (Exhibit 3 at ¶ 19.) 48. Vega prepared the Inmate Disciplinary Report, Case No. 03-B04-1094, and

submitted it to the Shift Supervisor on the same day, October 28, 2003. (Exhibit 3 at ¶ 20.) The charge was B05--Lying or Representing False or Misleading Information to Staff. (Id.) Vega did not classify the charge as either a minor or major charge, and she did not

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have any input in the decision to classify Smith's violation as a major charge. (Id. at ¶ 21.) 49. After that, Vega's only involvement in this matter was to answer the

investigating officer's questions. (Exhibit 3 at ¶ 27.) No one else contacted Vega about Smith and Vega was not involved in her disciplinary hearing or any subsequent events. (Id.) 50. Vega followed IMP-103.3.1 when she issued the disciplinary ticket to Smith

on October 28, 2003. (Exhibit 3 at ¶ 24.) She wrote the disciplinary report because Smith had violated an ADC regulation when she told Vega that she had not received legal mail on October 11, 2003. (Id. at ¶ 23.) Vega's intent in issuing the ticket was to correct Smith's behavior and to discourage her from providing false information in the future that could divert ADC resources from productive activity to unproductive activity. (Id. at ¶ 25.) 51. Vega did not write the disciplinary ticket in order to retaliate against Smith.

(Id. at ¶ 26.) And she did not write the disciplinary ticket in an attempt to deter Smith from pursuing legitimate mail complaints. (Id.) 52. Had Smith been truthful, Vega would not have written the Disciplinary

Report. (Exhibit 3 at ¶ 22.) Instead, Vega would have continued the investigation to determine why Smith (and possibly other inmates) had not received legal mail recently. (Id.) 53. Smith's charge was investigated by Sgt. Mendoza, the Disciplinary

Coordinator, who informed her that she was being charged with a major violation. (Exhibit 2 at 26:9­14; see also dkt. 46 at 11.) 54. In Smith's case, the Disciplinary Hearing Officer found her guilty of the

disciplinary charge, stating `I am persuaded by the evidence that it is more likely true than not that inmate committed the violation CO's report that inmate Smith provided misleading information to Sgt. Vega.'" (Dkt. 46 at 12.) Soon thereafter, she appealed the

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DHO's decision to the next level. (Exhibit 5, Declaration of Susan George, at Attachment B.) She completed a form entitled "Appeal of Disciplinary Charge," listing her reasons as "due process requirement" and "adequacy of proof." (Id.) The specific issues that Smith appealed were: (1) the withdrawal of her "`C' clearance," which effectively removed her from a skilled working position; (2) the DHO's withholding of particular evidence at the disciplinary hearing; and (3) the ADC's finding of guilt without evidence that Smith had acted intentionally, purposefully, or knowingly. (Id.) Nowhere in her three-page appeal did she mention Defendant Vega. (Id.) 55. At the next stage of appeal--to the Director's level--the substance of

Smith's appeal was again based on the due process requirement and the adequacy of proof. (Exhibit 2 at 32:6­9 & 23­25, 33:1­3.) She stated in her "Appeal of Disciplinary Charge" dated December 1, 2003, that she appealed the previous response because: (1) the DHO had violated policy by excluding witness statements at the hearing; (2) ADC refused to accept proof of Smith's honesty; (3) ADC was not interested in fairness, but only in "what convicts"; and (4) the proceedings were unfair. (Exhibit 5 at Attachment B.) She concluded her appeal by stating: "I am undeserving of the stigma of wrongdoing carried by the conviction of this charge. The totality of the circumstances and evidence introduced by the inmate warrant a dismissal, or downward modification to a minor, of this case." (Id.) (Emphasis added). 56. Although Smith did mention Vega, she did not assert that Vega's actions

were retaliatory: The D.W. then outlines what should of transpired. Sgt. Vega was responsible for referring me to my COIII or the B04 Mail and Property Officer by responding to my kite. She had the required 20 working days to do so. . . . I contend that it was appropriate to ask the Sgt about this matter informally under DO 916.01 sect. 1.6. If Sgt. Vega did not wish to speak to me, she could have said so. What she chose to do instead was to start an impromptu inquiry after she left complex by questioning me through the lobby officer.

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(Exhibit 5 at Attachment B.) This was Smith's entire reference to Vega in her four-page appeal. (Id.) 57. Smith thus appealed her disciplinary action to the highest possible level.

(Dkt. 46 at 13.) 58. Smith submitted twenty-seven Inmate Letters between October 28, 2003, and

September 13, 2005. (Exhibit 5 at ¶ 3.) Four of those Inmate Letters expressly addressed concerns regarding mail: a. In Inmate Letter dated September 21, 2004, Smith complained about

the inspection of her outgoing legal mail, and asked that legal-mail handling procedures be posted at the Unit. (Exhibit 5 at Attachment A.) b. In Inmate Letter dated November 21, 2004, Smith complained that

she had received her outgoing mail (addressed to her "power-of-attorney") as incoming mail. (Exhibit 5 at Attachment A.) c. In Inmate Letter dated January 4, 2005, Smith addressed the

Grievance Coordinator and stated "I am attempting to informally resolve the following problem . . ." -- she then complained that postage stamps had been unavailable since mid-December. (Exhibit 5 at Attachment A.) In the subject line, Smith wrote, "Informal Resolution -- 1st Amendment Rights Violation -- The right to communicate." (Id.) d. In Inmate Letter dated January 14, 2005, Smith complained that

incoming mail address requirements had changed but the policy change had never been posted. (Exhibit 5 at Attachment A.) 59. Two of Smith's Inmate Letters submitted after October 28, 2003, contained

the language, "I am attempting to informally resolve the following problem. . . ." (Exhibit 5 at Attachment A, Inmate Letters dated January 1, 2005, and March 16, 2005.) 60. Smith did not file any grievances regarding her claim that Vega had

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retaliated against her. (Exhibit 2 at 34:8­11.) RESPECTFULLY SUBMITTED this 28th day of August 2006. TERRY GODDARD Attorney General /s Misty D. Guille MISTY D. GUILLE Assistant Attorney General Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on the next 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#G04-20893/969190

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