Free Motion for Summary Judgment - 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 MOTION FOR SUMMARY JUDGMENT No. CV 04-00558-PHX-EHC (CRP)

Defendant Vega, through undersigned counsel, moves for summary judgment under Fed. R. Civ. P. 56, for the reasons stated in the following Memorandum of Points and Authorities and in the concurrently-filed Statement of Facts ("SOF"). MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Karin Smith is a convicted felon who was recommitted to the Arizona Department of Corrections ("ADC") in March 2001. (SOF ¶ 1.) Smith has resided at the Arizona State Prison Complex ("ASPC")­Perryville/Santa Maria Unit since March 2002. (Id.)

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A.

Procedural Background.

Smith filed her original Complaint on March 19, 2004. (SOF ¶ 2.) She sued Correctional Sergeant Linda Vega, Correctional Captain William Smith, Deputy Warden Meegan Muse, and Attorney General Liaison Brian Schneider. (Id.) 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." (Id.) The Court did require 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." (SOF ¶ 3.) 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." (Id.) Defendant Vega filed a motion to dismiss the retaliation claim on the ground that Smith had failed to exhaust available administrative remedies. (SOF ¶ 4.) The Court denied the motion. (Id.) Smith was deposed on May 26, 2006. (SOF ¶ 5.) About one month later, she moved to file an amended complaint and lodged a proposed amended complaint therewith. (SOF ¶ 6.) Soon thereafter, she moved to file a corrected motion and a corrected proposed amended complaint, both of which were lodged therewith. (Id.) The Court reviewed Smith's corrected motion and the corrected Amended Complaint. (Id.) 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." (Id.)

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In the Amended Complaint, Smith claimed that she had taken the first step in the grievance process by writing the Inmate Letter. (SOF ¶ 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.) 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.) She sought general and punitive against Defendant Vega in both her individual and official capacities, but did not request injunctive relief as she originally had. (Id.) B. ADC's Inmate Grievance System.

ADC Department Order 802, Inmate Grievance System, allows inmates to use the grievance process for issues related to staff, mail, and conditions of confinement, among other things. (SOF ¶ 8.) Under the grievance policy, inmates are required to informally resolve their issue by submitting an Inmate Letter to their assigned Correctional Officer-III ("CO-III") before they submit a formal grievance. (SOF ¶ 9.) 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 (SOF ¶ 10), as described in Section II(B)(1) below. All inmates have access to this policy. (SOF ¶ 14.) C. ADC's Inmate Disciplinary System.

ADC's Internal Management Policy 103.3.1, Inmate Disciplinary System ("IMP103.3.1"), prescribes certain inmate conduct and authorizes ADC employees to file disciplinary reports when inmates engage in any of the prescribed conduct. (SOF ¶ 16.) The prohibited conduct ranges from littering to kidnapping. (SOF ¶¶ 17­19.) Included among the "Group B Violations" listed in IMP-103.3.1 are: lying or presenting false or misleading information to staff, volunteers or others acting in official capacity; loss, destruction or damage of property; theft or possession of stolen property; gambling or possession of gambling paraphernalia; and disorderly conduct. (SOF ¶ 18.) ADC provides

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a copy of IMP-103.3.1 and explains the disciplinary system to all inmates at Reception Centers, and the Disciplinary Coordinator must provide a copy upon request. (SOF ¶ 24.) 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." (SOF ¶ 21.) The report then goes to the Disciplinary Coordinator, who may process the Disciplinary Report as either 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 Coordinator of Discipline must ensure that the violation is investigated and prepare a packet for the Disciplinary Hearing Officer ("DHO"). (Id.) The DHO may dismiss the charge, find the inmate not guilty, or find the inmate guilty and impose penalties. (SOF ¶ 22.) When the DHO reaches a decision, he must forward the results to a higher official (e.g., Deputy Warden or Warden) for review. (Id.) The higher official must review all major Disciplinary Reports and "approve, modify downward or disapprove the disciplinary action, or return the report to the DHO for additional information or reconsideration of the recommended action." (Id.) The official shall ensure that "[t]he penalty imposed is proportionate to the charge and consistent with other similar actions." (Id.) Inmates may appeal the DHO's decision, as described further in Section II(B)(2) below. (See SOF ¶ 23.) D. Factual Background.

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. (SOF ¶ 30.) Although she wrote the September 29 inmate letter in order to initiate the grievance process (id.), she did not receive a response (SOF ¶ 31).

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Several times in September and/or October 2003, Smith had approached Vega about legal mail as Vega walked through the South Lobby. (SOF ¶ 32.) 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.) On October 28, 2003, Smith was working as an Administrative Porter in the South Lobby of the main Complex building. (SOF ¶ 33.) As Vega entered the South Lobby on that date, Smith approached her and asked about an Inmate Letter. (Id.) Vega had not seen an Inmate Letter, so she asked Smith if she had written the appropriate letters to her CO-III or to mailroom staff. (SOF ¶ 34.) Smith stated that she had followed policy and had submitted an Inmate Letter, but had not received a response. (Id.) Smith told Vega that she had not been receiving her legal mail for the previous couple of months. (SOF ¶ 35.) Vega was concerned because the mailroom staff is supposed to deliver legal mail to inmates the same day that it arrives. (SOF ¶ 36.) If Smith had not been 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.) 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. (SOF ¶ 37.) 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. (SOF ¶ 38.) Vega knew that this would take the officer some time, so she advised Smith that she would look into the inquiry further

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and she left the South Lobby. (Id.) 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. (SOF ¶ 39.) 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.) Vega then contacted the mailroom officer on duty at the Santa Maria Unit, CO-II Folks, in order to find out if Smith had received her legal mail on October 11, 2003. (SOF ¶ 40.) 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.) 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. (SOF ¶ 41.) 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. (SOF ¶ 42.) 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.) She did not say that she needed to review her legal documents. (SOF ¶ 43, 44.) She did not ask for additional time to respond. (SOF ¶ 44.) She did not indicate that she was unsure. (Id.) 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. (SOF ¶ 45.) CO-II Folks took a copy of the mail log to Vega at the Complex mailroom, and Vega saw that Smith had in fact signed for her legal mail on October 11, 2003. (SOF ¶ 46.) 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.) Vega called CO-II Jacobs and instructed him to advise Smith that she was being placed on report. (SOF ¶ 47.) Vega prepared the Inmate

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Disciplinary Report, Case No. 03-B04-1094, and submitted it to the Shift Supervisor on the same day, October 28, 2003. (SOF ¶ 48.) 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 have any input in the decision to classify Smith's violation as a major charge. (Id.) After writing the report, Vega's only involvement in this matter was to answer the investigating officer's questions. (SOF ¶ 49.) No one else contacted her about Smith and she was not involved in her disciplinary hearing or any subsequent events. (Id.) Smith's charge was investigated by Sgt. Mendoza, the Disciplinary Coordinator, who informed her that she was being charged with a major violation. (SOF ¶ 53.) The DHO then found Smith guilty (SOF ¶ 54) and she appealed to the highest level (SOF ¶ 54­57). (See discussion at Section II(B) below.) Even after Smith received the disciplinary ticket from Vega, she continued to use ADC's Inmate Grievance System. (See SOF ¶ 57.) Between October 28, 2003, and September 13, 2005, Smith submitted twenty-seven Inmate Letters, four of which expressly addressed concerns regarding mail. (SOF ¶ 58.) She complained about the inspection of her outgoing legal mail, and asked that legal-mail handling procedures be posted at the Unit. (Id.) She complained that she had received her outgoing mail (addressed to her "power-of-attorney") as incoming mail. (Id.) She complained that incoming mail address requirements had changed but the policy change had never been posted. (Id.) And she complained that postage stamps had been unavailable since midDecember. (Id.) Two of Smith's Inmate Letters submitted after October 28, 2003, contained the language, "I am attempting to informally resolve the following problem. . . ." (SOF ¶ 59.) II. LEGAL ARGUMENT A. Summary Judgment Standard

25 The Court must grant summary judgment if the pleadings and supporting 26

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documents, 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. at 2548, 2552 (1986). Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322­23, 106 S. Ct. at 2552. Conclusory allegations and speculation are not sufficient to create a factual dispute for purposes of summary judgment. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) ("Sweeping conclusory allegations will not suffice to prevent summary judgment."); Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995) (finding that inmate's speculation that officials may read his mail in violation of prison policy did not create a factual dispute). B. Smith's Lawsuit Is Barred Because She Failed to Exhaust Available Administrative Remedies as to Her § 1983 Retaliation Claim Against Vega.1

The Prison Litigation Reform Act of 1996 ("PLRA") (codified as amended at 42 U.S.C. § 1997e) provides: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "The PLRA attempts to eliminate unwarranted federalcourt interference with the administration of prisons, and thus seeks to `affor[d] corrections officials time and opportunity to address complaints internally before allowing the As described in the Procedural Background in Section I(A), Defendant had previously filed a motion to dismissed based on Smith's failure to exhaust. The Court denied that motion, however, stating that Department Order 802 did not define what would constitute a "staff" issue or a "disciplinary" issue. (SOF ¶ 4.) 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.) Defendant believes that the additional evidence included with this motion demonstrates that Smith did not exhaust administrative remedies as to her claim of retaliation.
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initiation of a federal case.'" Woodford v. Ngo, 548 U.S. ___, 126 S. Ct. 2378, 2387 (June 22, 2006) (quoting Porter v. Nussle, 534 U.S. 516, 525, 122 S. Ct. 983, 988 (2002)). Accordingly, exhaustion is mandatory. Porter, 534 U.S. at 522, 122 S. Ct. at 987; Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825 n.6 (2001). And "proper exhaustion" requires that an inmate comply with the prison's "deadlines and other critical procedural rules." Woodford, 548 U.S. at ___, 126 S. Ct. at 2386. 1. ADC's Inmate Grievance System.

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." (SOF ¶ 8.) Inmates may not use the inmate grievance system for classification, discipline issues, or any other system which has its own unique appeal process. (Id.) A copy of DO-802 is available for use by all inmates at all institutions and is maintained in the inmate library. (SOF ¶ 14.) 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 DO-802.12. (SOF ¶ 15.) The inmate could also conceivably grieve such an issue through the "standard grievance" process under DO-802.09. (Id.) a. Standard Grievance.

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 the 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

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with the response to her grievance appeal, she may appeal to the ADC Director within ten calendar days. (SOF ¶ 11.) The Director's response is final, thereby exhausting available administrative remedies through the ADC's Inmate Grievance System for standard grievances. (SOF ¶ 13.) Expiration of the time limit at any level in the process entitles the inmate to proceed to the next review level. (Id.) b. Staff Grievance.

Staff grievances are governed by DO-802.12. (SOF ¶ 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 the Grievance Coordinator within ten days. (Id.) The Grievance Coordinator logs the grievance and forwards it to a higher official (e.g., a Deputy Warden or Warden) for review and response. (Id.) If the inmate wishes to appeal the higher official's response, she may appeal to the Director within ten days. (Id.) The Director's response is final, thereby exhausting available administrative remedies through the ADC's Inmate Grievance System for staff grievances. (SOF ¶ 13.) Expiration of the time limit at any level in the process entitles the inmate to proceed to the next review level. (Id.) c. Smith Did Not Submit a Grievance Through ADC's Inmate Grievance System Addressing a Retaliation Claim Against Vega.

Smith did not submit any grievances regarding her claim that Vega had retaliated against her. (SOF ¶ 60.) 2. ADC's Inmate Disciplinary System -- Appeals.

The disciplinary appeal process under Internal Management Policy 103.3.1, Inmate Disciplinary System ("IMP-103.3.1"), is intended to encompass only three issues: (1) whether the disciplinary process was followed, (2) whether the facts support the findings, and (3) whether the sanctions are appropriate based on facts. (SOF ¶ 20.) To appeal the

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DHO's decision, the inmate must first appeal to a higher official, such as the Warden or Deputy Warden. (SOF ¶ 23.) 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." (Id.) The 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 twenty 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). (SOF ¶ 23.) 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 previous reviewing official within 20 calendar days. (Id.) The Director's response is final, exhausting the inmate's available administrative remedies. (Id.) ADC provides a copy of IMP-103.3.1 and explains the disciplinary system to all inmates at Reception Centers. (SOF ¶ 24.) Additionally, the Disciplinary Coordinator must provide a copy of the information to an inmate upon request. (Id.) a. Smith's Disciplinary Appeal Did Not Address a Retaliation Claim Against Vega.

In Smith's case, the Disciplinary Hearing Officer found her guilty of the disciplinary charge. (SOF ¶ 54.) Soon thereafter, she appealed the DHO's decision to the 22 next level by completing a form entitled "Appeal of Disciplinary Charge." (Id.) She 23 challenged the DHO's decision based on the "due process requirement" and the "adequacy 24 of proof." (Id.) Smith specifically challenged on appeal: (1) the withdrawal of her "`C' 25 clearance," which effectively removed her from a skilled working position; (2) the DHO's 26

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withholding of 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.) 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. (SOF ¶ 55.) 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. (SOF ¶ 55.) Smith 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.) Although Smith mentioned Vega in the second appeal, 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. (SOF ¶ 56.) This was Smith's entire reference to Vega in her four-page appeal. (Id.) 3. Smith Failed to Exhaust Available Administrative Remedies as to Her Retaliation Claim Against Vega.

Smith did not file any grievances through ADC's Inmate Grievance System regarding her claim that Vega had retaliated against her. (See SOF ¶ 60.) And her appeal of the disciplinary charge did not indicate that she believed Vega had retaliated against her. (SOF ¶ 54­56.) Consequently, contrary to the intent and purpose of the PLRA, ADC did

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not have an opportunity to resolve such a claim before Smith filed this lawsuit. See Woodford, 126 S. Ct. at 2387­8. Accordingly, because Smith failed to exhaust available administrative remedies regarding her claim of retaliation against Vega, the Court should grant summary judgment to Defendant. C. Defendant Vega In Her Official Capacity Is Not a "Person" Subject to Suit Under 42 U.S.C. § 1983.

State officials acting in their official capacities are not "persons" subject to suit under 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. 9 Ct. 2304, 2312 (1989). Additionally, the Eleventh Amendment bars this suit against Vega 10 in her official capacity because any liability would be paid from public funds in the state 11 treasure. Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1355­56 (1974). 12 Accordingly, the Court should grant summary judgment to Vega in her official 13 capacity. 14 D. 15 To succeed on a First-Amendment-retaliation claim, Smith must prove that: (1) 16 Defendant Vega took some adverse action against Smith (2) because of (3) Smith's 17 protected conduct, and that such action (4) chilled Smith's exercise of her First 18 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 19 goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). This Court "should 20 `afford appropriate deference and flexibility' to prison officials in the evaluation of 21 proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt v. 22 Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 115 23 S. Ct. 2293 (1995)). 24 The Court must grant summary judgment here because Smith has not presented 25 evidence sufficient to raise a question of material fact as to four of the five elements. 26 Smith Cannot Prove Her Retaliation Claim.

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1.

Smith Did Not Engage in Protected Conduct.

Smith's only conduct resulting in a disciplinary charge was making an empirically false statement to correctional staff. Vega issued the disciplinary ticket for the simple that reason alone. (SOF ¶ 50­51.) Had Smith been truthful, Vega would not have written the Disciplinary Report. (SOF ¶ 52.) The Constitution does not protect Smith's conduct here. Accordingly, the Court must enter summary judgment in favor of Defendant Vega. 2. Vega Did Not Issue the Disciplinary Ticket With a Retaliatory Motive.

Even if Smith could show that she had engaged in protected conduct, she could not demonstrate that Vega retaliated against her for it. 10 Vega issued the disciplinary ticket for the simple reason that Smith had provided 11 false information to correctional staff in violation of ADC regulation. (SOF ¶ 50.) Had 12 Smith been truthful, Vega would not have written the Disciplinary Report. (SOF ¶ 52.) 13 Vega's intent in issuing the ticket was to correct Smith's behavior and to discourage her 14 from providing false information in the future that could divert ADC resources from 15 productive activity to unproductive activity. (SOF ¶ 50.) Her intent was not to retaliate 16 against Smith for any reason or to deter her from pursuing legitimate mail complaints. 17 (SOF ¶ 51.) 18 Although Smith claims that Vega's report caused her "to suffer major disciplinary 19 sanctions which deterred [her] from her efforts to address complex mail issues" (SOF ¶ 7), 20 her claim is untenable. Vega did not know that the disciplinary charge would be handled 21 as a major, and she had no input into classifying it as such. (SOF ¶ 48.) Even if Smith 22 could show that she had been deterred as a result of receiving major disciplinary sanctions 23 (see next section), she could not show that Vega had intended and as much. To do so, 24 Smith would have to demonstrate that Vega had anticipated that: (1) the Shift Supervisor 25 would determine that the disciplinary report was appropriate; (2) the Disciplinary 26

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Coordinator would choose to process the charge as a major violation instead of a minor violation; (3) the DHO would find Smith guilty--instead of dismissing the charge or finding her not guilty; (4) the DHO would impose the penalties that Smith ultimately received; (5) the reviewing higher official (e.g., Warden or Deputy Warden) would approve the disciplinary action--instead of modifying downward or disapproving the disciplinary action or returning the report to the DHO for additional information or reconsideration of the recommended action; and (6) that the Director or her designee would find that the sanctions were appropriate based on the facts. (See SOF ¶¶ 21­23.) Accordingly, the Court must enter summary judgment in favor of Vega. 3. Vega's Action Did Not Chill Smith's Exercise of Her First Amendment Rights.

Smith has not provided any evidence that her First Amendment rights were chilled as a result of Vega's action. And, in fact, she was not deterred from pursuing complaints 13 about her legal mail. Between November 4, 2003, and September 13, 2005, Smith 14 submitted twenty-seven Inmate Letters, four of which related to mail issues. (SOF ¶ 58.) 15 Among Smith's Inmate Letters were two that contained the language required to initiate 16 informal resolution before submitting a formal grievance. (SOF ¶ 59.) 17 Additionally, Smith has not provided evidence that Vega's action would "chill or 18 silence a person of ordinary firmness from future First Amendment activities." See 19 Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 20 1999) (in context of political speech) (quoting Crawford-El v. Britton, 93 F.3d 813, 826 21 (D.C. Cir. 1996), vacated on other grounds, 520 U.S. 1273, 117 S. Ct. 2451 (1997)). 22 Accordingly, the Court must enter summary judgment in favor of Defendant Vega. 23 24 25 26 4. Vega's Action Reasonably Advanced a Legitimate Correctional Goal.

Prison officials have a legitimate penological interest in maintaining institutional security and preserving internal order, and they must be given "wide-ranging deference in

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the adoptions and executions of policies and practices that in their judgment are needed to preserve such order and discipline." Bell v. Wolfish, 441 U.S. 520, 546-47 (1979). One significant way that ADC maintains institutional security and preserves order and discipline is through Internal Management Policy 103.3.1, Inmate Disciplinary System. (SOF ¶ 25.) IMP-103.3.1 is also a useful tool that correctional staff may use to redirect improper inmate behavior to positive behavior. (SOF ¶ 26.) This system prescribes certain inmate conduct and authorizes ADC employees to file disciplinary reports when inmates engage in any of the prescribed conduct. (SOF ¶ 16.) The prohibited conduct ranges from littering to kidnapping. (SOF ¶¶ 17­19.) 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. (SOF ¶ 27.) 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.) 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. (SOF ¶ 28) 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 CO-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

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inmate's information was accurate, the investigation should lead correctional staff to find and resolve the problem. (Id.) 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. (SOF ¶ 29.) When Vega issued the disciplinary ticket, she was trying to correct Smith's behavior and discourage her from providing false information in the future that could divert ADC resources from productive activity to unproductive activity. (SOF ¶ 50.) In other words, Vega was acting reasonably to advance legitimate correctional goals. Accordingly, the Court should grant summary judgment to Vega. II. CONCLUSION. Because Smith fails to show that a material question of fact exists, the Court must grant summary judgment to Defendant Vega. 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#G04-20893/942642

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