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

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Terry Goddard Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA EDDIE HATCH, No. CV 04-0541 PHX JWS (MS) Plaintiff, v. TERRY STEWART, et al., Defendants. Defendants1, by and through undersigned counsel, pursuant to Rule 56, Federal Rules of Civil Procedure, and LRCiv Rule 56.1, do hereby move this court to grant their Motion for Summary Judgment, dismissing Plaintiff's action in its entirety. Plaintiff fails to state a claim as a matter of law as to the served Defendants. Further, Plaintiff's claims against several of the served Defendants have not been exhausted, and so must be dismissed. Finally, Defendants are entitled to Eleventh Amendment and Qualified DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

immunity. Defendants' Motion is supported by the following Memorandum of Points and Authorities.

Terry Stewart, Thomas Lutz, Jim Taylor, Ronolfo Macabuhay, Ronald Lawrence, Harold E. Whitney, Bruce E. Kanter, Jimmy Zapien, Vickie Hunt, Faith Lee, Kelly Whiting, and A. Putnam.
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RESPECTFULLY SUBMITTED this 19th day of January, 2006. Terry Goddard Attorney General

Susanna C. Pineda Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES RELEVANT FACTS At the time of the incidents complained of, Plaintiff Eddie Hatch ("Plaintiff"), ADC #040402, was an inmate in the custody of the Arizona Department of Corrections ("ADC"). (Defendants' Statement of Facts in Support of Motion for Summary Judgment
("SOF") at ¶ 1.) Plaintiff was released from ADC in March 2004, and is currently

incarcerated in a federal prison in Atwater, California. (Id.) On March 17, 2004, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 ("§ 1983"). (SOF at ¶ 2.) In Count I of his Complaint, Plaintiff alleges that Defendants Dr. Macabuhay, Dr. Whitney and Dr. Kanter were deliberately indifferent to his medical needs when they refused to send him to an outside specialist for his back pain. (SOF at ¶ 3.)

Plaintiff further alleges that Defendants Stewart, Lutz and Taylor were also deliberately indifferent to his medical needs because they did not expedite his requests for outside medical referrals and surgery. (Id.) In Count II of his Complaint, Plaintiff alleges that Defendants Zapien and Hunt were deliberately indifferent to his medical needs when they refused to serve him meals in his cell. (SOF at ¶ 4.) Plaintiff further asserts that

Defendants Zapien and Hunt retaliated against him for seeking medical treatment. (Id.) In Count III of his Complaint, Plaintiff alleges that he fell down the stairs because Defendants 2

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Lawrence, Putnam, Whiting and Lee were deliberately indifferent to his medical needs when they allegedly failed to follow medical orders providing that Plaintiff be housed in a lower bunk located in a lower-tier cell following his return from back surgery. (SOF at ¶ 5.) Plaintiff began complaining of back pain in January 2002. (SOF at ¶ 6.) Plaintiff admits that he has a history of back pain and that he has undergone two previous back surgeries. (Id.) Plaintiff asserts that, based on his past experience, he believed that he required an outside specialist and additional back surgery to resolve his back pain. (Id.) Plaintiff immediately requested that ADC medical providers send him to an outside specialist. (Id.) Plaintiff's ADC medical providers began treating his back pain

conservatively, with rest and pain medications. (Id.) When this conservative treatment did not alleviate Plaintiff's condition, ADC medical providers ordered x-rays, an MRI, and an outside orthopedic surgery consultation for Plaintiff. (Id.) In April 2002, Plaintiff wrote a letter to Deputy Warden Haley stating that he believed his medical care was inadequate and that he would engage in a hunger strike until he was sent to an outside specialist. (SOF at ¶ 7.) Deputy Warden Haley responded that Plaintiff was scheduled for an MRI in the near future and that ADC was attempting to treat Plaintiff's condition as quickly as possible. (Id.) Plaintiff admits that he saw an outside specialist and underwent back surgery in June 2002. (Id.) On December 9, 2003, Plaintiff initiated the Inmate Grievance System regarding the back pain he suffered and the treatment he received in 2002. (SOF at ¶ 8.) Plaintiff pursued this issue through the Director level of the grievance process. (SOF at ¶ 8.) On December 9, 2003, Plaintiff also wrote an Inmate Letter to Deputy Warden Haley complaining that on March 17, 2002, he fell in his cell and was taken to medical. (SOF at ¶ 9.) Plaintiff claims that when he returned from medical Defendant Zapien 3

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ordered Defendant Hunt to "write [him] up" for lying and faking an injury. (Id.) ADC has no record that Plaintiff was ever disciplined in March 2002 and Plaintiff has provided Defendants with no such record. (SOF at ¶ 9.) Plaintiff further asserts that on March 18, 2002, Defendant Zapien refused to serve him his meals in his cell despite the fact that Plaintiff had a medical "lay-in" confining him to his cell for all activities, including meals. (SOF at ¶ 10.) Plaintiff's medical lay-in expired on March 18, 2002 and was renewed by Plaintiff's ADC medical providers on March 21, 2002. (Id.) Plaintiff did not pursue this matter any further through the grievance process. (Id.) Plaintiff underwent back surgery on June 28, 2002. (SOF at ¶ 11.) Plaintiff returned to ASPC-Lewis on July 8, 2002. (Id.) Upon his arrival at the Morey Unit, Plaintiff was taken to the count movement office for his cell assignment. (Id.) Defendant Lee was the count movement officer on duty. (Id.) None of the officers on duty knew that Plaintiff had just returned from back surgery and Plaintiff did not inform them of this fact. (SOF at ¶ 12.) Pursuant to federal regulations, only ADC medical providers and inmates possess information regarding an inmate's medical condition and treatment. (Id.) If an inmate suffers from a medical condition that requires special accommodations, it is the inmates's responsibility to inform ADC staff and provide them with copies of medical waivers authorizing special accommodations. (Id.) Plaintiff did not inform ADC staff that he had just returned from back surgery, and he did not show any medical waivers to Defendant Lee. (SOF at ¶ 13.) Defendant Lee checked the AIMS system and noted that Plaintiff's medical waiver for a lower bunk in a lower-tier cell had expired in May 2002. (Id.) No current medical waivers were listed in Plaintiff's AIMS report at that time. (Id.) Defendant Lee assigned Plaintiff to an upper bunk in a second-tier cell. (SOF at ¶ 14.) Plaintiff did not object to this housing assignment. (Id.)

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Plaintiff failed to report to his newly assigned second-tier cell. (SOF at ¶ 15.) Instead, Plaintiff returned to the lower-tier cell that he had occupied prior to his back surgery. (Id.) When formal count was conducted later that day, Plaintiff was found in the wrong cell. (Id.) Defendant Lawrence ordered Defendants Whiting and Putnam to escort Plaintiff to his assigned cell. (Id.) After he escorted Plaintiff to his assigned cell,

Defendant Putnam called Defendant Lawrence and informed him that Plaintiff had told him that he had recently undergone back surgery and then showed him a medical waiver, or Special Needs Order ("SNO"), for a lower bunk in a lower-tier cell. (SOF at ¶ 16.) No lower bunks in lower-tier cells were available in the cell block at that time. (SOF at ¶ 17.) Defendant Lawrence was concerned that if he moved Plaintiff to another cell block it might exacerbate Plaintiff's medical condition. (Id.) Defendant Lawrence had Defendant Putnam ask Plaintiff if he could remain in the current cell for the evening. (SOF at ¶ 18.) Defendant Lawrence also entered a lay-in order requiring that Plaintiff be served breakfast in his cell. (Id.) They would move him to a more appropriate cell thereafter. (Id.)

Plaintiff agreed and remained in the second-tier cell that evening. (Id.) The following morning, in direct violation of Defendant Lawrence's lay-in order, Plaintiff left his cell and proceeded to breakfast with the other inmates. (SOF at ¶ 19.) Plaintiff fell down the stairs and appeared to be unconscious. (Id.) When he regained consciousness, Plaintiff complained that he could not move his legs. (SOF at ¶ 20.) Plaintiff was air evacuated to a hospital for treatment consistent with standard ADC procedures. (Id.) A subsequent investigation into the incident was conducted and other inmates interviewed stated that Plaintiff had staged the accident to create grounds for a lawsuit. (SOF at ¶ 21.) On July 15, 2002, Plaintiff sent an Inmate Letter to Deputy Warden Haley complaining that he was not placed back in the same cell he was housed in prior to his 5

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back surgery. (SOF at ¶ 22.) Plaintiff also complained that, upon his return to the cell block after falling down the stairs on July 9, 2002, he was assigned to a different lower-tier cell than the one he had occupied prior to his back surgery. (Id.) Plaintiff's sole concern was that he be provided with a particular cellmate. (Id.) Deputy Warden Haley responded and told Plaintiff how to request a particular cellmate. (Id.) Plaintiff did not pursue this matter any further through the grievance process. (Id.) Plaintiff asserts that because of Defendants' acts he has suffered violations of his constitutional rights, cruel and unusual punishment, and permanent, irreparable physical injury. (SOF at ¶ 23.) Plaintiff seeks the sum of $1,500,000.00 from each of the individual
defendants, future medical expenses, costs, Attorneys' fees and any other relief the Court deems necessary and proper. (Id.)

II.

LAW A. Summary Judgment Standard

The Court may grant summary judgment if the movant shows 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." FRCP Rule 56(c). The disputed facts must be material. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, the nonmoving party must demonstrate a dispute "over facts that might affect the outcome of the suit under the governing law" to preclude entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The dispute must also be genuine. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The plaintiff must allege specific facts to support the claim. Id. Mere allegation and speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th

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Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex Corp., 477 U.S. at 323. Therefore, summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of his case on which he will bear the burden of proof at trial. Id.

B.

Plaintiff Failed to Exhaust Administrative Remedies Prior to Filing Suit.

Defendants urge the court to dismiss Plaintiff's claims against Defendants Zapien, Hunt, Lawrence, Putnam, Whiting, and Lee for failure to exhaust administrative remedies prior to filing suit. The Prison Litigation Reform Act of 1996 ("PLRA") mandates

exhaustion of administrative remedies prior to suit for all inmate claims "brought with respect to prison conditions under section 1983 of this title, or any other federal law." 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 517 (2002). Exhaustion of all remedies for all claims is a prerequisite to suit and cannot be waived on grounds of futility, inadequacy, default or for lack of being "plain, speedy, and effective." Booth v. Churner, 532 U.S. 731, 739-740 (2001); see also Porter, 534 U.S. at 532; Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). Further, the Ninth Circuit has determined that, if a prisoner files a § 1983 action that contains exhausted and unexhausted claims, dismissal of the unexhausted claims is appropriate. Lira, 427 F.3d at 1175. 1. ADC Inmate Grievance System

At the times relevant to Plaintiff's complaint, the ADC's three-tiered administrative remedies procedure was governed by ADC Department Order ("DO") 802. (SOF at ¶ 24.) Department Order 802, Inmate Grievance System, provides that an inmate may use the grievance process for issues relating to "property, staff, visitation, mail, food service,

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institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (SOF at ¶ 25.) To begin the grievance process, an inmate must file an "Inmate Letter" attempting to informally resolve a complaint within 10 working days after he becomes aware of a specific problem. (SOF at ¶ 26.) If the inmate is not satisfied with the response, he may file a formal grievance within 10 calendar days to the grievance coordinator. (Id.) If the inmate is not satisfied with the grievance coordinator's response, he may file a grievance appeal within 10 calendar days to a higher official, such as the Deputy Warden or the Warden. (Id.) If the inmate is not satisfied with the response to the grievance appeal, he may appeal to the ADC Director within 10 calendar days. (Id.) An inmate's claim is considered exhausted when an appeal is submitted to the Director and a Response is returned. (SOF at ¶ 27.) 2. Plaintiff failed to exhaust his claims prior to bringing suit.

Since the beginning of 2002, Plaintiff has only filed one grievance appeal to the Director's level. (SOF at ¶ 8.) This grievance involved Plaintiff's allegations that

Defendants Dr. Macabuhay, Dr. Whitney, Dr. Kanter, Stewart, Lutz and Taylor were
deliberately indifferent to his medical needs when they failed to send him to an outside specialist for his back pain. (SOF at ¶¶ 3, 8.) Notwithstanding the fact that it was filed well

outside of time frames, Defendants acknowledge that the allegations contained within the grievance appeal and Count I of Plaintiff's Complaint are apparently exhausted. (SOF at ¶ 8.) Plaintiff has not, however, exhausted his claims in Counts II and III of his Complaint against Defendants Zapien, Hunt, Lawrence, Putnam, Whiting, and Lee. (SOF at ¶¶ 4, 5, 9, 10, 22.) With regard to the allegations that form the basis of Count II of Plaintiff's Complaint, Plaintiff wrote only one Inmate Letter on December 9, 2003, 8

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complaining that on March 17, 2002, Defendant Zapien refused to serve him his meals in his cell and ordered Defendant Hunt to "write [him] up" for lying and faking an injury. (SOF at ¶¶ 9, 10.) Plaintiff did not pursue this matter any further. (SOF at ¶ 10.) Therefore, Plaintiffs claims against Defendants Zapien and Hunt have not been exhausted and should be dismissed. Lira, 427 F.3d at 1175. (SOF at ¶ 27.) Likewise, although Plaintiff claims that he suffered permanent injuries when he fell down the stairs on July 9, 2002 because Defendants Lawrence, Putnam, Whiting and Lee allegedly improperly placed him in a second-tier cell on July 8, 2002, Plaintiff has never grieved these issues. (SOF at ¶¶ 5, 22.) On July 15, 2002, Plaintiff wrote an Inmate Letter in which his sole complaint was that, after he fell down the stairs on July 9, 2002, he was not placed in the same cell he was housed in prior to his back surgery. (SOF at ¶ 22.) The Inmate Letter asked the Deputy Warden to allow Plaintiff to be cellmates with a particular inmate who shared his religious beliefs. (Id.) The Deputy Warden's response informed Plaintiff of the procedures for requesting a particular cellmate. (Id.) Plaintiff did not pursue the matter any further. (Id.) Thus, Plaintiff's claims against Defendants Lawrence, Putnam, Whiting and Lee have not been exhausted and these claims should be dismissed. Lira, 427 F.3d at 1175. (SOF at ¶ 27.) C. Defendants' Were Not Deliberately Indifferent to Plaintiff's Medical Needs.

The law governing Eighth Amendment deliberate indifference to medical needs appears to be fairly well established. For liability to attach, a defendant must act with "deliberate indifference to [Plaintiff's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The defendant must act with knowledge of a substantial risk of serious harm to the plaintiff and fail to take reasonable measures to abate that harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). The alleged constitutional deprivation must 9

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be, "objectively, `sufficiently serious,'" in that the official's "act or omission must result in the denial of `the minimal civilized measure of life's necessities.'" Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) & Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). "Mere negligence is insufficient for liability. . . . [T]he official's conduct must have been `wanton.'" Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002). Most

importantly, "[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a section 1983 claim." Franklin v. State of Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Plaintiff asserts that the failure of Dr. Macabuhay, Dr. Whitney, and Dr. Kanter to immediately send him to an outside specialist upon his request amounted to cruel and unusual punishment and evidenced a deliberate indifference for his medical needs.2 (SOF at ¶ 3.) Plaintiff does not allege that these doctors refused him medical care for his back pain. (Id.) Plaintiff simply disagreed with the treatment plan provided by these doctors. (SOF at ¶¶ 6-7.) A difference of opinion about the course of treatment between an inmate and prison medical providers is insufficient to form the basis for a § 1983 claim. Franklin, 662 F.2d at 1344; see also Sanchez, 891 F.2d at 242. While Plaintiff clearly disagreed with the determinations of his treating physicians regarding his need to see an outside specialist for his back pain, he does not allege any other behavior on the part of his medical providers that rises to the level of deliberate indifference required for a § 1983 claim. Id. (SOF at ¶ 3.) As such, Defendants Macabuhay, Whitney, and Kanter are

The exact dates of many of the events alleged in Plaintiff's Complaint are unclear. To the extent that Plaintiff's claims involve events that occurred prior to March 17, 2002, Defendants submit that those claims are barred by the two-year statute of limitations. A.R. S. § 12-542(1); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 10
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entitled to judgment as a matter of law and Plaintiff's claims against them must be dismissed. Plaintiff further alleges that Defendants Stewart, Lutz and Taylor were also deliberately indifferent to his medical needs because they failed to order Defendants Dr. Macabuhay, Dr. Whitney, and Dr. Kanter to send him to an outside specialist for his back pain. (Id.) In April 2002, Plaintiff sent an Inmate Letter to Deputy Warden Haley complaining about his medical care and stating that he was going on a hunger strike until he got the care he felt that he needed. (SOF at ¶ 7.) Deputy Warden Haley responded and informed Plaintiff that his complaints were being addressed by medical as evidenced by the fact that Plaintiff was being scheduled for an MRI sometime in the near future. (Id.) Plaintiff admits that he was seen by an outside specialist and underwent back surgery in June 2002. (Id.) Plaintiff did not pursue the matter any further until he began the grievance process in December 2003 ­ more than one year following his back surgery. (SOF at ¶ 8.) Defendants Taylor, Lutz and Stewart, thus, were not informed of Plaintiff's medical complaints until Plaintiff initiated the formal grievance process in December 2003. (Id.) As such, none of these Defendants could have possessed the requisite

knowledge needed for a medical indifference claim. Farmer, 511 U.S. at 847. Therefore, Defendants Taylor, Lutz and Stewart are entitled to judgment as a matter of law and Plaintiff's claims against them must also be dismissed. Finally, Plaintiff alleges that Defendants Zapien and Hunt were deliberately indifferent to his serious medical needs because Defendant Zapien ordered Hunt to "write [him] up" for lying and faking an injury and Defendant Zapien refused to feed Plaintiff in his cell on March 18, 2002. (SOF at ¶¶ 4, 9, 10.) ADC has no record that Plaintiff was ever disciplined in March 2002, and Plaintiff has provided no such records to Defendants. (SOF at ¶ 9.) Even if Defendant Hunt had written Plaintiff a disciplinary ticket, Plaintiff 11

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has failed to demonstrate that this constitutes "deliberate indifference to [Plaintiff's] serious medical needs," Estelle, 429 U.S. at 106, which requires an "act or omission . . . [resulting] in the denial of `the minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) & Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Plaintiff has also failed to demonstrate how

Defendant Zapien's refusal to continue to serve him his meals in his cell after his medical lay-in expired on March 18, 2002 amounts to deliberate indifference to Plaintiff's serious medical needs. (SOF at ¶ 10.) Plaintiff does not allege that he was forbidden to go to the cafeteria to eat his meals with the other inmates. (SOF at ¶¶ 4, 10.) If Plaintiff's medical condition was such that he was physically incapable of going to the cafeteria to eat his meals, then Plaintiff should have requested an extension of his medical lay-in prior to its expiration when he saw medical the day before. (SOF at ¶¶ 9-10.) Plaintiff's claims against Defendants Zapien and Hunt should be dismissed. D. Defendants' Did Not Retaliate Against Plaintiff.

A prisoner suing for retaliation must allege that he was retaliated against for exercising his constitutional rights in a way that does not advance legitimate penological goals. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Plaintiff, although not noted in this Court's screening order, asserts that he was retaliated against by Defendants Zapien and Hunt for seeking medical care. (SOF at ¶¶ 4, 10.) Plaintiff claims that this is evidenced by the fact that Defendant Zapien allegedly ordered Defendant Hunt to "write [him] up" for lying and faking an injury and refused to feed him in his cell the next day. (Id.) Plaintiff has provided no evidence other than his own statements to support these allegations. ADC has no record of any disciplinary action against Plaintiff in March 2002, and Plaintiff has provided no such documents to Defendants. 12 As stated previously,

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Plaintiff's medical lay-in expired on March 18, 2002. (SOF at ¶ 10.) Even if Plaintiff's allegations were true, Plaintiff's retaliation claim fails as a matter of law because he has not demonstrated what, if any, constitutional right he exercised in a manner that failed to advance legitimate penological goals thereby subjecting him to this alleged retaliation. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Plaintiff fell in his cell and was immediately taken to medical for treatment. (SOF at ¶ 9.) Even if Plaintiff possesses a constitutional right to medical care, seeking medical care for injuries sustained after a fall does not fail to advance legitimate penological goals. On the contrary, seeking prompt medical attention for injuries assists prison officials in advancing an extremely important penological goal - maintaining inmate health and safety. Plaintiff's claims of retaliation against Defendants Zapien and Hunt fail as a matter of law and should be dismissed. E. The Defendants are Entitled to Eleventh Amendment Immunity.

To the extent that Defendants are being sued in their official capacity, they are entitled to Eleventh Amendment Immunity. A suit against state officials in their official capacities constitutes a suit against the state itself. The Eleventh Amendment to the United States Constitution bars suits brought against a state in federal court, and extends to suits for monetary or retroactive injunctive relief against a state official acting in his official capacity. Edelman v. Jordan, 415 U.S. 651, 662-63, 677-78 (1974); Missouri v. Fiske, 290 U.S. 18, 28 (1933); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Indeed, state officials sued in their official capacities are not "individuals" for purposes of § 1983 action. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). Finally, § 1983 does not abrogate Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 341 (1979). The allegations contained in Plaintiff's Complaint appear to preclude any sort of monetary relief due to Defendants' Eleventh Amendment immunity. 13 Although all

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Defendants are being sued in only their individual capacity, the nature of Plaintiff's allegations against them appears to be solely in their official capacity. (SOF at ¶¶ 3-5.) Language in Kentucky v. Graham, 473 U.S. 159 (1985), distinguishes between official and individual capacity suits, characterizing official capacity suits as essentially, "another way of pleading an action against an entity of which the official is an agent. . . .[and that] It is not a suit against the official personally, for the real party in interest is the entity." Id. at 165-66. (Internal citations omitted). Plaintiff's suit against these Defendants is essentially a de facto complaint against the ADC and its hiring and supervisory policies. (SOF at ¶¶ 3-5.) Plaintiff makes no allegations of wrongdoing against these Defendants other than in their supervisory or official capacities; there are no allegations of action or inaction in their individual capacity. (Id.) As such, to the extent that each Defendant is being sued in their official capacity for monetary or retroactive injunctive relief, Plaintiff's suit must be dismissed. F. The Defendants are Entitled to Qualified Immunity.

Plaintiff's claims against all Defendants are barred by the doctrine of qualified immunity. Prison officials are shielded from liability in the performance of discretionary functions which do not violate clearly established statutory or constitutional rights of which a reasonable person should know. Mendoza v. Blodgett, 960 F.2d 1425, 1431 (9th Cir. 1992) (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982), cert. denied, 113 S. Ct. 1005 (1993)). Qualified immunity protects governmental defendants not only from liability, but is "`an entitlement not to stand trial or face the other burdens of litigation.' . . . [It] is `an immunity from suit rather than a mere defense.'" Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The threshold inquiry in a suit asserting qualified immunity is whether, "[t]aken in the light most favorable to the 14

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party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201. If a constitutional violation has occurred, the court then looks to whether the officer is entitled to qualified immunity in spite of that violation. See Groh v. Ramirez, 540 U.S. 551, 563-64 (2004) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)). The answer to this question hinges on whether "`it would be clear to a reasonable officer that his conduct was unlawful'" under the circumstances. Groh, 124 S. Ct. at 1293 (citing Saucier, 533 U.S. at 202). Finally, the Prison Litigation Reform Act mandates that courts dismiss § 1983 conditions cases, like Plaintiff's, where an inmate seeks monetary relief from an immune defendant. 42 U.S.C. § 1997e(c)(1). Taken in the light most favorable to the Plaintiff, the facts do not show that the Defendants' conduct violated a constitutional right. (SOF at ¶¶ 6-21.) Even if the

Defendants' conduct infringed upon a constitutional right, it would not be clear to a reasonable officer that their conduct was unlawful. (Id.) Defendants Dr. Macabuhay, Dr. Whitney, and Dr. Kanter were simply exercising their professional judgment when they attempted to treat Plaintiff's back pain with conservative therapy and medication before sending him to an outside specialist for surgery. (SOF at ¶ 6.) Defendants Stewart, Lutz and Taylor were not even informed of Plaintiff's medical complaints until more than one year after Plaintiff's June 2002 back surgery. (SOF at ¶¶ 7-8 .) ADC has no record that Defendant Hunt disciplined Plaintiff in March 2002 or that Defendant Zapien prevented Plaintiff from eating any meals on March 18, 2002, after Plaintiff's medical lay-in had expired. (SOF at ¶¶ 9-10.) If these incidents did occur, Defendants Hunt and Zapien were simply following ADC procedures. Defendants Lawrence, Whiting, Putnam and Lee were also following ADC procedures when they made Plaintiff's housing assignment after he returned from back surgery. (SOF at ¶¶ 11-18.)

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III.

CONCLUSION For the above-stated reasons, Defendants respectfully request that this court

grant their Motion for Summary Judgment and dismiss Plaintiff's Complaint in its entirety.

RESPECTFULLY SUBMITTED this 19th day of January, 2006. Terry Goddard Attorney General s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants Original e-filed this 19th day Of January, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Eddie Hatch, #47884008 USP - Atwater P.O. Box 019000 #1 Federal Way Atwater, CA 95301 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS04-0505/G#02-10038 #941105