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 Albert DeLeon, No. CV 04-0446 PHX PGR (MS) Plaintiff, v. Dora Schriro, et al., Defendants. Defendants,1 by and through undersigned counsel, do hereby move that this court 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 immunity. Defendants' Motion is supported by the included Memorandum of Points and Authorities. MOTION FOR SUMMARY JUDGMENT

Dora Schriro, Ronolfo Macabuhay, Ruben Montano, Donald Sloan, Frederick Ramon, Andres Avalos, Adrian Paredez, Michael Reyna and Dr. Vinluan. NamedDefendant Jones has apparently not been served in this matter.
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RESPECTFULLY SUBMITTED this _____ day of December, 2005. Terry Goddard Attorney General

Susanna C. Pineda Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES RELEVANT FACTS Plaintiff Albert W. DeLeon ("Plaintiff"), ADC #032814, is an inmate in the custody of the Arizona Department of Corrections ("ADC"). (Defendant's Statement of Facts in
Support of Motion for Summary Judgment ("SOF") at ¶ 1.) Plaintiff is currently housed in the Arizona State Prison Complex ("ASPC")-Buckeye, Rast Unit. (Id.) On March 3, 2003, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 ("§ 1983"). (SOF at ¶ 2.) Plaintiff filed his first Motion to Amend and first Amended Complaint on September 16, 2004. (SOF at ¶ 3.) Plaintiff filed his second Motion to Amend his Complaint on September 29, 2004. (SOF at ¶ 4.) The Court's October 22, 2004, order granted Plaintiff's Motions to Amend his Complaint, which resulted in the termination of Defendants Bevins and Peterson and replaced the previously identified "Doe" Defendants with Defendants Reyna, Ramon, Avalos and Paredez. (SOF at ¶ 5.) Plaintiff's Second Amended Complaint ("Complaint") alleges that Defendants violated his Eighth Amendment constitutional rights when they retaliated against him for reporting a planned assault by acting with deliberate and reckless indifference towards his safety causing an irreparable injury. (SOF at ¶ 6.) Plaintiff further alleges that by denying him necessary

assistance to compensate for his handicap, Defendants continue to violate his Eighth Amendment rights. (SOF at ¶ 7.) Plaintiff asserts that because of Defendants' acts, he has suffered violations of his constitutional rights, cruel and unusual punishment, and has 2
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suffered permanent, irreparable physical injury. (SOF at ¶ 8.) Plaintiff seeks injunctive
relief, actual damages, compensatory damages, punitive damages, "Trebele" (sic) damages and retaliation damages. (SOF at ¶ 9.) Plaintiff suffered injuries to his legs in an automobile accident in the early 1970s prior to his incarceration. (SOF at ¶ 10.) These injuries resulted in one of Plaintiff's legs being shorter than the other. (SOF at ¶ 11.) Plaintiff was issued a cane and a pair of "medical tennis shoes" to assist him with walking prior to 2002. (SOF at ¶ 12.) None of the Special Needs Orders ("SNO") in effect on October 17, 2002, authorizing Plaintiff to use a cane and medical tennis shoes contained instructions stating that Plaintiff should not climb stairs. (SOF at ¶ 13.) In October of 2002, an inmate letter was found in Plaintiff's cell in ASPC-Florence, East Unit, which led ADC officials to suspect that Plaintiff was involved in a conspiracy to sexually assault a female correctional officer ("CO"). (SOF at ¶ 14.) On October 17, 2002, Plaintiff was transferred from East Unit to Central Unit pending ADC's investigation of the alleged conspiracy. (SOF at ¶ 15.) Pursuant to ADC policy, inmates must wear standard issue ADC clothing when they are transferred from one unit to another. (SOF at ¶ 16.) Inmate property is collected and transferred separately from the inmates. (Id.) Plaintiff was

handcuffed and walked from East Unit to Central Unit without his orthopedic shoes and cane. (SOF at ¶ 17.) Upon arrival at Central Unit, Plaintiff climbed the stairs in the H run to his new housing assignment on the third tier. (Id.) Later that day, Plaintiff suffered a heart attack, requiring transportation to St. Mary's Hospital where he underwent bypass surgery. (SOF at ¶ 21.) Plaintiff was released from the hospital on October 29, 2002, and sent to ASPC-Tucson. (SOF at ¶ 22.) On November 7, 2002, Plaintiff was transferred to ASPC-Florence, Cell Block Six ("CB-6"). (SOF at ¶ 23.) When Plaintiff arrived at CB-6, he was confined to a wheelchair. (Id.) Plaintiff sent an inmate letter to Defendant Montano requesting that he be given orthopedic shoes and a cane so that he could walk. (Id.) Defendant Montano responded and informed Plaintiff that the decision to issue medical devices was in the sound discretion of the medical providers and that Plaintiff should fill out another HNR and see a physician to address his request. (Id.)

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In March 2003, Plaintiff was transferred to ASPC-Lewis, Morey Unit. (SOF at ¶ 24.) Plaintiff filed his grievance related to staff conduct on October 17, 2002, on June 7, 2003, almost eight months following the date of the incident. (SOF at ¶ 25.) Plaintiff's grievance focuses upon his medical complaints and includes mention of the October 17, 2002, incident. (Id.) No staff names are mentioned in his grievance and his requested relief focuses upon the issuance of medical devices. (Id.) In accordance with ADC policy, the grievance went to FHA Sloan. (SOF at ¶ 26.) FHA Sloan responded to Plaintiff's grievance. (Id.) Plaintiff then appealed the decision to Director Schriro. (SOF at ¶ 27.) Again, no staff names are

mentioned. (Id.) Director Schriro responded thereafter. (Id.) Her response indicates that an investigation into Plaintiff's medical allegations was conducted. (Id.) While recovering, Plaintiff was not allowed to have his medical orthopedic shoes or cane. (SOF at ¶ 28.) This decision was made by Plaintiff's medical providers. (Id.) Since his release from the hospital, Plaintiff's medical providers noted that Plaintiff experienced numbness and weakness in his left leg preventing him from walking. (Id.) Plaintiff further asserts that he was denied all recreation and that these conditions continued for several months. (Id.) Plaintiff also alleges that FHA Sloan and Defendant Vinluan denied him issuance of new orthopedic shoes, use of a cane, and an ADA porter. (SOF at ¶ 29.)

However, in 2002, Plaintiff was issued a wheelchair so that he could be mobile. (SOF at ¶ 30.) Plaintiff asserts that the wheelchair was broken in that it lacked footrests. (Id.)

Defendants Macabuhay and Vinluan ordered footrests. (Id.) Plaintiff's wheelchair was fixed in 2004. (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

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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 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 Schriro, Sloan, Macabuhay, and Vinluan 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. 5
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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 ¶¶ 3132.) 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, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (SOF at ¶ 32.) An inmate's claim is considered exhausted when an appeal is submitted to the Director and a Response is returned. (Id.) 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 ¶¶ 26-27.) This grievance involved Plaintiff's allegations of staff abuse and his subsequent heart attack. (SOF at ¶ 25.) The Director responded to this grievance and, notwithstanding the fact that it was filed well outside of time frames and mentions no names, Defendants acknowledge that the allegations contained within are apparently exhausted.2 (SOF at ¶ 27.) Plaintiff has not, however, exhausted his claims against the following Defendants: Director Dora Schriro, Deputy Warden Montano, Mr. Sloan, Dr. Macabuhay, and Dr. Vinluan. Plaintiff's allegations against Defendants Schriro and Sloan arise from their behavior in either hiring the person who processes the grievance or in the actual processing of the one grievance actually exhausted by Plaintiff. (SOF at ¶¶ 6-7.) Plaintiff has not grieved his claims against these Defendants and, as such, he has failed to exhaust his administrative remedies and these claims should be dismissed. Lira, 427 F.3d at 1175. Likewise, although Plaintiff claims that Defendant Montano failed to supervise Defendants Reyna, Ramon, Avalos and Paredez and subjected him to further physical In his Second Amended Complaint, Plaintiff alleges that Defendants Reyna, Avalos, Ramon, and Paredez were responsible for the abuse that led to Plaintiff's subsequent heart attack. (SOF at ¶ 6.) It is this alleged behavior by these alleged Defendants that forms the basis of Plaintiff's grievance that was submitted to Director Schriro and apparently exhausted. (SOF at ¶ 25.) 6
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abuse when he was confined to CB-6 following his heart attack, he does not assert that Defendant Montano participated in any of the alleged actions that led to his heart attack and which formed the basis of his grievance to Director Schriro. (SOF at ¶¶ 6, 25.) Thus, Plaintiff has not exhausted his administrative remedies with respect to Defendant Montano and these claims should be dismissed. Lira, 427 F.3d at 1175. Plaintiff's allegations against Defendant Vinluan relate to acts on two specific dates, both of which occurred approximately one month after Plaintiff filed his initial Complaint in this case. (SOF at ¶ 7.) Plaintiff could not, therefore, have exhausted his claims against Defendant Vinluan prior to bringing suit as is required by the PLRA. 42 U.S.C. § 1997e(a); Porter, 534 U.S. at 517. Plaintiff has also failed to grieve or exhaust his claims against this Defendant in the meantime. Therefore, these claims should be dismissed. Lira, 427 F.3d at 1175. Plaintiff's only specific allegation against Defendant Macabuhay involves his failure to follow up on a wheelchair repair request. (SOF at ¶ 7.) Because Plaintiff failed to grieve this issue, he failed to exhaust this claim and it should therefore be dismissed. Lira, 427 F.3d at 1175. C. Count I: Retaliation and Deliberate Indifference to Health and Safety 1. Retaliation

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 asserts that he was retaliated against by ADC staff because he came forward with information about an alleged assault on a female officer. (SOF at ¶¶ 6, 14.) Plaintiff also asserts that he is being retaliated against to this day because he was investigated for the assault, even though he was exonerated completely. (Id.) Specifically, Plaintiff asserts that Defendants Reyna, Ramon, Avalos and Paredez retaliated against him for his role in the alleged assault on a female officer by taking away 7
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his orthopedic shoes and cane and forcing him to walk up the stairs to his assigned cell without the aid of these devices. (SOF at ¶ 6.) However, Plaintiff provides no evidence other than his own statements to support his allegations that Defendants Reyna, Ramon, Avalos and Paredez knew that Plaintiff was being transferred from East Unit to Central Unit because he was being investigated for an alleged assault on a female officer. (SOF at ¶¶ 15-20.) Inmates are moved to Central Unit for various reasons, including pending investigations, disciplinary reasons, and for protective segregation. (SOF at ¶ 15.)

Plaintiff further alleges that Defendants Montano and Schriro failed to protect him from the alleged actions of Defendants Reyna, Ramon, Avalos and Paredez. (SOF at ¶ 6.) However, he fails to provide any evidence that Defendants Schriro and Montano knew about the behavior prior to the grievance he filed. (SOF at ¶¶ 23-27.) Plaintiff also provides no evidence that any of these Defendants knew that he was under medical orders not to walk without his orthopedic shoes or cane and not to climb stairs. (SOF at ¶ 13.) Plaintiff's SNOs state that Plaintiff may use orthopedic shoes and a cane to assist him with walking and that he should not lift over ten pounds or climb ladders. (Id.) The section on these SNOs prohibiting an inmate from climbing stairs is not circled. (Id.) Further, ADC policy requires that inmates be transported wearing standard issue ADC clothing and that any other inmate property, is to be transported separately from the inmate for security reasons. (SOF at ¶ 16.) Plaintiff has a history of hiding contraband in his orthopedic shoes. (Id.) In 2001, ADC medical providers confiscated Plaintiff's orthopedic shoes because he hid a stinger under the lift and insole of his left shoe. (Id.) Finally, Plaintiff fails to identify 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, 31 F.3d at 815-16. Plaintiff was being investigated because prison officials obtained an inmate letter in which he claimed to have knowledge of a planned attack on a female officer. (SOF at ¶ 14.) Plaintiff has no constitutional right 8
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to report the possible future activities of other inmates to prison staff. Even if he does possess this right, informing prison officials that a member of the staff is at risk of being assaulted does not fail to advance legitimate penological goals. On the contrary, this type of information assists prison officials in advancing an extremely important penological goal - maintaining staff and inmate safety. 2. Deliberate Indifference to Plaintiff's Health and Safety

To prove an Eighth Amendment violation, an inmate must first show that the conditions of his incarceration deny him "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Hallet v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). Next, an inmate must demonstrate that prison officials acted with "deliberate indifference" to his "health or safety." Farmer, 511 U.S. at 837. Such indifference can occur only if "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837; Gibson v. County of Wahsoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). "This `subjective approach' focuses only `on what a defendant's mental attitude actually was.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 839.). Plaintiff claims that the alleged actions of the Defendants amounted to deliberate indifference to his health and safety because they caused him to suffer a heart attack. (SOF at ¶ 6.) However, Plaintiff provides no medical evidence that the alleged conduct of Defendants was responsible for his heart attack. (SOF at ¶ 21.) Plaintiff's extensive medical records show that Plaintiff suffered from various ailments while incarcerated, but they do not mention that Plaintiff was at risk for a heart attack. (Id.) Even if Plaintiff provided medical evidence that walking up the stairs to his assigned cell in Central Unit caused him to suffer a heart attack, Plaintiff has produced no evidence showing that any of the Defendants knew of and disregarded an excessive risk to Plaintiff's health or safety. 9
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Farmer, 511 U.S. at 837.

Thus, Plaintiff's claim that Defendants were deliberately

indifferent to his health and safety fails as a matter of law. D. Count II: Medical Indifference and Cruel and Unusual Punishment

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, 511 U.S. at 847. The alleged constitutional deprivation must 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 actions of Dr. Macabuhay, Dr. Vinluan, Dr. Jones (unserved), Director Schriro and Mr. Sloan amounted to cruel and unusual punishment and evidenced a deliberate indifference for his medical needs. (SOF at ¶¶ 7-8.) Specifically, Plaintiff claims that he requires orthopedic shoes and a cane and that he was denied these medical devices. (SOF at ¶ 7.) Decisions regarding appropriate medical treatment for inmates are left to the sound discretion of ADC's medical providers. (SOF at ¶¶ 28-29.) Neither Director Schriro nor Mr. Sloan are medically trained or authorized to order any type of treatment for inmates. (Id.)

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Following his heart attack and bypass surgery, Plaintiff was confined to a wheelchair. (SOF at ¶ 23.) Plaintiff repeatedly requested that he be issued a pair of orthopedic tennis shoes and a cane for walking. (Id.) None of Plaintiff's physicians have ordered these devices for Plaintiff at this time. (SOF at ¶¶ 28-29.) Mr. Sloan informed Plaintiff that the medical review committee determined that Plaintiff's condition was such that he did not require orthopedic shoes and a cane at the present time. (SOF at ¶¶ 26, 29.) While Plaintiff clearly disagrees with the determinations of his treating physicians regarding his need for orthopedic shoes and a cane, 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. Franklin, 662 F.2d at 1344; see also Sanchez, 891 F.2d at 242. (SOF at ¶ 7.) 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. Although all

Defendants are being sued in their official as well as individual capacity, the nature of Plaintiff's allegations against them, especially Defendants Schriro, Jones (unserved), 11
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Sloan, and Montano appear to be solely in their official capacity. (SOF at ¶ 7.) 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 16566. (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 ¶ 7.) 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. 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 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 12
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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 ¶¶ 13-20.) 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 were simply

following ADC policy when they removed Plaintiff's orthopedic shoes and his cane from his possession before transporting him from East Unit to Central Unit on October 17, 2002. (SOF at ¶ 16.) Plaintiff was not under medical orders not to climb stairs, and Plaintiff has provided no medical evidence to support his allegation that walking up the stairs caused him to suffer a heart attack. (SOF at ¶¶ 13, 21.) Further, Plaintiff's disagreement with the treatment plan set forth by his health care providers is insufficient to support his § 1983 claim. Franklin, 662 F.2d at 1344; see also Sanchez, 891 F.2d at 242. 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 14th day of December, 2005. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants 13
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Original e-filed this 14th day of December, 2005, 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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Albert DeLeon, #032814 ASPC - Lewis P.O. Box 3300 Buckeye, AZ 85326-0303 s/ Colleen S. Jordan Legal Secretary to: Susanna C. Pineda IDS04-0271/RSK:G03-03830 #887942