Free Reply to Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA GERALD BYERLY, Plaintiff, v. DEPUTY WARDEN, et al., Defendants. DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT No. CV 04-0323-PHX-FJM (GEE)

Defendant Schriro, by and through undersigned counsel, replies in support of her Motion for Summary Judgment as follows: I. Plaintiff's Conclusions Are Disputed. In Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Response"), Plaintiff sets forth facts/conclusions that he deems to be "undisputed." Defendant Schriro has not stipulated that any facts are undisputed, and any facts that Plaintiff designates as "undisputed" should not be considered admitted or conceded by Defendant. II. Plaintiff Failed to Exhaust His Administrative Remedies. Plaintiff's Response focuses on the alleged conduct of CO IV Gaines. At no time, on or about October 9, 2003, did CO IV Gaines refuse to provide Plaintiff with

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an inmate letter form so he could attempt to informally resolve a grievance issue. (Defendant's Statement of Facts, "DSOF," at ¶ 98.) Additionally, at no time, on or about October 9, 2003, did CO IV Gaines advise Plaintiff that he was out of time frames for filing an informal attempt to resolve a grievance issue, nor did he advise him that he could not file a standard grievance. (DSOF at ¶ 99.) Plaintiff's Response, however, fails to address the key argument raised in Defendant's Motion for Summary Judgment -- that except for September 25, 2003, when he was taken to Maricopa Medical Center for evaluation and treatment, Plaintiff was housed in prison facilities where inmate letter and grievance forms were readily available, and he had inmate letter forms in his possession. (DSOF at ¶¶ 102, 103.) In the Special Management Unit ("SMU") II, inmate letter forms are passed out to the inmates by security staff. (DSOF at ¶ 97.) The forms are also available from the CO IIIs. (Id.) The inmate grievance logs for the Central Unit from September 25, 2003 through October 25, 2003 and the SMU II from September 25, 2003 through October 25, 2003 clearly show that numerous inmates assigned to those units during the time frames indicated had access to the inmate letter forms required to initiate the grievance process, had access to the grievance process, and utilized the grievance process. (DSOF at ¶ 103.) More importantly, there is no question that Plaintiff had timely access to the inmate letter forms necessary to initiate the Arizona Department of Corrections ("ADC") grievance process regarding the events that allegedly transpired at the Alhambra Reception Center. Based on ADC policy, Plaintiff had until October 9, 2003 to submit an inmate letter regarding the events of September 25, 2003. A review of Plaintiff's institutional file reveals that he submitted inmate letters to the Unit Chaplain on October 5, 2003 and October 8, 2003, requesting a religious diet. (DSOF at ¶ 102.) The inmate letter form, 916-1P, that Plaintiff twice submitted to the Unit Chaplain during this pertinent time period is the same inmate letter form

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required to attempt to informally resolve a grievance issue. Plaintiff was not denied access to inmate letter forms or ADC's administrative remedies. Unlike the plaintiff in Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005) cert. granted, 126 S. Ct. 647 (2005), Byerly did not attempt to utilize his available administrative remedies. Despite having the necessary forms in his possession, he made no attempt to file an informal attempt to resolve his grievance issue. (DSOF at ¶ 95.) 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). Plaintiff, who had access to the ADC grievance process, cannot circumvent or leapfrog the requirements of the PLRA by failing to take any administrative action and then going directly to court because his administrative remedies are time barred. III. ADC's Protective Segregation Policy Has Previously Been Subjected to Judicial Scrutiny. To the extent Plaintiff questions the constitutionality of ADC's protective segregation ("PS") policy, the policy has been subjected to judicial scrutiny.

17 John Does 1-5 v. Terry Stewart, CIV 96-0486 PHX WFN, was a prison 18 conditions-of-confinement class action lawsuit litigated in the United States District 19 Court for the District of Arizona. The plaintiffs in this case were male inmates, 20 housed by ADC in PS, who faced involuntary transfer to the general population. In 21 response to the planned transfer, the plaintiffs brought a class action in February 1996 22 under 42 U.S.C. § 1983, alleging that the planned transfer violated their Eighth 23 Amendment right to be free from cruel and unusual punishment. The case continued 24 for six years and was concluded on June 19, 2002. 25 26

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On February 10, 2000, ADC's counsel and agency representatives submitted a remedial plan, which revamped ADC's PS policy, to the Does court.1 To assist in drafting their remedial plan, ADC retained the services of Richard Phillips, a retired Federal Bureau of Prisons official who co-authored the authoritative text on how to design a PS system and manage a PS population.2 In his report and testimony, Charles Montgomery, Byerly's expert and the Does court's own expert, repeatedly referred to Phillips' work as definitive.3 The stated goal of then ADC Director Terry Stewart was for ADC to have the best and most advanced PS system in the nation.4 ADC totally revamped its PS policies and procedures to meet constitutionality concerns, and these policies and procedures were strictly scrutinized. In July 2000, the parties in the Does case filed a joint stipulation agreeing to conditionally dismiss the case subject to ADC's substantial compliance with its proposed plan.5 The parties also agreed to the appointment of a court monitor, Steve Martin, who monitored ADC's compliance with the proposed plan.6 Among other things, Mr. Martin was allowed to make announced or unannounced visits to all facilities and headquarters offices; provided access to inmate and/or other files, records, and data; permitted unimpeded access to speak with inmates, and ADC personnel; allowed to attend meetings at prison facilities and/or Notice of Filing--Proposed Remedial Plan by the Arizona Department of Corrections Re: Protective Segregation Issues, CIV 96-0486 PHX WFN, February 10, 2000. Debbie A. Hill, Larry Hammond, Bruce Skolnik, Steve Martin, and Donna Clement, Effective Post-PLRA Settlement Models: A Case Study of Arizona's Protective Segregation Lawsuit, Vol. 24, No. 2, Pace Law Review 743, 761 (Spring 2004), http://www.library.law.pace.edu/PLR24-2/PLR225.pdf. A courtesy copy of the document is attached to the Court's copy of Defendant's Reply.
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Id. Id. Vol. 24, No. 2, Pace Law Review at 763. Id.
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ADC's central office that dealt with issues pertaining to PS inmates.7 Mr. Martin was required to file quarterly reports with the court on ADC's compliance with the plan, and he was also allowed to make recommendations regarding compliance. ADC complied with the proposed plan, and the case was dismissed in June 2002. 8 Many observers have commented that ADC's new comprehensive procedures serve as a model for modern corrections, and the PS procedures have been described as "among the most enlightened in the nation" and a "system that continues to thrive."9 There is no evidence that ADC's PS policy, which includes the procedures utilized at the Alhambra Reception Center, were modified in any way between June 2002, when the Does case was dismissed and September 25, 2003, when Plaintiff was injured. IV. Director Schriro Did Not Violate Plaintiff's Eighth Amendment Rights. Despite Plaintiff's assertions, while housed at the Alhambra Reception Center, his requests were not ignored and he was not "locked in an inadequately unsupervised and substantially unmonitored cell." (Response at 3.) In his Complaint, Plaintiff alleged that Director Schriro does not have a policy to protect inmates convicted of sex offenses, and that she places all types of inmates together in the Alhambra Reception Center and "worry [sic] about it later." (Dkt. 1 at 5.) Plaintiff now contends that Director Schriro has a PS policy at Alhambra, but that the policy does not afford reasonable protection to an inmate like himself. (Response at 2, 5-7.) Plaintiff, however, was afforded appropriate protection. While Plaintiff was not housed in a single-man cell after he requested PS, he was segregated from the general population and was placed in a location believed to be
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Vol. 24, No. 2, Pace Law Review at 764. Id. Vol. 24, No. 2, Pace Law Review at 761, 767-768.
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a safe and reasonably secure area, in accordance with ADC's PS policy. Although Plaintiff contends that he was "locked in an inadequately unsupervised and substantially unmonitored cell," the only support he provides for this contention is the affidavit of his expert, Charles Montgomery. (Response at 3; Plaintiff's Statement of Facts "PSOF", ¶ 60.) Defendant Schriro produced to Plaintiff copies of the Alhambra Correctional Service Logs for September 25, 2003, which clearly show that ADC staff provided Plaintiff with appropriate supervision. 10 Neither Plaintiff's Response nor Mr. Montgomery's affidavit makes any reference to these logs. And, there is no indication that Mr. Montgomery ever reviewed these critical items. (Exhibit I to PSOF at ¶ 4.) Instead, the basis for Mr. Montgomery's affidavit, and his opinions regarding an alleged failure to supervise, is several generic entries from documents published by the American Correctional Association. (Exhibit I to PSOF at ¶¶ 37-40.) While Montgomery reaches conclusions regarding the adequacy of supervision at Alhambra and the effectiveness of audio and video surveillance, he has not reviewed the correctional service logs, has not reviewed any other ADC documents regarding staffing, has not reviewed any documents regarding audio and video surveillance at Alhambra, and has not conducted an on-site visit to Alhambra. (Exhibit I to PSOF at ¶¶ 4, 41.) There is no indication that Mr. Montgomery has any relevant, case-specific knowledge regarding the amount or type of supervision ADC staff provided to Plaintiff and the other inmates housed in cell D175 on September 25, 2003. The crux of Plaintiff's deliberate indifference claim is his contention that the inmates he was housed with at Alhambra included members of the security threat groups, the Aryan Brotherhood and the Mexican Mafia, as well as an inmate who had been designated on Plaintiff's "Do Not House With" list during Plaintiff's prior incarceration in ADC's custody and an inmate who knew of his sex offender status
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Defendant's Supplemental Statement of Facts, "DSSOF" at ¶ 7.
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from a prior incarceration. (Response at 3-4, 6.) Plaintiff's contention is baseless. None of the inmates housed in cell D175 with inmate Byerly on September 24 or 25, 2003 were members of a security threat group. (DSSOF at ¶ 2.) None of the thirteen inmates housed in cell D175 with inmate Byerly on September 24 or 25, 2003, were on his Do Not House With list. (DSSOF at ¶ 5.) Plaintiff also refers to the Mini Park Locos as a security threat group. (Response at 3.) The Mini Park Locos are a criminal street gang, as defined in Arizona Revised Statutes § 13-105, and they are not a certified or monitored security threat group. (DSSOF at ¶ 4.) In his expert affidavit, Charles Montgomery's concludes that Plaintiff was housed in conditions that presented a high risk of harm; however, this conclusion is largely based on Mr. Montgomery's belief that Plaintiff was indiscriminately housed with members of two security threat groups, the Aryan Brotherhood and the Mexican Mafia. (Exhibit I to PSOF at ¶¶ 10, 22, 26.) However, none of the inmates with whom Plaintiff was housed in D175 on September 24 or 25, 2003 were members of a security threat group. (DSSOF at ¶ 2.) The basis for Mr. Montgomery's conclusion is inaccurate; therefore, his subsequent conclusion is flawed. In his deposition testimony, Plaintiff admitted that he was not afraid of the other inmates housed in cell D175 on September 24-25, 2003. (DSOF at ¶ 19.) One of the inmates with whom Plaintiff was housed knew Plaintiff from a prior incarceration; however, Plaintiff clearly stated that he did not consider the inmate who knew him or an inmate that threatened him as threats to his safety. (DSOF at ¶ 20.) Furthermore, Plaintiff did not complain to ADC staff about any of the inmates housed in cell D175 on September 24-25, 2003. (Id.) Additionally, Plaintiff admitted that the inmate from the County Jail from whom he was seeking PS was never received or housed at the Alhambra Reception Center while he was housed there on September 24-25, 2003.

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(DSOF at ¶ 48.) Despite his assertions, Plaintiff was not "incarcerated under conditions posing a substantial risk of serious harm." Plaintiff also fails to provide any evidence that Director Schriro acted with "subjective recklessness" and "acted with a conscious disregard of a substantial risk of serious harm." It is undisputed that Director Schriro had no involvement in the creation of the PS policy, and on September 24, 2003, she had only held the position as ADC's Acting Director for approximately eleven weeks. (DSOF at ¶ 49.) As recently as June 2002, ADC's protective segregation policy had withstood constitutional scrutiny. Director Schriro was not aware, on or before September 24-25, 2003, of any problems in the Alhambra Unit pertaining to the housing of sex offenders at the Alhambra Unit. (DSOF at ¶ 51.) Furthermore, with the exception of the incident involving Plaintiff on September 25, 2003, Defendant Schriro is not aware of any incidents involving sex offenders at the Alhambra Reception Center. (DSOF at ¶ 52.) It is the Division Director of Offender Operations, and not Director Schriro, who handles the day to day operations of the Alhambra Reception Center. (DSOF at ¶ 50.) And the running of the Arizona State Prison Complex-Phoenix, Alhambra Reception Center is delegated to the Warden of that facility by the Division Director of Offender Operations. (Id.) Plaintiff admitted that he did not see Director Schriro at any time prior to the incident on September 25, 2005, or after it. (DSOF at ¶ 53.) Plaintiff admitted that he did not have any contact with Director Schriro while at the Alhambra Reception Center. (DSOF at ¶ 54.) Plaintiff relies upon Charles Montgomery's affidavit as support for his position that Director Schriro acted with deliberate indifference. (PSOF at ¶¶ 44, 59). However, Montgomery reaches the legal conclusion that Director Schriro's actions violated Farmer v. Brennan, 511 U.S. 825 (1994), yet he fails to provides any factual basis for his conclusion. Simply stated, neither Plaintiff nor his expert sets forth any facts which indicate that Director Schriro

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possessed a "sufficiently culpable state of mind," i.e. that she was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and she drew the inference. Plaintiff cites to several deliberate indifference cases that are easily distinguished from the present case. (Response at 14-15.) Unlike the present case, in each of the cases to which Plaintiff cites, the plaintiff presented evidence that officials were aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and that the officials drew the inference. In Miller v. Shelby County, Tenn., 93 F.Supp.2d 892, 898-899 (W.D.Tenn. 2000), prison officials often failed to take gang affiliation into consideration when classifying inmates and, although prison officials had general and specific knowledge of threats by gang members, they maintained a practice of allowing inmates of different security levels to take recreation together, including gang members with protective-custody inmates. Additionally, while the officials knew of the possibility that a protective-custody inmate might be a specific target, they took no affirmative steps to protect inmate, including the readily available option of ending mixed-recreation practice. Id. at 899-900. In Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001), the court held that a genuine issue of material fact existed as to whether prison officials and correctional officers alleged conduct evidenced deliberate indifference to the risk that violent outbursts would result from placing inmates of different racial backgrounds in integrated exercise yards. In Robinson, the plaintiff presented evidence of a "gladiator-like" scenario in which correctional staff were aware that placing inmates of different races in the yard at the same time presented a serious risk of violent outbreaks. Id. at 867. The defendants' awareness of the risk and their indifference thereto was demonstrated by the alleged frequency with which outbreaks occur, by the alleged jokes made by the guards to Robinson before they released a

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Mexican-American inmate into the yard with him, and by the alleged fact that guards failed to intervene while Robinson was attacked by another inmate. Id. In Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1190 (9th Cir. 2002), which involved a county jail's health care policy, the county's liability hinged not only on whether the county's policy of delaying medical screening of combative inmates posed a substantial risk of serious harm, but also on whether the county was aware of the risk. The court held that the county's policies made it clear that policymakers were aware that mental illness and manic phases were within the range of health problems that would sometimes require urgent care and that the policymakers knew that people in a manic state will sometimes be combative. Id. In Haley v. Gross, 86 F.3d 630 (7th Cir. 1996), the evidence sustained a jury determination that prison officials were deliberately indifferent to the safety and welfare of a prisoner who was severely burned when his cellmate set fire to their cell. In Haley, the plaintiff and his cellmate had been feuding and prison officials had been unable to diffuse the situation; Haley's cellmate had been acting strangely, including threatening to burn down the cell; and the cellmate set their cell on fire after Haley's pleas to be moved were ignored and after the cellmate was placed on "deadlock status," which made it more difficult to remove either prisoner from the cell in an emergency. Id. at 642. V. Director Schriro Is Entitled to Qualified Immunity. Defendant Schriro contends that Plaintiff was not "incarcerated under conditions posing a substantial risk of serious harm." Nonetheless, assuming arguendo, that Plaintiff has alleged facts sufficient to establish a constitutional violation, under the analysis in Saucier v. Katz, 533 U.S. 194 (2001), Director Schriro is entitled to qualified immunity and dismissal is appropriate. Assuming a constitutional violation has occurred, the "next, sequential step" in the qualified immunity analysis "is to ask whether the right was clearly established."

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Saucier, 533 U.S. at 202. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted," Saucier, 533 U.S. at 202, or "whether the state of the law [at the time of the challenged action] gave `fair warning' to the officials that their conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002). Plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000); Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). Even if the law was clearly established, if the officer makes a reasonable mistake regarding what the law requires, the officer is still entitled to qualified immunity. Saucier, 533 U.S. at 205; Hunter v. Bryant, 502 U.S. 224, 227 (1991). Director Schriro had no reason to think, on September 24-25, 2003, that the conditions in which Plaintiff was housed at the Alhambra Reception Center were unconstitutional. There is no evidence that, prior to September 24-25, 2003, there were any problems with the procedure used by ADC staff to segregate inmates at the Alhambra Reception Center who requested protective segregation. Additionally, there is no evidence that, prior to September 24-25, 2003, there were any instances of violence at the Alhambra Reception Center directed toward inmates convicted of sexual offenses. Furthermore, at the time of the alleged events, Director Schriro had held the position as ADC's Acting Director for approximately eleven weeks. Already in place were ADC's PS policy and procedures, which had withstood constitutional scrutiny. When Defendant Schriro became the ADC's Acting Director, the case, Does v. Stewart, CIV 96-0486 PHX WFN, which involved a thorough revamping of the PS policy, had been concluded little more than a year earlier in June 2002. There was no reason for Defendant Schriro to conclude that a PS policy that had been so recently

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revised, and which was the subject of significant monitoring and scrutiny, was unconstitutional. Director Schriro's conduct was reasonable based upon the information she possessed at the time. Hunter, 502 U.S. at 227. To the extent the Court may determine that Plaintiff's constitutional rights have been violated, Director Schriro is entitled to qualified immunity. VI. CONCLUSION Based on the foregoing, Defendant's Motion for Summary Judgment should be granted and the Plaintiff's Complaint should be dismissed in its entirety. RESPECTFULLY SUBMITTED on this 20th day of December, 2005. TERRY GODDARD Attorney General

s/Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendant

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ORIGINAL and One copy of the foregoing filed this 20th day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed This 20th day of December 2005, to: _ Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/C. Jordan Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952 937552

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