Free Response in Opposition to Motion - District Court of Arizona - Arizona

Amanda J. Vaught SB #023035
LAW OFFICES

1 2 3

WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.
Williams Center, Eighth Floor 5210 E. Williams Circle Tucson, AZ 85711

(520)790-5828

4 Attorneys for Plaintiff 5 6 7 8 9 10 11

IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA Gerald Byerly, vs. Deputy Warden, et al., Defendants.
NO. CV 04-0323-PHX-FJM (GEE)

Plaintiff,
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

Plaintiff, Gerald Byerly, submits his Opposition to Defendant's Motion for

12 Summary Judgment. Plaintiff's Opposition is supported by the attached Memorandum 13 of Points and Authorities and Separate Statement of Facts in accordance with Rule 14 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, 15 Defendant's Motion should be denied. 16 17 I. 18 19

MEMORANDUM OF POINTS AND AUTHORITIES FACTS MATERIAL TO DENIAL OF THE MOTION A. Introduction.

In 1997, Plaintiff was charged with allegations that he had sexual intercourse

20 with a runaway who was a minor female. Plaintiff denied the allegations as he believed 21 the girl was seventeen years old. (Statement of Facts "PSOF" at ¶ 61.) The case 22 resulted in Plaintiff's plea to a lesser charge of attempted sexual molestation of a 23 minor. Plaintiff received a sentence which included incarceration in the Maricopa 24 County Jail. (Id.) During this initial imprisonment, Plaintiff was charged with promotion 25 of prison contraband. This time, he pled guilty to the charge of attempting to promote 26 prison contraband, and in August 1999, was sentenced to a term of incarceration in

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1 the Arizona Department of Corrections ("ADC"). (PSOF ¶ 62.) On January 9, 2003, 2 Plaintiff was released from ADC's custody, but the release was subject to conditions 3 and supervision. The terms of his release were violated when Plaintiff left Arizona, 4 without permission, and attempted to move to the State of Texas. Soon thereafter, 5 Plaintiff was apprehended for a violation of the conditions of his release, and on 6 September 24, 2003, he was returned to ADC's custody. (PSOF ¶ 63.) Given his 7 status as a convicted sex offender, Plaintiff sought protection, and as explained below, 8 he had compelling reasons for doing so. 9

Plaintiff's September 24, 2003, re-entry into ADC took place at its Alhambra

10 Reception Center. It is undisputed, that upon reentry, Plaintiff informed prison officials 11 that he was in fear for his life, and he requested that he not be housed with the general 12 population. (PSOF ¶¶ 1, 69.) Instead, he requested

placement into protective

13 segregation. (PSOF ¶¶ 67-69.) It is undisputed that Plaintiff presented a clear, concise 14 and compelling need for protection. (PSOF ¶¶ 58, 67-69.) 15

Unfortunately, as explained below, it is also undisputed that during the

16 admission phase of Plaintiff's re-entry into custody at Alhambra, ADC had neither a 17 policy nor procedure for safeguarding inmates who had demonstrated a clear and 18 compelling need for protection. (PSOF ¶¶ 58-59.) Put most simply, as a matter of 19 policy approved by Defendant, during this admission phase, any expressed need for 20 protection and the consequent known risks of harm are ignored. ( PSOF ¶ 58.) 21

This is not to say ADC lacks a policy; they surely have one, and they applied it

22 squarely in this instance. PSOF ¶¶ 16-17, 20-22, 24-28.) However, as explained 23 below, the policy adopted, approved and implemented by Defendant assures an 24 outcome that violates Eighth Amendment constitutional principles regulating conditions 25 of confinement. To be plain, Defendant's approved Alhambra "protective segregation 26 policy" operates to impose prison conditions that present a substantial risk of serious
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1 harm in a manner that is deliberately indifferent to inmate health and safety. (PSOF 2 ¶¶ 56-60.) Under these circumstances, the Eighth Amendment is violated. Farmer v. 3 Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). 4

Pursuant to Defendant's approved policy, Plaintiff's request for isolation and

5 protection was ignored and he was deliberately housed in a large cell (Cell D-175) 6 along with 13 other inmates. (PSOF ¶¶ 59, 70.) These 13 inmates, with whom Plaintiff 7 was locked in an inadequately unsupervised and substantially unmonitored cell (PSOF 8 ¶ 60.), included: 9 10 11 12 13 14 15

1.

An inmate who knew Plaintiff's status of a sex offender from a prior ADC incarceration. (PSOF ¶¶ 3, 78-79; DSOF ¶ 19.)

2.

Members of the Aryan Brotherhood gang (Skinheads).1 (PSOF ¶¶ 3, 74, 128.)

3.

Members of the Mexican Mafia gang (Mini Park Locos).2 (PSOF ¶¶ 3, 132-133.)

4.

Upon information and belief, an inmate who, for reasons of protecting

16 Plaintiff's safety, had been designated on Plaintiff's "Do Not House With" list, during 17 Plaintiff's prior ADC incarceration.3 (PSOF ¶¶ 3, 134-136.) 18

The stage was now set. Having been locked in a cell with a variety of gang

19 members and with an inmate who knew of Plaintiff's status as a child sex offender, not 20 surprisingly, the inevitable did occur. Accordingly, on September 25, 2003, the day 21 22 23 24 25 26
The Aryan Brotherhood inmates are clearly identified as members of a known Security Threat Group, who present a high risk of harm to other inmates. (PSOF ¶ 53.) The Mexican Mafia inmates are clearly identified as members of a known Security Threat Group, who present a high risk of harm to other inmates. (PSOF ¶ 53.) We assert this fact upon information and belief, because the Defendant has refused to disclose records dispositive of the identity of this inmate. However, a request for "in camera" review of the relevant material is being filed with this responsive summary judgment memorandum.
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1 after his request for protective segregation, Plaintiff was brutally and severely beaten 2 by at least three inmates. (PSOF ¶¶ 84-93, 122-133.) Upon information and belief, 3 one of the assaulting inmates is a member of the Aryan Brotherhood and was likely 4 listed on Plaintiff's Do Not House With list and another assaulting inmate is a member 5 of the Security Threat Group, Mini Park Loco's. (PSOF ¶¶ 3, 128, 133-136.) 6

As a result of this most vicious beating Plaintiff suffered a lacerated left eye and

7 brow area, a swollen jaw, multiple facial contusions and fractures, a tender sub orbit, 8 inner ear bleeding in his right ear, bloody sputum, and tender teeth. (PSOF ¶¶ 97, 99, 9 105, 107, 111, 113.) When Alhambra staff finally realized that Plaintiff had been 10 beaten, he was rushed to the Maricopa Medical Center. (PSOF ¶ 102.) Upon return 11 from the hospital, he received further treatment for his injuries at the ASPC-Florence 12 Central Health Unit. He was released from the Health Unit on October 3, 2003. (PSOF 13 ¶¶ 110-117.) Since then, as a result of the assault, Plaintiff has endured significant 14 pain and suffering. He experiences frequent severe headaches, facial pain and suffers 15 from hearing loss. He has persistent back pain, as well as numbness in both of his 16 hands, and lower body. He also sustained severe throat injuries, to include injuries to 17 his voice box, which may require future surgery, and finally, he suffers from shortness 18 of breath and related breathing difficulties. (PSOF ¶¶ 118-120.) 19 20 21 22

B.

The Arizona Department of Corrections Has Adopted a Protective Segregation Policy, But Defendant has Failed to Apply the Policy at Alhambra, Resulting Incarceration of Inmates Under Conditions that Pose a Substantial Risk of Serious Harm and Demonstrates Deliberate Indifference to Inmate Safety

The ADC protective segregation policy is governed by Director's Instruction 67.

23 (PSOF ¶ 5.) Director's Instruction 67 lays out the procedures for safeguarding and 24 protecting inmates. (PSOF ¶¶ 6-8.) Whenever an ADC staff member receives a written 25 or verbal request from an inmate for protection, Director's Instruction 67 requires that 26
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1 the inmate be immediately isolated in a safe, reasonably secure area. (PSOF ¶¶ 102 11.) Director's Instruction 67 contains a special provision that applies to re3 incarcerated inmates who were previously housed in alternative placement at the time 4 of their release. Re-incarcerated inmates are afforded housing that is segregated from 5 the general population. (PSOF ¶ 12.) When Plaintiff was received at Alhambra on 6 September 24th he was a re-incarcerated inmate who had been housed in alternative 7 placement (due to his sex offender status) and hence, upon re-admission, he was 8 required to be segregated from the general population. (PSOF ¶ 13.) 9

However, inexplicably, in an about face to the obligation to insure inmate safety,

10 all procedures applicable under Director's Instruction 67 are withheld from prisoners 11 entering ADC through Alhambra. (PSOF ¶¶ 17, 22-24.) For inmates entering 12 Alhambra, the Defendant applies a wholly different policy; one that is deliberately 13 indifferent to inmate safety. (PSOF ¶¶ 22-25, 57, 59.) Under the policy at Alhambra, 14 an inmate who makes a request for protective segregation is neither segregated nor 15 protected. Instead, the inmate is placed into a congregate cell with other inmates, 16 some of whom present a danger to others. The only common characteristic of these 17 congregate cell mates is that they (like Plaintiff) are considered possible candidates 18 for future placement into protective segregation. (PSOF ¶¶ 25-26.) 19

Under the Defendant's Alhambra inmate "protection" policy, all protective

20 segregation candidates are locked up together without any investigation or pre21 screening of their status, without any pre-screening or investigation as to whether they 22 are legitimate candidates for protective custody, and without any determination as to 23 whether they pose a danger to others. (PSOF ¶¶ 25-28, 30-36, 47-60.) Accordingly, 24 the so-called Alhambra protection policy approved by the Defendant, allowed Plaintiff 25 to be placed in the same congregate cell with an inmate who knew Plaintiff's status as 26
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1 a sex offender, and it just as easily permitted Plaintiff to be placed in the same cell with 2 a variety of Mexican Mafia and Aryan Brotherhood gang members. (PSOF ¶¶ 3, 74, 3 80, 128, 133-136.) In other words, the policy was designed not only to disregard 4 Plaintiff's plain request for protection, it was implemented in a fashion that required 5 him to be placed in a cell with those from whom he had requested, and needed, 6 protection. (PSOF ¶¶ 3, 53, 59, 74, 80, 128, 133-136. ) In short, as explained below, 7 the Defendant's Alhambra protection policy demonstrates "deliberate indifference" to 8 a substantial risk of serious harm to an inmate and violates the Eighth Amendment. 9

Any present day prison administrator, including Defendant, during the time of

10 Plaintiff's victimization in 2003, would have known that inmates, some of whom are 11 gang members, known as "sleepers", often seek entry into protective segregation 12 solely to kill or harm an inmate who is targeted by the gang for death or injury. (PSOF 13 ¶¶ 29, 43-44, 53, 55-59.) Despite this knowledge, and the associated obvious risks, 14 Defendant's approved segregation policy at Alhambra allows un-investigated gang 15 members, "sleepers" and other dangerous offenders to be placed together with those 16 legitimately in need of isolation and protection.

(PSOF ¶¶ 3, 57-60, 70, 128, 132-

17 136.) Of course, after a period of investigation, many of these initial candidates for 18 protective segregation are identified as improper for protective housing and they are 19 returned to the general population. (PSOF ¶¶ 26, 137-138.) Defendant has admitted 20 this fact. (Id.) Thus, under the Defendant's policy, by the time that Alhambra's 21 candidates for protective segregation are investigated, identified as gang members, 22 and then appropriately assigned to housing that is protective of other inmates, it is too 23 late; the risks posed by the policy are played out and, like in this case, the damage has 24 already been done. (PSOF ¶¶ 119-120.) To summarize: 25 26
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1.

Plaintiff, presented a plea for protective segregation and expressed fear

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1 that "all" other inmates being admitted to Alhambra may know of his sex offender 2 status, and as a result, may harm him. (PSOF ¶¶ 1, 67-69.) 3

2.

Defendant has a duty to have procedures in place at Alhambra that afford

4 reasonable measures to provide for inmate safety. Defendant's policy fails to afford 5 reasonable measures for the provision of inmate safety. (PSOF ¶¶ 57-60.) 6

3.

Prison officials like Defendant have duty to protect prisoners from violence

7 at hands of other prisoners and they have a duty to not incarcerate prisoners in 8 conditions posing a substantial risk of serious harm in a manner that is "deliberately 9 indifferent" to inmate health or safety. (PSOF ¶¶ 55, 57-59.) 10

4.

Defendant's policy at Alhambra afforded no reasonable protection to an

11 inmate like Plaintiff who had the status of child sex offender, and her policy operated 12 to incarcerate Plaintiff under conditions posing substantial risk of serious harm, in a 13 manner that was "deliberately indifferent" to inmate health or safety. (PSOF ¶¶ 43, 5814 59.) 15

5.

Despite the fact that Plaintiff had presented a credible showing of need

16 for isolation and protection, as implemented, the so-called protective segregation 17 policy at Alhambra required Plaintiff to be placed in a congregate cell with other 18 prisoners, whose status and danger to others had not been investigated; and 19 consequently the policy further dictated: (i) that Plaintiff be placed in a congregate cell 20 a prisoner who was aware of Plaintiff's sex offender status, and (ii) that Plaintiff be 21 placed in a congregate cell with members of the Aryan Brotherhood and Mexican 22 Mafia, who are generally known to present security risks to other prisoners. Any prison 23 official, such as Defendant, would know that such a policy, as exists at Alhambra, 24 disregards substantial risk to inmate health and safety, and demonstrates a conscious 25 disregard of a substantial risk of serious harm to inmates. (PSOF ¶¶ 29, 43-44, 59.) 26
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1

6.

The above described conditions of confinement proffered by such policy

2 present substantial risks that any responsible prison official, including Defendant, 3 would know of, from very fact that the risk is obvious. (PSOF ¶¶ 59.) 4 5

C.

ADC's Administrative Grievance System.

The ADC inmate grievance system is a three tiered system governed by

6 Department Order ("DO") 802. (PSOF ¶¶ 140-141.) An inmate's physical access to 7 all of the ADC's administrative grievance forms is at all times controlled solely by ADC 8 personnel. (PSOF ¶ 145.) Prior to filing a formal administrative grievance an inmate 9 is required to attempt to resolve all issues informally by submitting the particular 10 grievance to the inmate's assigned CO III within ten (10) workdays of the action that 11 caused the complaint and an inmate's failure to submit his informal grievance within 12 the specified time frame results in the inmate's forfeiture of the opportunity to pursue 13 a formal grievance. (PSOF ¶¶ 143-144.) 14

On October 9, 2003, Plaintiff requested an informal grievance form from CO IV

15 Dwight Gaines while in the presence of CO Moses. (PSOF ¶ 146. ) The subject of 16 Plaintiff's informal grievance was gong to be the brutal assault he sustained on 17 September 25, 2003. (PSOF ¶ 147.) CO IV Gaines denied Plaintiff's request for an 18 informal grievance form incorrectly telling Plaintiff he was out of the applicable time 19 frames for filing an informal grievance and, since he was out of the time frames, he 20 could not file a standard administrative grievance. (PSOF ¶ 149.) 21 II. 22 23

LEGAL ARGUMENT A. Standard of Review

In considering Defendant's Motion for Summary Judgment, this Court must view

24 the evidence and all reasonable inferences in the light most favorable to the non25 moving party. 26
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Celotex Corp v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986).

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1 Summary Judgment is only appropriate when there is no dispute of a material fact and 2 where evidence presented by the moving party forecloses the possibility of any facts 3 that would support a reasonable inference in the non-moving party's favor. Anderson 4 v. Liberty Lobby, Inc., 447 U.S. 242, 249, 106 S.Ct. 2505 (1986). 5 6

B.

Defendant is not Entitled to Summary Judgment on the Basis of Alleged Failure to Exhaust Administrative Remedies.

Defendant is not entitled to summary judgment for failure to exhaust his
7

administrative remedies. Defendant made this same argument in her Unenumerated
8

12(B)(6) Motion to Dismiss. Nevertheless, we restate the inadequacy of Defendant's
9

Motion.
10

1.
11 12

The PLRA Does not Bar the Claim.

The PLRA, codified in Title 42, United States Code, section 1997e governs a prisoner's ability to file a § 1983 action in federal court. 42 U.S.C. § 1997e provides
13

in pertinent part as follows:
14 15 16 17

"No action shall be brought with respect to prison conditions under section 1983 of this title ... 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) (2005). [Emphasis added.] The failure to exhaust administrative remedies bars a remedy in federal court

18

only if one is still available in the state's administrative system. Ngo v. Woodford, 403
19

F.3d 620, 625 (9th Cir. 2005); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th
20

Cir.2002). [Emphasis added.] Nonexhaustion under § 1997e of the PLRA is not a
21

pleading requirement imposed on a prisoner; defendants have the burden of raising
22

and proving a prisoner's failure to exhaust his administrative remedies. Morgan v.
23

Maricopa County, 259 F.Supp.2d 985, 990 (D.Ariz. 2003); Wyatt v. Terhune, 315 F.3d
24

1108, 1119 (9th Cir.2003). To demonstrate a failure to exhaust the defendant must
25

specify which remedies remain available to Plaintiff. Ngo, supra.
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1

The court rejected the defendant warden's argument that Ngo's failure to comply

2 with applicable administrative filing requirements was equivalent to a failure to exhaust. 3 403 F.3d at 626. In order to demonstrate a failure to exhaust the defendants must 4 specify which remedies remain available to a prisoner. Id. Since the defendants offered 5 no guidance on how the plaintiff prisoner could cure his supposed failure to exhaust 6 or what remedies, if any, remained available to him, the court held the defendants' 7 argument rested on procedural default, not exhaustion. Id. The procedural default did 8 not bar Ngo's action from proceeding. Id. at 631. 9

Just like Ngo, Plaintiff has exhausted all avenues of administrative remedies

10 available to him as required by the PLRA. Plaintiff's initial informal inmate grievance 11 was denied as being "time barred." (PSOF ¶¶ 147-149.) Under DO 802 when an 12 inmate fails to file an informal grievance within 10 workdays of the action that is the 13 subject of the grievance, the inmate is precluded from filing a formal grievance. (PSOF 14 ¶ 144.) DO 802 does not afford an inmate any administrative procedure for appealing 15 the alleged untimeliness of an informal administrative grievance. Plaintiff's time barred 16 administrative remedies are unavailable remedies under the PLRA, and therefore 17 under Ngo, dismissal of his complaint would be improper. Further, just like the 18 defendant warden in Ngo, here Defendant fails to set forth how Plaintiff may cure his 19 supposed failure to exhaust; she fails to identify what remedies remain available to 20 him. Defendant fails to identify the administrative remedies that remain available to 21 Plaintiff because there are no ADC administrative remedies which remain available to 22 him. Under DO 802, all of Plaintiff's administrative remedies are time barred. For the 23 reasons stated, Plaintiff has exhausted all available administrative remedies as 24 required under the PLRA; Defendant's Motion should be denied. 25 26
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2. ADC Denied Plaintiff Access to Grievance Forms Which Prevented him from Pursuing his Administrative Remedies.

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1

When a prisoner is improperly denied access to the prison's administrative

2 remedies, the prisoner is excused from the PLRA's exhaustion requirement. Miller v. 3 Norris, 247 F.3d 736, 740 (8th Cir.2001) A remedy that prison officials prevent a 4 prisoner from "utilizing" is not an "available" remedy under § 1997e(a). Id. See also, 5 Mitchell v. Horm, 318 F.3d 523, 529 (3d Cir.2003) (the district court incorrectly 6 dismissed the prisoner's § 1983 claim because it did not consider Mitchell's allegations 7 that he was denied grievance forms by prison officials). 8

In this case, Defendant asserts that CO IV Gaines would never deny Plaintiff

9 forms on which to file a grievance and would never say tell Plaintiff he was out of time 10 to file a grievance because it "is not in his job description." (DSOF ¶¶ 98-100.) This is 11 directly contrary to Plaintiff's testimony. (PSOF ¶¶ 146-149.) Plaintiff was within the 12 time frames to submit an informal grievance regarding his assault when he requested 13 the appropriate forms from CO IV Gaines. (PSOF ¶ 146-147.) Defendant's contention 14 that there is nothing in the grievance log indicating that Plaintiff filed an administrative 15 grievance (DSOF ¶ 103.), is consistent with Plaintiff's assertions that Defendant 16 prevented him from obtaining the proper forms in order to file an administrative 17 grievance. (PSOF ¶ 149.) At the least, the foregoing presents a legitimate material 18 factual dispute issue rendering the question inappropriate for summary disposition. 19

In sum, Defendant's failure to establish which administrative remedies remain

20 available to Plaintiff renders its summary judgment claim subject to denial as a matter 21 of law. Even if Ngo fails to allow Plaintiff's case to proceed, there are questions of fact 22 concerning whether ADC improperly prevented Plaintiff from timely filing an informal 23 administrative grievance. For this additional reason her Motion must be denied. 24 25 26
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C.

Plaintiff Has Demonstrated a Prima Facia Case that Defendant's Protective Segregation Policy at Alhambra is Deliberately Indifferent to Inmates' Safety and Questions of fact Preclude Summary Judgment.

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1 2

1.

The Applicable Standard.

To establish that his Eighth Amendment were violated the Court is to be guided

3 by the following standards. A prison official's "deliberate indifference" to a substantial 4 risk of serious harm to an inmate violates the Eighth Amendment. Farmer v. Brennan, 5 511 U.S. 825, 828, 114 S.Ct. 1970, 1974 (1994). Under Eighth Amendment, prison 6 officials must take reasonable measures to guarantee safety of inmates. Id. at 832-33, 7 114 S.Ct. at 1976-77. Prison officials have duty to protect prisoners from violence at 8 hands of other prisoners. Id. at 833, 114 S.Ct. at 1977. 9

In cases involving failure to prevent harm, the Eighth Amendment is violated only

10 when the inmate shows he is incarcerated under conditions posing substantial risk of 11 serious harm, and that officials displayed "deliberate indifference" to inmate health or 12 safety. Id. at 834-35, 114 S.Ct. at 1977. Further, a prison official cannot be found liable 13 under Eighth Amendment, for denying an inmate humane conditions of confinement, 14 unless the official knows of and disregards an excessive risk to inmate health and 15 safety; official must both be aware of facts from which inference could be drawn that 16 substantial risk of serious harm exists, and official must also draw that inference. Id. 17 at 837, 114 S.Ct. at 1978. In order to establish the "subjective recklessness" of the 18 prison official the inmate must demonstrate that the official acted with a conscious 19 disregard a substantial risk of serious harm. Id. at 842, 114 S.Ct. at 1981. Whether a 20 prison official had requisite knowledge of substantial risk, so as to have duty to protect 21 prisoner from harm, is question of fact subject to demonstration in usual ways, including 22 inferences from circumstantial evidence, and the fact finder may conclude that prison 23 official knew of substantial risk from very fact that risk was obvious. Id. at 842, 114 24 S.Ct. at 1981. 25

Finally, a prison official may not escape liability for showing "deliberate

26 indifference" to prisoners, in failing to protect them against harm, by showing that while
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1 he was aware of an obvious substantial risk to inmate safety, he did not know that 2 complainant was especially likely to be assaulted by specific prisoner who eventually 3 committed assault. Id. at 843, 114 S.Ct at 1982. 4 5

2.

Application of the Standard Demonstrates Summary Judgment is not Appropriate.

Plaintiff has demonstrated a prima facie case that his Eighth Amendment rights
6

were violated and questions of fact preclude summary disposition of his claim. We re7

emphasize the clear showing that has been made.
8

1.
9 10

Plaintiff pleaded for protective segregation, expressing fear that general

population inmates would harm him as a result of his sex offender status. (PSOF ¶¶ 1, 67-69.)
11

2.
12 13

Defendant has a duty to have procedures in place at Alhambra that afford

reasonable measures to provide for inmate safety. Defendant's approved policy at Alhambra fails to take such reasonable measures. (PSOF ¶¶ 57-60.)
14

3.
15 16

Prison officials like Defendant have duty to protect prisoners from violence

at hands of other prisoners and they have a duty to not incarcerate prisoners under conditions posing a substantial risk of serious harm, in a manner that is "deliberately
17

indifferent" to inmate health or safety. (PSOF ¶ 55, 57-59.)
18

4.
19 20

Defendant's policy at Alhambra afforded no reasonable protection to an

inmate like Plaintiff with the status of child sex offender, and the policy operated to incarcerate him under conditions posing a substantial risk of serious harm, in a manner
21

that was "deliberately indifferent" his health or safety. (PSOF ¶¶ 43, 58-59.) The
22

foregoing facts satisfy the objective prong of the deliberate indifference standard
23

established by Farmer.
24

5.
25 26

Despite the fact that Plaintiff had presented a credible showing of a need

for isolation and protection, as implemented, the so-called protective segregation policy
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1 at Alhambra required that he be placed in a congregate cell with other prisoners, whose 2 status and danger to others had not been investigated; and consequently the policy 3 further dictated: (i) that Plaintiff be placed in a congregate cell the prisoner was aware 4 of his sex offender status, and (ii) that Plaintiff be placed in a congregate cell with 5 members of the Aryan Brotherhood and Mexican Mafia, who are generally known to 6 present security risks to other prisoners. Any prison official, such as Defendant, would 7 consciously know that such a policy, as exists at Alhambra, disregards an excessive 8 risk to inmate health and safety, and demonstrates a conscious disregard of a 9 substantial risk of serious harm to inmates such as Plaintiff. (PSOF ¶¶ 29, 43-44, 59.) 10

In short, the above described conditions of confinement proffered by such policy

11 present substantial risks that any responsible prison official, including Defendant, 12 would know of, from very fact that risk is obvious. (PSOF ¶¶ 59.) The foregoing facts 13 satisfy the subjective prong of the deliberate indifference standard established by 14 Farmer. Id. at 842, 114 S.Ct. at 1981 (whether a prison official had requisite knowledge 15 of substantial risk, so as to have duty to protect prisoner from harm, is question of fact 16 subject to demonstration in usual ways, including inferences from circumstantial 17 evidence, and the fact finder may conclude that prison official knew of substantial risk 18 from very fact that risk was obvious). 19

Courts have found that prison officials showed deliberate indifference to the risk

20 posed by prison policies which allowed inmates of different security levels and racial 21 backgrounds to take recreation together. Miller, supra, 93 F.Supp.2d 892, 899 22 (W.D.Tenn.2000) (practice of allowing inmates of different security levels to take 23 recreation together, to include gang members with protective custody inmates, posed 24 a substantial risk of serious harm as required for county liability for inmate's injuries 25 suffered in attack by fellow inmate); Robinson v. Prunty, 249 F.3d 862, 864-67 (9th 26 Cir.2001) (summary judgment disposition improper on the issue of whether the conduct
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1 of prison officials evidenced deliberate indifference to the risk that violence would result 2 from placing inmates of different racial back grounds and members of the Aryan 3 Brotherhood, or Skinheads, and members of the Surenos prison gang which consists 4 of foot soldiers of the Mexican Mafia, together in units of the prison). Cf. Gibson v. 5 County of Washoe, Nevada, 290 F.3d 1175, 1189-1193 (9th Cir.2002) (fact issues 6 existed as to whether county's policy of delaying medical screening of combative 7 inmates posed substantial risk of serious harm to detainee); See also, Haley v. Gross, 8 86 F.3d 630, 640-41 (7th Cir.1996) ( it is enough for Haley to show that the defendants 9 actually knew of a substantial risk that Wilborn would seriously harm him.) (Emphasis 10 in original.) 11

Plaintiff has set forth facts from which a fact finder may conclude that he was

12 incarcerated under unconstitutional conditions as outlined by Farmer and therefore 13 Defendant's Motion must be denied. 14 15

D.

Defendant is Not Entitled to Qualified Immunity. The threshold inquiry a court must undertake in a qualified immunity

16 analysis is whether Plaintiff's allegations, if true, establish a constitutional violation. 17 Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513 (2002); Saucier v. Katz, 533 18 U.S. 194, 201, 121 S.Ct. 2151 (2001).

The next step is to analyze whether the

19 defendants are entitled to qualified immunity because the rights asserted were not 20 clearly established at the time they were violated. Prison Legal News v. Lehman, 397 21 F.3d 692, 701 (9th Cir. 2005). (Citations omitted.) Having determined that defendant's 22 actions are unconstitutional, the court must next decide whether the defendant's actions 23 "violate[d] clearly established statutory or constitutional rights of which a reasonable 24 person would have known." Prison Legal News, 397 F.3d at 701 (9th Cir.2005). 25 (Internal quotations and citations omitted.) 26

Plaintiff has established a prima facie case that he was confined at the ARC
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1 under conditions posing a substantial risk of serious harm in violation of his Eighth 2 Amendment rights.

The first prong of qualified immunity mirrors the substantive

3 summary judgment decision on the merits. Sorrels, 290 F.3d at 969. As set forth in 4 Section C, supra, Defendant's policy constitutes deliberate indifference in violation of 5 the Eighth Amendment.

This constitutional right was clearly established and

6 reasonably known to Defendant in September 2003. 7

For a constitutional right to be clearly established, its contours must be sufficiently

8 clear that a reasonable official would understand that what he is doing violates that 9 right. Hope, 536 U.S. at 739, 122 S.Ct. at 2514. The relevant inquiry under this second 10 prong is wholly objective; an official's subjective belief as to the lawfulness of his 11 conduct is irrelevant. Anderson, 483 U.S. at 641, 107 S.Ct. 3034. 12

In 1996, the United States Supreme Court recognized that lower courts have

13 uniformly held, and the Court has assumed, `prison officials have a duty ... to protect 14 prisoners from violence at the hands of other prisoners.' Farmer, supra. Since Farmer, 15 numerous courts have recognized that actions constituting deliberate indifference to a 16 prisoner's safety violates an inmate's Eighth Amendment rights. See Robinson, supra, 17 249 F.3d 862, 866 (9th Cir.2001); Newman v. Holmes, 122 F.3d 650, 653 (8th 18 Cir.1997). Surveying the legal landscape as it existed on September 25, 2003, the 19 unlawfulness of Defendant's protective segregation policy at Alhambra was clearly 20 established. 21

For the purpose of the reasonableness of the defendant's actions analysis, the

22 Court must assume that plaintiff's version of the events is true. Robinson, supra, 249 23 F.3d at 867. (Citations omitted.) If the plaintiff carries his burden of proof that the right 24 allegedly violated was clearly established at the time of the misconduct, then the burden 25 shifts and the defendant carries the burden of proving her conduct was reasonable 26 even though it might have violated constitutional standards. Romero v. Kitsap County,
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1 931 F.2d 624, 627 (9th Cir.1991) (Citations omitted.)

Based on the factual

2 demonstration above, Defendant cannot reasonably believe4 that her protective 3 segregation policy was lawful. See Luna v. Thurien, 129 Fed.Appx. 381, 383 4 (E.D.Cal.2005) (an officer could not reasonably have believed that it was lawful for him 5 to be deliberately indifferent to the risk of serious harm to the inmate detainee by 6 exposing him to attack by other inmates); McKinney v. Peters, 58 Fed.Appx. 284, 285 7 (9th Cir.2003) (same). Given the state of the law for almost twenty years, Defendant's 8 belief that her protective segregation policy at Alhambra is constitutional is not 9 reasonable, and accordingly, her qualified immunity defense fails and she is not entitled 10 to summary judgment. 11 12

E.

The Eleventh Amendment is Not a Bar.

This suit is against Defendant in both her official and individual capacity. (See

13 Complaint [Dkt. at 1].) The Eleventh Amendment does not prevent suits against state 14 officers for money damages to be paid out of the officer's pockets, even when the 15 damages are retrospective compensation for past harms. See e.g., Kentucky v. 16 Graham, 473 U.S. 159 (1985); Foulks v. Ohio Dept. of Rehabilitation & Corr., 713 F.2d 17 1229 (6th Cir.1983). To the extent Defendant is found to have been acting in her 18 individual capacity when Plaintiff's Eighth Amendment rights were violated a money 19 judgment against her is proper. 20 21 22 its entirety. 23 24 25 26
If the Court determines there is an issue of fact surrounding the reasonableness of the Director's conduct, the Court may properly order limited discovery on the issue of the reasonableness of her conduct and deny summary judgment. Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir.1991); FED. R. CIV. P. 56(e).
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III.

CONCLUSION For the reasons set forth above, Defendant's Motion should be denied in

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1 2 3 4 5 6 7 8 delivered by NEF this 13th day

DATED this 13th day of October, 2005. WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

By \s\ Amanda Vaught Attorneys for Plaintiff COPY of the foregoing of October, 2005, to:

9 10 Kelley J. Morrissey

11 1275 West Washington Street 12 Attorneys for Defendant 13 14 Liza Dausinger 15 16 17 18 19 20 21 22 23 24 25 26
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Assistant Attorney General Phoenix, AZ 85007-2926

____\s\_________________

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