Free Motion for Summary Judgment - 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 Schriro, by and through undersigned counsel, pursuant to Rule 56, Federal Rules of Civil Procedure and LRCiv Rule 56.1, hereby moves for summary judgment. Defendant's Motion is supported by the following Memorandum of Points and Authorities and concurrently filed Defendant's Statement of Facts ("DSOF"). MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A. Procedural Background. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT No. CV 04-0323-PHX-FJM (GEE)

Plaintiff, Gerald Byerly, is a convicted felon in the custody of the Arizona Department of Corrections ("ADC"). (DSOF at ¶ 1.) Plaintiff is serving a four year, six month sentence for promoting prison contraband and a ten year sentence for attempt to commit molestation of a child. (Id.) On February 12, 2004, Plaintiff filed his Complaint under 42 U.S.C. § 1983, alleging that his Eighth Amendment rights

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were violated when he was assaulted by other inmates while incarcerated at the Alhambra Reception Center in Phoenix, Arizona on September 25, 2003. (DSOF at ¶ 2.) He asserts that Director Schriro does not have a policy to protect inmates convicted of sex offenses. (Id.) Instead, he alleges, she places all types of inmates together in the Alhambra Reception Center and "worry [sic] about it later." (Id.) Byerly seeks compensatory and punitive damages, as well as an order for the ADC to rewrite its policies regarding the safety of sex offenders at the Alhambra Reception Center. (Id.) B. Factual Background.

Plaintiff was incarcerated in the ADC from August 11, 1999 until January 9, 2003, when he was released to his term of community supervision. (DSOF at ¶ 3.) He was serving a sentence for attempted misconduct with a minor and promoting prison contraband. (DSOF at ¶ 1.) Plaintiff violated the terms of his community supervised release by leaving Arizona and going to Texas. (DSOF at ¶ 5.) While in Texas, he was picked up by the police and taken to the Dallas County Jail. (Id.) Plaintiff was then transferred from the Dallas County Jail to the Madison Street Jail in Phoenix, Arizona. (DSOF at ¶ 6.) On September 24, 2003, Plaintiff was transferred from the Madison Street Jail to ADC's custody at the Alhambra Reception Center. (DSOF at ¶ 7.) Upon his arrival at the Alhambra Reception Center, Plaintiff was taken off the bus and his handcuffs were removed. (DSOF at ¶ 8.) Plaintiff and the other inmates who were being received at the Alhambra Reception Center were placed in the intake holding cell. (Id.) The inmates were then taken out of the holding cell to change from their county jail attire to ADC orange jumpsuits. (DSOF at ¶ 9.) After changing their clothes, the inmates being received were brought to an office where they were taken one-by-one to be fingerprinted and photographed. (DSOF at ¶ 10.) After being

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fingerprinted, Plaintiff met with a Correctional Officer ("CO") III, a Counselor, for intake questioning. (DSOF at ¶ 11.) While meeting with the CO III, at approximately noon on September 24, 2003, Plaintiff requested voluntary placement in protective segregation ("PS") due to threats he allegedly received while housed at the Maricopa County Jail. (DSOF at ¶ 12.) Plaintiff claimed that he was threatened by a New Mexican Mafia member after it became known that the victim of his sex offense was a Mexican girl. (Id.) ADC's PS policy is set forth in Director's Instruction ("DI") 67 [Department Order 805], effective June 1, 2001. (DSOF at ¶ 13.) The purpose of DI 67 is to provide procedures for identifying and safeguarding inmates with legitimate protection needs. Id. Once Plaintiff requested PS, he was placed in DI 67 Protective Segregation Review status, separated from general population inmates, and housed in cell D175, a 14 man cell with 13 other inmates who had requested PS. (DSOF at ¶ 17.) Plaintiff claims that on September 25, 2003, while housed in cell D175, at approximately 4:00 p.m., a white inmate hit him. (DSOF at ¶ 21.) Plaintiff claims that, after being struck, a Mexican inmate and an inmate called "J.D." rushed towards him and began hitting and kicking him. (Id.) Plaintiff asserts that he lost consciousness and when he awoke he was informed by the inmate who hit him first that the doctor wanted to see him. (DSOF at ¶ 22.) On September 25, 2003, Plaintiff was taken by a CO to see Family Nurse Practitioner ("FNP") Chaney for an intake examination. (DSOF at ¶ 23.) FNP Chaney, who noticed that Plaintiff had a laceration above his left eye and a swelling bruise on his right cheek, noted that Plaintiff stated that he believed a big Mexican inmate in cell Dog 175 was hitting him while he was sleeping. (DSOF at ¶ 24.) FNP Chaney noted Plaintiff's various injuries. (DSOF at ¶ 25.) After seeing FNP Chaney, Plaintiff was moved to cell Dog 172A to await transport to the Maricopa Medical Center ("MMC"). (DSOF at ¶ 26.)

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Plaintiff was taken to the MMC on September 25, 2003 for evaluation and treatment. (DSOF at ¶ 27.) Plaintiff was returned to ADC from the MMC on September 26, 2003. (DSOF at ¶ 29.) Plaintiff was transferred from the Alhambra Reception Center to the Arizona State Prison Complex ("ASPC")-Eyman, Special Management Unit II ("SMU II") on September 26, 2003. (DSOF at ¶ 31.) Plaintiff admits that he was sent to the SMU II because he was pending DI 67 review and so his injuries could be treated. (DSOF at ¶ 32.) Plaintiff was evaluated at the SMU II by FNP Holliday, who received approval from Dr. Baird to move Plaintiff to the Central Unit. (DSOF at ¶ 33.) Approximately thirty minutes after arriving at the SMU II on September 26, 2003, Plaintiff was moved to the ASPC-Florence, Central Unit so ADC staff could attend to his medical needs. (DSOF at ¶ 34.) Plaintiff was seen frequently by the Central Unit medical staff from September 26, 2003 to October 2, 2003. (DSOF at ¶¶ 35-41, 45-47.) Plaintiff was returned to the SMU II on October 3, 2003. (DSOF at ¶¶ 42.) Plaintiff admits that he was returned to the SMU II for his safety because he was pending DI 67 review. (DSOF at ¶¶ 43.) II. LEGAL ARGUMENT A. Plaintiff's Complaint Should Be Dismissed For Failure to Exhaust Administrative Remedies.

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. Even when

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a prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Porter, 534 U.S. at 524; Booth, 532 U.S. at 741. The PLRA requires exhaustion of all administrative remedies before an action may be brought. The recent case of Mubarak v. California Department of Corrections addressed the total exhaustion issue, concluding that prisoners must exhaust all administrative remedies of all claims before bringing a § 1983 action. 315 F. Supp. 2d 1057, 1060 (S.D. Cal. 2004). See also Taylor v. Clarke, 2002 WL 535421 * 2 (N.D. Cal. 2002) ("An action containing both exhausted and unexhausted claims at the time of filing should be dismissed without prejudice"); Rivera v. Whitman, 161 F. Supp. 2d 337 (D.N.J. 2001) ("Congress made clear its intent that prisoners be required to exhaust all claims before the action was allowed to proceed.") (emphasis added). 1. ADC Inmate Grievance Policy.

At the times relevant to Plaintiff's complaint, the ADC's three-tiered administrative remedies procedure was governed by ADC Department Order ("DO") 802. (DSOF at ¶ 84.) DO 802, Inmate Grievance System (effective March 3, 2000), 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." DO 802.01 § 1.1.1. (DSOF at ¶ 85.) A copy of DO 802 is maintained in each prison unit's library. DO 802.04 § 1.1. (DSOF at ¶ 86.) An inmate is required to attempt to resolve all allowed grievance issues informally before submitting a formal grievance. DO 802.01 § 1.1.3. . (DSOF at ¶ 87.) An inmate must submit an inmate letter to his assigned Grievance Coordinator within ten workdays of the action that caused the complaint. DO 802.08 § 1.1. (Id.) If the inmate complaint cannot be resolved informally, the inmate may submit a formal inmate grievance to his Grievance Coordinator within ten calendar days from
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the date the inmate receives the Inmate Request/Response form from their CO III. DO 802.09 § 1.1.2. (DSOF at ¶ 88.) If the inmate receives an unfavorable response, he may appeal to the Warden/Deputy Warden within ten calendar days of receipt of the grievance form returned from the grievance counselor. DO 802.09 § 1.3.1. (DSOF at ¶ 89.) If the inmate wishes to appeal the Warden's/Deputy Warden's response, he may appeal to the Director via the Grievance Coordinator within ten calendar days of receipt of his grievance form from the Warden/Deputy Warden. DO 802.09 § 1.4.1. (DSOF at ¶ 90.) Within thirty calendar days of receipt of the grievance appeal, the Director shall review the grievance and provide a written response to the inmate specifying the reasons for the decision. DO 802.09 § 1.4.3. (DSOF at ¶ 91.) The Director's response is final, thereby exhausting available administrative remedies through the ADC's Inmate Grievance System for standard grievances. DO 802.09 § 1.4.4. (DSOF at ¶ 92.) If an inmate does not receive a response from an ADC official within the time limits set in the Inmate Grievance System, he is allowed to proceed to the next review level. (DO 802.07 § 1.2.4.) (DSOF at ¶ 93.) 2. Plaintiff Did Not Exhaust His Administrative Remedies.

Plaintiff's Complaint asserts that he submitted a request for administrative relief; however, he was told his request was out of time frames. (Dkt. 1 at 5, Sections 21 3,5.) Plaintiff contends that his request was not submitted in a timely manner because 22 he did not have access to the necessary forms. Id. Except for September 25, 2003, 23 when he was taken to Maricopa Medical Center for evaluation and treatment, Plaintiff 24 was housed in prison facilities where inmate letter and grievance forms were readily 25 available. (DSOF at ¶ 31, 34, 42.) 26

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Plaintiff asserts that on October 9, 2003, he requested an informal grievance form from CO IV Gaines, and that CO IV Gaines advised him he was out of time frames to grieve the assault he sustained on September 25, 2003. (DSOF at ¶ 96.) Plaintiff claims that he was not provided with an informal grievance form 916-1P as required by DO 802. (Id.) In the 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.) At no time, on or about October 9, 2003, did CO IV Gaines refuse to provide Plaintiff with an inmate letter form so he could attempt to informally resolve a grievance issue. (DSOF at ¶ 98.) 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.) As a CO IV, it is not Officer Gaines' duty to advise an inmate that he is out of time frames when filing an informal attempt to resolve his grievance issue(s), nor is it his duty to determine if an inmate may file an inmate grievance. (DSOF at ¶ 100.) Inmate grievances are handled by the Grievance Coordinator, a CO III. (DSOF at ¶ 101.) A review of the inmate grievance logs for the Central Unit from September 25, 2003 through October 25, 2003, and the Special Management Unit II from September 25, 2003 through October 25, 2003, reveals that the inmates assigned to those units during the time frames indicated had access to the inmate letter forms required to initiate the grievance process and did in fact have access to the grievance process. (DSOF at ¶ 103.) An additional review of ADC records reveals that Plaintiff, in fact, had timely access to the inmate letter forms necessary to initiate the ADC grievance process regarding the events that allegedly transpired at the Alhambra Reception Center. However, he chose not to utilize the forms to complain about these alleged events.

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Based on ADC policy, an inmate must submit an inmate letter to his assigned Grievance Coordinator within ten workdays of the action that caused the complaint to start the grievance process. DO 802.08 § 1.1. (DSOF at ¶ 87.) Accordingly, 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 submitted to the Unit Chaplain during this pertinent time period is the same inmate letter form required to attempt to informally resolve a grievance issue. Plaintiff's situation is easily distinguished from the situation in the recent inmate case, Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005). Ngo appealed his disciplinary action, but the prison's appeals coordinator rejected his appeal as timebarred, stating that the prisoner had not filed his appeal within time frames established by California's four-step prison administrative process. Id. at 624-25. The Ninth Circuit Court of Appeals held that the PLRA requires prisoners to exhaust all available administrative remedies before filing a § 1983 claim in federal court. Id. at 625. The Court held that Ngo had exhausted all of his appeals because he could go no further in the prison's administrative system and therefore, no remedies remained available to him. Id. at 631. However, unlike Ngo, Plaintiff made no attempt to file an informal attempt to resolve his grievance issue with his assigned CO III. Plaintiff asserts that he requested an inmate letter form from CO IV Gaines. (DSOF at ¶ 96.) If Plaintiff did in fact request an inmate letter form on October 9, 2003, he admits that the date was the tenth work day from September 25, 2003, the date of the incident; therefore, he was not out of time frames to attempt to informally resolve his grievance issue. (See Plaintiff's Response in Opposition to Defendant's Unenumerated Rule 12(B)(6) Motion to Dismiss at p. 9, lines 22-23.) Assuming, arguendo, that CO IV Gaines told

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Plaintiff that he was out of time frames, Plaintiff, knowing that he was not out of time frames, was free to request an inmate letter form from his CO III or from security staff. Plaintiff failed to show any such effort. Although Plaintiff had the appropriate forms in his possession, Plaintiff did not submit a request for administrative relief. Accordingly, Plaintiff did not exhaust his administrative remedies, and his Complaint should be dismissed. B. Director Schriro Did Not Violate Plaintiff's Eighth Amendment Rights.

Defendant contends that Director Schriro violated his Eighth Amendment rights by being deliberately indifferent to his personal safety and welfare. (Dkt. 1 at 5.) 10 Plaintiff alleges that Director Schriro does not have a policy to protect inmates 11 convicted of sex offenses, and that she places all types of inmates together in the 12 Alhambra Reception Center and "worry [sic] about it later." (Id.) Plaintiff fails to 13 state an Eighth Amendment claim. 14 It is settled law that, under the Eighth Amendment, "prison officials have a duty 15 ... to protect prisoners from violence at the hands of other prisoners." Farmer v. 16 Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 17 842 F.2d 556, 558 (1st Cir.1988)) (internal quotation marks omitted). "The state's 18 failure to protect [convicted prisoners] against assaults by other prisoners results in a 19 constitutional violation when that failure constitutes deliberate indifference." Redman 20 21 Supreme Court set out the two-pronged test that determines when a failure to protect a 22 prison inmate from assault by other inmates rises to the level of a constitutional 23 violation. 511 U.S. at 834. To make out a claim of deliberate indifference to the 24 threat of serious harm or injury by another prisoner, the plaintiff must assert first that 25 the deprivation of his or her rights was "objectively, `sufficiently serious'" i.e., the 26 v. County of San Diego, 942 F.2d 1435 n.7 (9th Cir. 1991)(en banc). In Farmer, the

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official's act or omission must result in the denial of the "minimal civilized measure of life's necessities." Id. The prisoner must have been "incarcerated under conditions posing a substantial risk of serious harm." Id. Second, the prison official must have a "sufficiently culpable state of mind," i.e. he must act with deliberate indifference to inmate health or safety. Id. The Supreme Court has further defined this subjective test: the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety." Id. at 834. Prison officials may not be held liable if they respond reasonably to the risk, even if the harm is not ultimately averted. Id. at 826. Plaintiff was not "incarcerated under conditions posing a substantial risk of serious harm." DI 67, ADC's protective segregation policy, provides appropriate procedures for identifying and safeguarding inmates with legitimate protection needs. (DSOF at ¶ 13.) Because of the procedures in place at the Alhambra Reception Center, Plaintiff was questioned by a CO III regarding safety and housing issues shortly after his arrival at the reception center. (DSOF at ¶¶ 11-12.) When Plaintiff requested voluntary placement in PS, he was promptly separated from the general population inmates in the Alhambra Reception Center, was placed in DI 67 Protective Segregation Review status, and was housed in cell D175, a 14 man cell with 13 other inmates who had requested PS. (DSOF at ¶ 17.) Plaintiff admits that DI 67 review was available to him at the Alhambra Reception Center in 2003. (DSOF at ¶ 15.) Plaintiff admits that upon requesting protective segregation he was placed in a pending protective segregation cell. (DSOF at ¶ 18.) After his request for PS, Plaintiff was never housed in the general population at the Alhambra Reception Center.

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Plaintiff admits that he was not afraid of the other inmates housed in cell D175 on September 24-25, 2003, even though one inmate knew he was a sex offender because they were housed near each other during a previous incarceration and another inmate threatened him. (DSOF at ¶ 19.) Plaintiff did not consider the inmate who knew him or the inmate that threatened him as threats to his safety. (DSOF at ¶ 20.) Furthermore, he did not complain to ADC staff about any of the inmates housed in cell D175 on September 24-25, 2003. (Id.) Plaintiff admits 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. (DSOF at ¶ 48.) Lastly, it was not ADC's policies or the actions or inactions of Director Schriro that caused Plaintiff to receive injuries. Rather, it was Plaintiff's own actions. Plaintiff was overhead by inmates as he told another inmate that he is a sex offender. (DSOF at ¶ 44.) Director Schriro did not act with deliberate indifference to Plaintiff's safety, as she did not have a "sufficiently culpable state of mind." On September 24, 2003, Director Schriro had only held the position as ADC's Acting Director for approximately eleven weeks. (DSOF at ¶ 49.) 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.) Director Schriro does not handle the day to day operations of the Alhambra Reception Center. Pursuant to A.R.S. § 41-1604B2(d), the Director of the ADC can "[d]elegate to appropriate personnel the administrative functions, powers or duties that the director believes can be competently, efficiently and properly performed." (DSOF

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at ¶ 50.) The operation of the prisons is delegated to the Division Director of Offender Operations. (Id.) 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 admits 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 admits that he did not have any contact with Director Schriro while at the Alhambra Reception Center. (DSOF at ¶ 54.) Based on the foregoing, Plaintiff was not incarcerated under conditions posing a substantial risk of serious harm. Moreover, Defendant Schriro was not aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed, nor did she draw such an inference. Accordingly, Defendant Schriro is entitled to summary judgment on Plaintiff's Eighth Amendment claim. C. Director Schriro Is Entitled to Qualified Immunity.

In determining whether a state actor is entitled to qualified immunity, the Court first asks whether the plaintiff has made a prima facie showing that the state actor violated plaintiff's constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the facts alleged show a constitutional violation, the Court next determines whether the law was clearly established. Id. Finally, if the law was clearly established, yet based on other circumstances, the officer made a mistake regarding what the law required, the officer will be entitled to immunity if the mistake was reasonable. Id. at 205. Under this last prong, the Court, applying a "reasonable officer" standard, determines whether the officer's conduct was reasonable. Hunter v. Bryant, 502 U.S. 224, 227 (1991). The Court makes this final determination based on the information the officer possesses at the time. Hunter, 502 U.S. at 227. Defendant Schriro did not violate Plaintiff's constitutional rights. With regard to Plaintiff's claim that Defendant Schriro acted with deliberate indifference to his safety and welfare, there is no indication that

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Plaintiff was confined under conditions posing a risk of "objectively, sufficiently serious" harm and that Defendant Schriro had a "sufficiently culpable state of mind." Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). Because there is no constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. Nonetheless, assuming arguendo that Plaintiff has alleged facts sufficient to establish a constitutional violation, qualified immunity, under the Saucier analysis protects the individual Defendant and dismissal is still appropriate. The "next, sequential step" in the qualified immunity analysis "is to ask whether the right was clearly established." Saucier, 533 U.S. at 202. Plaintiffs bear 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). If Plaintiff cannot meet this burden, the inquiry ends. Saucier, 533 U.S. at 202; Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). "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). If the Court construes Director Schriro's actions as involving a constitutional violation, she had no way of knowing that her conduct and ADC's policies were constitutionally deficient. Furthermore, Director Schriro is unaware of any circuit precedent holding that the conduct or policies at issue in this matter violate a clearly established law. At the time of the pertinent events, Director Schriro had only held the position as ADC's Acting Director for approximately eleven weeks. Already in place

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were ADC's procedures for the intake of inmates at the Alhambra Reception Center and ADC's PS policy, both of which have withstood constitutional scrutiny. The Alhambra Reception Center procedures, as well as the DI 67 policy and its procedures, provided a prompt and appropriate response to Plaintiff's stated safety concerns. Plaintiff was immediately segregated from the general population at the Alhambra Reception Center when he expressed safety concerns. Based on the foregoing, Director Schriro is entitled to qualified immunity. D. The Eleventh Amendment Bars Plaintiff's Monetary Claim Against Director Schriro in Her Official Capacity.

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 11 injunctive relief against a state official acting in his official capacity. Edelman v. 12 Jordan, 415 U.S. 651, 662-63, 677-78 (1974); Missouri v. Fiske, 290 U.S. 18, 28 13 (1933); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Eleventh Amendment immunity is 14 a jurisdictional issue. Edelman, 415 U.S. at 662-63 (1974); Missouri, 290 U.S. at 28 15 (1933). 42 U.S.C. § 1983 does not abrogate Eleventh Amendment immunity from 16 suit. See Quern v. Jordan, 440 U.S. 332, 341 (1979). Therefore, to the extent this 17 action may be deemed an official capacity suit, the monetary claim against Director 18 Schriro must be dismissed. 19 III. 20 Plaintiff did not exhaust his available administrative remedies with regard to his 21 allegations of deliberate indifference to his safety while housed at the Alhambra 22 Reception Center prior to filing the instant lawsuit, as mandated by 42 U.S.C. 23 § 1997e(a). Further, Plaintiff fails to set forth facts sufficient to state a claim of an 24 Eighth Amendment violation. Accordingly Director Schriro respectfully submits that 25 26 CONCLUSION

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she should be granted summary judgment and Plaintiff's Complaint should be dismissed in its entirety. RESPECTFULLY SUBMITTED on this 1st day of September, 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 1st day of September, 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 1st day of September 2005, to: _ Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952 921366

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