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

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ARMANDO ROBERTO AROS III, No: CV04-306 PHX SRB (LOA) Plaintiff, DEFENDANTS' MOTION FOR SUMMARY v. JUDGMENT ROBINSON, et al.,

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Defendants1, by and through undersigned counsel, pursuant to Federal Rules of Civil Procedure 56(b) and Local Rule 56.1, submit their Motion for Summary Judgment. The pleadings and supporting documents, viewed in the light most favorable to Plaintiff, establishes that there is no genuine issue as to any material fact and Defendants are therefore entitled to judgment as a matter of law. This Motion is supported by the attached Memorandum of Points and Authorities and concurrently filed Statement of Facts (hereinafter "SOF".)
RESPECTFULLY SUBMITTED this 22nd day of June, 2006. TERRY GODDARD Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants Schaulin, Duarte, Schriro and Rivas. Document 50 Filed 06/22/2006 Page 1 of 18

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I.

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff, Armando Roberto Aros, III, ("Aros"), # 95001, is an inmate in the custody of the Arizona Department of Corrections ("ADC"), currently housed in Arizona State Prison Complex ("ASPC") ­ Eyman/Rynning Unit, in Florence ("Statement of Facts in Support of Motion for Summary Judgment ("SOF") at ¶ 1.) On June 25, 2003, Aros was placed in the Central Unit at Florence in Cell Block ("CB") 7 and he remained there until April 19, 2004. (SOF at ¶ 2.) Aros alleges that while housed in CB-7, Defendants subjected him to conditions of confinement that violate the Eighth Amendment. (SOF at ¶ 3.) Aros alleges: an inadequate cooling system; having to be fully clothed in an excessively hot environment; lack of a functional cell light; unusable mattress; lack of a pillow; small outdoor exercise enclosures; inability to obtain meaningful exercise; lack of a trash can; lack of cleaning supplies; inadequate opportunities to use cleaning supplies; noise levels at visitation; pigeon droppings in the outdoor exercise enclosures; and, lack of access to restroom facilities from the outdoor exercise enclosures. (Id.) Aros claims that as a result of these conditions he suffered sleep deprivation, denial of meaningful exercise, and exacerbation of his ongoing depression. (Id.) Aros seeks injunctive and declaratory relief and compensatory and punitive damages. (Id.) II. RELEVANT FACTS Aros was transferred to the ASPC-Central Unit, CB 7 on June 25, 2003 and remained in that placement until April 19, 2004. (SOF at ¶ 2.) The Central Unit is a maximum security prison. (SOF at ¶ 4.) CB-7 is a four-tiered building containing 152 identical cells located on the West side of the building. (SOF at ¶¶ 5, 6.) The front of each cell is made of solid metal with the cell door perforated at the bottom. (SOF at ¶ 6.) Each cell has a window. (SOF at ¶ 7.) Each cell has a single lighting fixture, controlled by the inmate. (Id.) Inmates may also purchase a lamp from the inmate store. (SOF at ¶¶ 7-8.) Every thirty minutes correctional officers conduct security checks on all tiers in CB-7. (SOF at ¶ 9.)

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Inmates at Central Unit use outdoor exercise enclosures for exercise. (SOF at ¶ 12.) Inmates exercise for a one-hour duration, three times a week, with one inmate in the enclosure at a time. (SOF at ¶¶ 10, 11.) Six correctional officers are assigned to monitor the enclosures. Staff performs security searches, restraint of inmates, escorts to and from the enclosures, observation of activities and assist inmates as needed. (SOF at ¶¶ 12, 13.) While the exercise area does not contain exercise equipment and inmates are not allowed to bring objects into the exercise area, inmates can do push-ups, sit-ups, jumping jacks, run or walk in the area. (SOF at ¶¶ 14.) The buildings and exercise enclosures are exposed to pigeons and their consequential droppings. (SOF at ¶ 16.) The exercise area is cleaned on a weekly basis by inmates who wash down the enclosures and scrub the area with a brush. (Id.) While Central Unit had spikes in place to deter the pigeons from sitting on the structure ledges, in 2003, ADC staff also constructed cages and traps and placed them on the roofs to capture some of the pigeons. Products from Bird B Gone, were also acquired to alleviate the presence of the pigeons. (SOF at ¶ 17.) To ensure that the pigeon droppings were not a health hazard, the Facility Health Administrator ("FHA") regularly monitored the droppings in the outside exercise area during 2003 and 2004. (SOF at ¶ 18.) The FHA determined the pigeon droppings did not pose a health hazard to the inmates using the exercise enclosures. (Id.) All CB units are cooled by evaporative cooling. (SOF at ¶ 20.) The system is designed for air to flow freely from the terminal end into each individual cell. (SOF at ¶ 21.) Each cell has a supply and a return vent. (SOF at ¶ 20.) The cooling system is maintained on a regular basis and repaired as needed. (SOF at ¶ 22.) In 2003, maintenance personnel conducted temperature checks within individual cells. The highest temperatures obtained were in the 80 degree range. (SOF at ¶ 21.) While inmates may remove their shirts while in the exercise enclosures, they are required to remain clothed in a shirt and pants or shorts while in their cell. (SOF at ¶¶ 15, 19.) Inmates in the Central Unit are provided standard Arizona Correction Industry mattresses which are replaced when needed. (SOF at ¶ 23.) All inmates are issued a pillow, however, in

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2003 Central Unit experienced a delay in obtaining new pillows. (SOF at ¶ 24.) In 2003, trash cans were not permitted in individual cells in Central Unit, but rather, trash bags were issued or inmates used bags from the commissary to store the trash from their cells. (SOF at ¶ 25.) Inmates are responsible for cleaning their own cells. (SOF at ¶ 26.) Inmates are afforded visitation on a weekly basis with up to four people at a time. (SOF at ¶ 27.) Visitation takes place in a cubicle where the inmate and visitor communicate through a glass partition. (Id.) At CB-7 Aros had access to medical, dental and mental health services and he was not refused medical treatment. (SOF at ¶ 28.)2 He suffered from depression before he entered CB-7 and has received medication for his depression since 1999. (SOF at ¶ 30.) The psychosomatic symptoms of depression are headaches and fatigue. (Id.) He has not requested medical treatment for either of these symptoms. (Id.) III. A. LEGAL ARGUMENT Summary Judgment Standard

Rule 56(c) of Fed. R. Civ. P. "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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 moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e), see also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.

Aros failed to return a signed authorization for release of his medical records. As such, Defendants cannot provide evidence to either support or refute his medical history. Undersigned counsel was notified on June 21, 2006, that Aros intended on returning the signed medical release authorization. Case 2:04-cv-00306-SRB Document 50 Filed 06/22/2006 Page 4 of 18

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574, 585-88 (1986), Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Summary judgment is proper, therefore, if the non-moving 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 at trial. See Celotex, 477 U.S. at 323. B. Aros Fails to State a Cruel and Unusual Punishment Claim.

The Eighth Amendment is not a basis for broad prison reform; it requires neither that prisons be comfortable, nor that prisoners be provided every desirable amenity. Rhodes v.

Chapman, 452 U.S. 337, 349 (1981). Although prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, routine discomfort or inconvenience does not constitute a constitutional deprivation under the Eighth Amendment. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). In addition, the "circumstances, nature, and duration of a deprivation of [ ] necessities must be considered in determining whether a constitutional violation has occurred." Id. To state an Eighth Amendment cruel and unusual punishment claim, Aros must establish that Defendants' "act[s] or omission[s] . . . result[ed] in `the denial of the minimal civilized measure of life's necessities'" and that the Defendants were "deliberately indifferent" to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The first objective component requires that the Defendants denied Aros "life's basic necessities." Id. at 832. The second subjective component requires that the Defendants knew of and disregarded an excessive risk to Aros' health or safety. Id. at 837. Neither requirement is satisfied in the instant case. 1. Aros' "Totality of Conditions" Must Fail. Aros' Complaint infers a myriad of unrelated conditions (i.e. inadequate cooling system, lack of a functional cell light, an unusable mattress, lack of a pillow, small rec pens, inability to obtain meaningful exercise, lack of a trash can, lack of cleaning supplies and excessive noise

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levels during visitation) taken together, amount to cruel and unusual punishment. (SOF at ¶ 3.) However, this argument must fail as a "number of unrelated conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation." Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). Related conditions are those conditions that combine to deprive a prisoner of a discrete basic human need. Hoptowit v. Ray¸ 682 F.2d 1246, 1247 (9th Cir. 1982). Because none of Aros' individual complaints in and of themselves rise to the level of Eighth Amendment violations and they are not related conditions, Defendants should be granted summary judgment as a matter of law. 2. There is No Evidence That Defendants Failed the Objective Test. Aros fails to satisfy the first requirement because he cannot establish that he was denied life's basic necessities.3 In terms of "life's necessities," Aros, like all inmates housed in the Central Unit, has certain restrictions upon his rights and privileges. (SOF at ¶¶ 5, 7, 10, 14, 19, 25, 27.) These restrictions, however, do not rise to the level of a constitutional violation as these are the reasonable necessities of running a maximum security facility. a. Cell Lighting Aros alleges that his cell in CB-7 lacked a functional cell light and that he filed a grievance. (Dkt. 15, p. 7; SOF at ¶ 7.) His cell light was replaced. (Id.) Aros was without a functional cell light for a few weeks. (Id.) He admits that he suffered no negative effects or problems with his eyesight during this period of time. (Id.) Defendants resolved Aros' complaint upon notification. In addition, every cell contains a substantial window which allows sunlight to enter. (SOF at ¶ 6.) Each inmate may possess a lamp in their cell.4 (SOF at ¶ 8.) Because Aros had access to other light sources and the deprivation was short, his lack of a functional cell light does not rise to the level of an Eighth

Aros does allege that he was subjected to unsanitary conditions, however, he will not be able to provide evidence suggesting such circumstances and this issue will be discussed supra at pp. 8 and 11 . 4 Aros is unsure whether or not he possessed a lamp at that time. (SOF at ¶ 8.) Case 2:04-cv-00306-SRB Document 50 Filed 06/22/2006 Page 6 of 18

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Amendment violation. See Johnson, 217 F.3d at 731. As such, Defendants should be granted summary judgment as to this issue. b. Outdoor Exercise Area Aros alleges that the outdoor exercise areas were too small to obtain meaningful exercise. (Dkt. 15 at p. 7A.) Restrictions on exercise do not offend the Eighth Amendment absent proof of muscle atrophy or a threat to the inmate's health is shown. See Wishon v. Gammon, 978 F.2d 446, 446-49 (8th Cir. 1992). All of the approximately 900 inmates share the same 131 outdoor exercise enclosures. (SOF at ¶ 11.) The exercise facility allows fresh air, sunlight and the elements to enter the enclosure. (SOF at ¶ 10.) The dimensions of the exercise enclosure are 9 feet-8inches long by 9 feet-8inches wide and 8 feet-1 inch high. (Id.) This area is large enough for an inmate to perform push-ups, sit-ups, jumping jacks, running or walking. (SOF at ¶ 14) Inmates may also exercise in their cells. (Id.) Aros cannot establish that the exercise conditions caused his muscles to atrophy or any other threat to his health. Because Aros could exercise in his cell and the exercise time frame is relatively short, his allegations that the exercise enclosures were too small do not rise to the level of an Eighth Amendment violation. See Johnson, 217 F.3d at 731. Further, Defendants are not constitutionally required to provide inmates with any particular type of exercise equipment, such as rowing machines or any other weight training exercise machines. Although restrictive, these conditions do not however rise to the level of an Eighth Amendment violation. See Hosna v. Groose, 80 F. 3d 298, 306 (8th Cir. 1996) ("Requiring an inmate to exercise in an enclosed area is not itself a per se violation of the Eighth Amendment . . ."). As such, Defendants provided Aros with the minimal civilized means for exercising his body and summary judgment is appropriate as to this issue. c. Lack of Access to Restroom Aros alleges that he was without access to a restroom while he was in the outdoor exercise area and that this caused him pain. (Dkt. 15 at p. 7B; SOF at ¶ 13.) Plumbing that is in such disrepair as to deprive an inmate of basic elements of hygiene and that seriously threaten their

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physical and mental well-being amount to cruel and unusual punishment. Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985). Here, Aros was afforded one hour of outdoor exercise time to occur three times a week. (SOF at ¶ 10.) Inmates are not normally left in the outdoor exercise enclosures for longer than an hour. (Id.) However, should an inmate require the use of a restroom, they are to contact one of the six correctional officers who monitor the exercise enclosures for an escort to the restroom. (SOF at ¶ 13.) While this is not a common request by inmates, when practical, the assigned officer will escort the inmate to the restroom and depending on what other activity is taking place, will return the inmate to the outdoor exercise area. (SOF at ¶¶ 13, 14.) Aros has not alleged that the restrooms were not functioning or that they needed repair. Nor can he establish that his failure to use the restroom during an hour is a deprivation of a basic element of hygiene or that his physical and mental well-being was seriously threatened. Therefore, Defendants are entitled to summary judgment as to this issue. d. Pigeon Droppings Aros alleges that the pigeons defecated daily into the exercise area. (Id.) He states that the droppings affected him because he was not able to exercise and that it was "nasty." (SOF at ¶ 18.) A sanitary environment is a basic human need that a penal institution must provide to all inmates. See Hoptowit, 753 F.2d at 783. Again, the deprivation must rise to the level which seriously threatens the inmates physical and mental well-being. Id. Defendants do not dispute that pigeons and pigeon droppings are present at the Central Unit. (SOF at ¶ 16.) However, ADC properly responded to the issue. (SOF at ¶ 17-18.) As such, Defendants are entitled to judgment as a matter of law. e. Clothing Aros alleges that Defendants required him to remain clothed in an excessively hot environment. (Dkt. 15 a p. 7A.) The Eighth Amendment affords all inmates the right to

"adequate food, clothing, shelter, sanitation, medical care and personal safety." Hoptowit v. Ray,

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682 F.2d 1237, 1246 (9th Cir. 1982). Aros admits that ADC provides him with standard issue clothing. (SOF at ¶ 15.) As such, Defendants have provided Aros with the basic necessities of life. While Aros may not agree with policies that are instituted (SOF at ¶ 19), case law is clear that the Supreme Court has granted prison administrators wide latitude when reviewing the solutions they have adopted. Bell v. Wolfish, 441 U.S. 520, 547 (1979). This deference flows not only from the recognition that prison officials are better suited to run prisons than are judges but also from the fact that, under our constitutional system of separation of powers, running the prison is the prison administrator's job, not the judge's. Id. at 547­48 n.29; Turner v. Safley, 482 U.S. 78, 84­85 (1987). In harmony with the deference to be shown to prison administrators, the Supreme Court has also admonished the judiciary to adopt a hands-off attitude when it comes to reviewing prison policies and interfering in prison operations. Procunier v. Martinez, 416 U.S. 396, 404­05 (1974) (footnotes omitted), overruled on other grounds, Thornburgh v. Abbot, 490 U.S. 401 (1989); accord Wolfish, 441 U.S. at 548 n.30. The Supreme Court has repeated this admonishment, noting that it applies even when the courts may not like the solution that the prison officials have adopted. Id. at 544 (quoting Wolfish v. Levy, 573 F.2d 118, 124­25 (2d Cir. 1978)). Thus, courts must be extremely hesitant to interfere with the decisions of prison officials and must accord them great deference. The Supreme Court has set forth a specific procedural order to the determination of constitutional issues such as are presented here. The courts may not interfere in prison

administration by inquiring into the wisdom of prison regulations unless and until constitutional rights are implicated. See Procunier v. Martinez, 416 U.S., at 407, 94 S.Ct., at 1808. Turner v. Safley, 482 U.S. 78, 89 (1987) (alteration in original) (citation omitted); accord Martinez, 416 U.S. at 405­06 ("When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.") Ordering

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inmates to remain clothed while in their cell does not implicate a constitutional right and therefore the Court should not interfere with the DI enforced by the ADC. f. Cooling System Aros alleges that CB-7 had an inadequate cooling system. (Dkt. 15 at p. 7A.) He asserts that he sweat while he was in his cell. (SOF at ¶ 19.) Inadequate "ventilation and air flow" violates the Eighth Amendment if it "undermines the health of inmates and the sanitation of the penitentiary." Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (citing Hotowit, 753 F.2d at 784). All CB units at Central Unit are cooled by the use of evaporative cooling. (SOF at ¶ 20.) Each cell has a supply vent and a return vent from an adequately maintained system which maintains the summer temperature in the 80's. (SOF at ¶¶ 21, 22.) In Keenan, the court held that where an allegation suggests only that the temperature was uncomfortable, the claim should be dismissed. Keenan, 83 F.3d at 1091. Here, Aros has only alleged an inadequate cooling system, as such, Defendants should be granted summary judgment as a matter of law. g. Mattress Aros alleges that he lacked a usable mattress for four to six weeks after which time he received a new mattress. (Dkt. 15 at p. 7A; SOF at ¶ 23.) As such Defendants should be granted summary judgment as to this issue. h. Pillow Aros alleges that the entire time that he was housed at CB-7 he never had a pillow. (Dkt. 15 at p. 7A.) Defendants admit that they experienced delay and difficulty in obtaining new pillows for inmates at Central Unit. (SOF at ¶ 24.) However, ADC attempted to get pillows for all the inmates and purchased and distributed pillows every quarter. (Id.) The Eighth Amendment does not mandate a pillow. See Hoptowit, 682 F.2d at 1246. As such, Defendants are entitled to summary judgment on this issue.

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i. Trash Cans Aros alleges that he was not given a trash can which exacerbated his depressed condition. (Dkt. 15 at p. 7A; SOF at ¶ 25.) Aros was provided a bag for his trash and the trash was picked up daily. (SOF at ¶ 25.) Again, while Aros may not agree with the ADC policy, prison

administrators are granted wide latitude when reviewing the solutions they have adopted. See discussion supra pp. 11-12. j. Cleaning Supplies Aros alleges that he was not provided with cleaning supplies and not given adequate time to use them if they were provided. (Dkt. 15 at p. 7A.) Failure to provide adequate cell cleaning supplies must be evaluated in the light of the overall squalor at the prison. Hoptowit, 753 F2d 784. Failure to provide adequate cell cleaning supplies necessary to maintain minimally sanitary cells which seriously threatens an inmate's health, amounts to a violation of the Eighth Amendment. (Id.; violation found where other unsanitary conditions existed such as standing water, flooded toilets and sinks, and dank air.) While inmates are responsible for cleaning their own cells, the ADC provides disinfectant spray, a scrub brush and a broom and/or mop to the inmates at least three times a week. (SOF at ¶ 26.) Aros has not alleged any other unsanitary conditions existing within the ADC which would cause his cell to not maintain a minimal sanitary condition. As such, Defendants are entitled to judgment as a matter of law. k. Visitation Aros alleges that the noise levels during visitation were excessive and undermined the quality of his visits with his family. (Dkt. 15 at p. 7A; SOF at ¶ 27.) Aros was not denied visitation; he simply did not like the conditions in which the visitation took place. (SOF at ¶ 27.) Defendants admit that there is glass that divides the visitation area and that the inmate and visitor communicate through the glass. (SOF at ¶ 27.) This fact does not deprive Aros of life's basic necessity and therefore Defendants are entitled to judgment as a matter of law.

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2.

There is No Evidence That the Defendants Failed the Subjective Test.

Aros does not satisfy the second requirement because he fails to establish that any of the named Defendants knew of, and disregarded, an "excessive risk" to his health or safety. Knowledge of a mere possibility of potential harm does not satisfy the requisite knowing disregard of an excessive risk required to establish an Eighth Amendment violation. See Farmer, 511 U.S. at 843 (requiring the prison official to have disregarded a substantial risk of serious harm) (emphasis added). Aros cannot establish that any of the named Defendants were aware of alleged harmful conditions or resulting alleged injury. Aros fails to make the requisite showing as to Defendants' state-of-mind, i.e. that they were deliberately indifferent to a substantial risk of serious harm to him. Aros' alleges that his injuries include sleep deprivation, lack of meaningful exercise and exacerbation of his ongoing degression. (Dkt. 15 at p. 7B.) Because Aros was never subjected to a risk of serious harm, his claim must fail. Further, Aros cannot establish that if was subjected to a serious risk of harm that Defendants knew this and disregarded the risk. If anything, the facts clearly support that the ADC made several attempts to rectify or make changes. (i.e. changed his light bulb, provided new mattress, attempted to get pillow, constructed pigeon cages, purchased items to deter pigeons, etc...). He cannot establish an injury or that the Defendants knew of and disregarded any risk to his health or safety. Therefore, a trier of fact could not conclude--without impermissibly

speculating--that the Defendants knew of any risk to Aros while incarcerated in CB-7. Consequently, Defendants are entitled to summary judgment as to Aros' Eighth Amendment claim. 3. Aros' Complaint is Barred Because he is Unable to Establish the Requisite Physical Injury.

Aros seeks compensatory damages and punitive damages for sleep deprivation, lack of meaningful exercise and exacerbation of his ongoing depression. (Dkt. 15 at p. 7B.) The Prison Litigation Reform Act bars inmates from pursuing claims for damages for mental and emotional injury without a prior showing of physical injury. See 42 U.S.C. § 1997e(e). "No Federal civil

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action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." Id. The inmate must show more than a de minimis physical injury in order to recover

compensatory damages. Oliver v. Keller, 289 F. 3d 623, 629 (9th Cir. 2002). Section 1997e(e) only applies to claims for mental and emotional injury. (Id.) Aros is not entitled to compensatory damages for mental or emotional injury because he cannot establish that he suffered more than a de minimis injury. The conditions of Aros' confinement did not subject him to a risk of his health or safety. Aros alleges "sleep deprivation, denial of meaningful exercise; exacerbation of Plaintiff's mental illness." (Dkt. 15 at p. 7B.) Aros was only in CB-7 from June 2003 to April 2004, (10 months) and he did not suffer injury during this time period. When questioned as to his physical injury, Aros stated that he only requested treatment at CB-7 for trouble sleeping and for hemorrhoids. (SOF at ¶ 30.) He stated that he had physical symptoms caused from his depression to include bad headaches and fatigue. (Id.) However, he also stated that he suffered from depression prior to entering CB-7 and was receiving medication for depression since 1999. (Id.) Aros has no evidence of requisite injury caused by the conditions of confinement in CB-7 and his Complaint should be dismissed. Because Aros does not meet the requirement of more than a de minimis injury, his request for compensatory damages is barred pursuant to § 1997e(e). D. Defendants are Entitled to Qualified Immunity.

Government officials who perform discretionary functions generally are entitled to qualified immunity from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), explained why qualified immunity should be determined early in the proceedings: A ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." As a result, "we repeatedly have stressed

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the importance of resolving immunity questions at the earliest possible stage in litigation." Id. at 200-01 (internal quotations omitted). This requirement calls upon courts, not juries, to settle the ultimate questions of qualified immunity. In Saucier, the Supreme Court established a two-step evaluation of qualified immunity. The analysis contains both a constitutional inquiry and an immunity inquiry. For the

constitutional inquiry, courts must determine this threshold issue: "based upon the facts taken in the light most favorable to the party asserting the injury, did the officer's conduct violate a constitutional right?" Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) (citing Saucier, 533 U.S. at 201-05). If there was a constitutional violation, "the second inquiry is whether the officer could nevertheless have reasonably but mistakenly believed that his or her conduct did not violate a clearly established constitutional right." Id. The Supreme Court explained that determination of the threshold constitutional inquiry is intended to "set forth principles which will become the basis for a holding that a right is clearly established" in later cases. Saucier, 533 U.S. at 201. The Court further explained that "[t]he law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case." Id. Thus, it is necessary for the Court to first consider the constitutional inquiry. In this first step of the Saucier analysis, the Court must determine whether Defendants violated Aros' Eighth Amendment right to be free from cruel and unusual punishment. In relation to Aros' claims against Defendants Schriro, Schaulin, Duarte and Rivas, Aros must establish that they directed, participated in, or had knowledge of specific conditions of confinement that resulted in the deprivation of a constitutional right. Aros clearly fails the first step of the Saucier analysis. Aros' conditions of confinement do not rise to the level of a constitutional violation. Aros freely admits that he is provided with food, clothing, shelter, hygiene, sanitary facilities and necessary medical attention. (SOF at ¶¶ 5, 6, 7, 8, 10, 15, 28.) Because he cannot establish that he

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is "denied the minimal civilized measures of life's necessities" there is no constitutional violation. (See discussion supra at pp. 7-13.) If the Court should determine that Aros' allegations meet the first Saucier step, the second inquiry is whether the law at the time of the alleged constitutional violation was clearly established. Saucier, 533 U.S. at 201-02. "[T]he right the official is alleged to have violated

must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). To determine that the law was clearly established, the Court need not look to a case with identical or even "materially similar" facts. Hope v. Pelzer, 536 U.S. 730, 739-41 (2002); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir. 2003). Rather, the "standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that [his] conduct deprived a victim of his rights, [he] is not entitled to qualified immunity." Haugen v. Brosseau, 339 F.3d 857, 873, (9th Cir. 2003); see also Pelzer, 536 U.S. at 740 n. 10 ("The object of the `clearly established' immunity standard is not different from that of `fair warning' ....") (citation and alteration omitted). In the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established for qualified immunity purposes, including decisions of state courts, other circuits, and district courts. Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). Even unpublished decisions of district courts may inform the qualified immunity analysis. Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002). The law was not clearly established at the time of Defendants' actions. A review of case law fails to provide a legal precedent establishing that lack of a pillow, 80 degree temperatures in a cell, wearing clothes inside cells, lack of a trash can, lack of access to restrooms for one hour, pigeon droppings in outdoor exercise areas, noise levels at visitation time or the infrequent use of

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cleaning supplies in individual cells rises to the level of an Eighth Amendment violation. No case law defines Defendants' actions as unconstitutional. (See discussion supra at pp. 7-13.) Defendants are entitled to qualified immunity from liability for civil damages because their conduct did not violate any clearly established statutory or constitutional rights of inmate Aros. Moreover, Defendants are unaware of any circuit precedent holding that the conduct at issue in this case violated a clearly established law. Because there are no facts or legal precedent

establishing that Defendants' conduct violated Plaintiff's Eighth Amendment right, they are entitled to qualified immunity. E. Aros' 42 U.S.C. § 1983 Claim Fail For Lack of Affirmative Involvement by Defendants.

Under § 1983, Aros must allege he suffered specific injury as a result of the specific conduct of an individual prison official, and show an affirmative link between the injury and the conduct of Defendants. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir. 1984). Any notices, inmate letters, grievances, grievance appeals, alleged correspondence to, or communication with Defendants after the alleged incident, are not sufficient to state a claim for 42 U.S.C. § 1983 relief. Subsequent knowledge or investigation, occurring "after the fact", is not a sufficient basis upon which to establish § 1983 liability. May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). To state a claim, Aros must present a short, plain statements telling the Court: (1) the constitutional right he believes was violated; (2) name of the person who violated the right; (3) exactly what that individual did or failed to do; (4) how the action or inaction of that person is connected to the violation of his constitutional right; and, (5) what specific injury he suffered because of that person's conduct. Id. If the person named as a Defendant was a supervisory official, Aros must either state that Prison Official personally participated in the constitutional deprivation (and tell the Court the five things listed above), or Plaintiff must state, if he can do so

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in good faith, that the prison official was aware of the similar widespread abuses in the prison, but with deliberate indifference to his constitutional rights, failed to take action to prevent further harm to him (and tell the Court facts to support the claim). King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Conclusory allegations that a Defendant, or group of Defendants, has violated a constitutional right are not acceptable and must be dismissed. See Jones v. Community

Redevelopment Agency, 733 F.2d 646. 649-650 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a 42 U.S.C. § 1983 claim and insufficient to defeat a Rule 12(b)(6) dismissal). Aros alleges that he raised his issues informally or in grievances to the Defendants and they denied him relief as to the majority of the issues. His Complaint, as it relates to §1983, contains nothing but allegations that prison officials allegedly violated his constitutional rights because they "denied relief on all issues." (Dkt. 15 at p. 7A.) Therefore, Aros' Complaint fails as a matter of law to state a claim pursuant to 42 U.S.C. § 1983. In addition, complaint against a state officer in his or her individual capacity must be based on that individual's personal involvement because § 1983 liability cannot be based on a theory of respondeat superior. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978); West v. Atkins, 487 U.S. 42, 54 n.12 (1988); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). Aros fails to establish that Defendants Schriro or Rivas were personally involved in his conditions of confinement, or that they directed, participated in, or had knowledge of the alleged misconduct at the time it occurred, they have no constitutional liability to him in this action. Because Aros fails to show affirmative involvement on behalf of Defendants and respondeat superior does not apply, his case should be dismissed. CONCLUSION Based on all of the foregoing reasons, Defendants are entitled to summary judgment and Plaintiff's Complaint should be dismissed in its entirety.

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RESPECTFULLY SUBMITTED this 22nd day of June, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

Original and one copy filed this 22nd day of June, 2006, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Armando R. Aros III #95001 ASPC ­ Eyman/Rynning Unit P.O. Box 3100 Florence, AZ 85232 Plaintiff Pro Se

s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS05-0367/RM#___________ 966232

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