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

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND, Bar No. 022124 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-7690 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KEITH ROBERT BARDEN, No. CV 04-0138 PHX EHC (GEE) Plaintiff, v. DORA B. SCHRIRO, et al., Defendants. Defendant,1 by and through undersigned counsel, Replies in support of her motion to dismiss [Dkt. 17] this action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Plaintff, in his response [Dkt. 19], fails to present any evidence or argument that he exhausted his prison administrative remedies prior to initiating his §1983 lawsuit, as mandated by 42 U.S.C. § 1997e(a). Therefore, Defendant is entitled to judgment as a matter of law. This Reply is supported by the accompanying Memorandum of Points and Authorities. DEFENDANT'S REPLY IN SUPPORT OF HER UNENUMERATED RULE 12(B)(6) MOTION TO DISMISS

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Dora Schriro

Case 2:04-cv-00138-EHC-GEE

Document 20

Filed 10/31/2005

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MEMORANDUM OF POINTS AND AUTHORITIES In response to Defendant's motion to dismiss, Plaintiff attaches several Health Needs Requests [not relevant to exhaustion] and a copy of his September 9, 2003, inmate letter submitted directly to the Director of ADC stating "all that I am seeking is to be comfortable in my own body and be relieved to (sic) the constant depression and anxiety." Plaintiff also attached a copy of Dr. Pam McCauley's October 28, 2003, inmate letter response to Plaintiff's September 9, 2003 inmate letter in which she documented that Plaintiff "[has] been seen frequently by mental health staff and you have received medications for your depression at various times. If you wish to discuss your current mental health symptoms with mental health staff, please send an HNR. reassignment will not be considered per ADC policy." [Dkt. 19.] As set forth in her motion to dismiss [Dkt. 17], an inmate letter sent directly to the Director of ADC does not satisfy the procedure identified in Department Order section 802 §§ 08 to exhaust the available prison administrative remedy related to medical or mental health care. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). For these reasons, and those stated in Defendant's Motion to Dismiss, Plaintiff's Complaint should be dismissed pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies on this claim prior to suit. RESPECTFULLY SUBMITTED this 31st day of October, 2005. Terry Goddard Attorney General Gender

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

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Case 2:04-cv-00138-EHC-GEE Document 20 Filed 10/31/2005 Page 2 of 3

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Original e-filed this 31st day of October, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Case 2:04-cv-00138-EHC-GEE Document 20 Filed 10/31/2005 Page 3 of 3

Keith Robert Barden, #155866 ASPC ­ Winchester - Tucson P.O. Box 24407 Tucson, AZ 85434 s/A. Palumbo____ Secretary to: Catherine M. Bohland IDS05-0269/RSK:G
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