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

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Terry Goddard Attorney General J. Randall Jue State Bar no. 014816 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ANDRE ALMOND DENNISON, Case No: CV 03-2373 PHX-SRB (JI) Plaintiff, v. CONRAD LUNA, et al., Defendant. Defendants,1 through undersigned counsel, respectfully move for summary judgment dismissing this lawsuit in its entirety pursuant to Rule 56, Federal Rules of Civil Procedure. This Motion is supported by the attached Memorandum of Points and Authorities and concurrently filed Statement of Facts. RESPECTFULLY SUBMITTED this 7th day of September, 2005. Terry Goddard Attorney General s/J. Randall Jue J. Randall Jue Assistant Attorney General Attorneys for Defendant
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DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Stewart, Schriro, Luna, Emore, Pinson, Hewitt, Nelson, Fridenmaker, Cooper, and James.
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MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff Andre A. Dennison ("Dennison"), no. 143931, is an inmate currently in the custody of the Arizona Department of Corrections ("ADC"). (Statement of Facts in Support of Defendants' Motion for Summary Judgment ["DSOF"] ¶ 1.) On December 1, 2003, Dennison filed his Original Complaint ("Complaint") pursuant to 42 U.S.C. § 1983 ("§ 1983"). (DSOF ¶ 2.) In his Complaint, Dennison alleged that the Defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment and his First Amendment Rights. (Id.) He sued the Defendants in both their individual and official capacities. (Id.) He is seeking a declaratory judgment against the Defendants, injunctive relief, compensatory damages, and punitive damages. (Id.) In Count I of his Complaint, Dennison alleges that he notified Defendants Luna and Stewart on several occasions regarding the misconduct and abuse he allegedly received from various ADC officers. (DSOF ¶ 3.) He claims that the Defendants were deliberately indifferent in their duty to protect him. (Id.) In Count II, Dennison claims that on May 1, 2003, Defendant James assaulted him in retaliation for a lawsuit Dennison filed against Correctional Officer ("CO") Jennifer Thelen. (Id.) He further alleges that Defendants Cooper, Fridenmaker, Emore, Nelson, Pinson, and Hewitt also retaliated against him by filing false reports and filing a fraudulent reclassification hearing. (Id.) He claims that the retaliation prevented him from exercising his First Amendment rights. (Id.) He further claims he suffered cuts to his arms and hand, punitive segregation, and emotional distress. (Id.)2 /// In Count III of his Complaint, Dennison claims he was denied the right to Due Process on June 5, 2003. (DSOF ¶ 4.) The Court dismissed Count III without prejudice on May 20, 2004. (Id.)
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Count I Dennison claims that the Defendants failed to respond to his inmate letters and grievances. (DSOF ¶ 15.) ADC's grievance system is governed by Department Order ("DO") 802, which sets forth the procedures inmates must follow to complete the prison administrative grievance process for "property, staff, visitation, mail, food services, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement" issues through the Director's level. (DSOF ¶ 16.) The processing of a standard grievance works as follows: (1) an inmate must file an "inmate letter" attempting to informally resolve a complaint within 10 work days after he becomes aware of a specific problem; (2) if the inmate is not satisfied with the response to his letter, he may file a formal grievance within 10 calendar days from the date he received the response to the grievance coordinator; (3) the grievance must only address one issue; (4) if the inmate is not satisfied with the response of the grievance coordinator, he may file a grievance appeal within 10 calendar days from the date he received the response to a higher official (e.g., a Deputy Warden, or Warden), or the Facility Health Administrator for medical grievances; (5) if the inmate is not satisfied with the response to the grievance appeal, he may appeal to the ADC Director within 10 calendar days from the date he receive the response. (DSOF ¶ 17.) The Director's response is final, thus exhausting available administrative remedies for standard grievances. (Id.) From June 2001 until November 2002, Defendant James was the Grievance Coordinator for the Arizona State Prison Complex ("ASPC") ­ Eyman, Rynning Unit. (DSOF ¶¶ 14, 18.) James' duties were to review, investigate, respond to, and track inmate grievances submitted at the Unit. (DSOF ¶ 18.) While the grievance coordinator, James received several grievances from Dennison regarding his suspicion at staff were giving him false disciplinary tickets. (DSOF ¶ 19.) Per policy, James returned several of those

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grievances unprocessed, because issues with staff relating to a disciplinary ticket should be addressed in the disciplinary appeals process. (Id.) On March 30, 2002, Dennison sent Defendant Luna, who was the Deputy Warden of ASPC-Eyman, Special Management Unit II ("SMU II"), an Inmate Letter concerning issues he was having with Lt. Lewis. (DSOF ¶¶ 5, 20.) Dennison's letter claimed that Lt. Lewis was issuing unwarranted disciplinary reports and placing him on Restricted Property status and cell restriction. (DSOF ¶ 20.) On April 10, 2002, Luna responded to

Dennison's Inmate Letter. (DSOF ¶ 21.) In his response, he explained that ADC records indicate that Lt. Lewis had appropriately addressed Dennison's failure to obey an order to walk in a prescribed area. (Id.) He also advised Dennison that he should follow the rules and comply with directives to avoid detention and/or disciplinary action. (Id.) On April 4, 2002, Dennison sent Luna another Inmate letter. (DSOF ¶ 22.)

Dennison's letter claimed that Lt. Lewis and his subordinate staff were targeting him. (Id.) On April 16, 2002, Luna met with Dennison to discuss his concerns with the staff. (DSOF ¶ 23.) Dennison admitted that he met with Luna to discuss his issues with staff. (Id.) Luna provided Dennison with the opportunity to air his grievances at this meeting. (Id.) On April 24, 2002, Luna responded to Dennison's April 4, 2002 Inmate Letter. (DSOF ¶ 24.) Luna explained to Dennison that he was afforded an opportunity to air his concerns at the April 16, 2002 meeting. (Id.) On June 19, 2002, Dennison submitted an inmate grievance appeal to his grievance coordinator for Defendant ADC Director Terry Stewart. (DSOF ¶¶ 6, 25.) His appeal claimed that his issues with staff had not been addressed. (DSOF ¶ 25.) On July 7, 2002, Stewart responded to this grievance appeal. (DSOF ¶ 26.) In reviewing the appeal, he determined that Dennison's claims had no merit because he had failed to provide any documentation to substantiate his allegations. (Id.)

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Dennison asserts that so many officers were involved in misconduct against him that it was "more prudent for me to go after the supervisors." (DSOF ¶ 28.) However, Luna and Defendant Emore, who was the Day Shift Commander for the Rynning Unit, maintain that they fully investigated Dennison's claims of alleged staff misconduct. (DSOF ¶¶ 9, 27.) Count II Dennison's claims in Count II arose from a classification hearing. The ADC maintains a classification system to house inmates at custody levels commensurate with their risk assessment and classification scores. (DSOF ¶ 33.) Custody levels are described on a scale of one to five, with five requiring the highest security. (Id.) Inmates are assigned two primary classification scores. (DSOF ¶ 34.) The "P" score refers to the level of risk the inmate poses to the public. (Id.) The "I" score refers to the level of risk the inmate poses within the institution. (Id.) DO 801 governs classification policy. (DSOF ¶ 35.) The purpose of this policy is to outline the ADC's classification system and procedures for "initial classification and subsequent reclassification action addressing security and programming needs." (Id.) The Institutional Classification Committee ("ICC") examines an inmate's records, hears from the inmate, and renders a decision on whether to change or maintain the inmate's classification scores. (DSOF ¶ 36.) Absent security concerns, every inmate is allowed to be present, make a statement, and present information to the ICC at classification hearings with the exception of a Type 89 review. (DSOF ¶ 37.) A Type 89 review is a quick paperless review of an inmate's record that does not affect his/her P/I score. (Id.) An inmate is not necessarily required to be present at a Type 89 review. (Id.) The ADC reviews an inmate's classification levels every 180 days or after an inmate is found guilty of certain Inmate Disciplinary Violations. (DSOF ¶ 38.) When officials convict an inmate of a major disciplinary violation, that inmate is automatically

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referred to the ICC for a classification review. (Id.) The ADC formally notifies the inmate of an upcoming classification hearing using an Institutional Classification Referral Notice ("Referral Notice"). (DSOF ¶ 39.) A Referral Notice explains the reason for the

upcoming classification review, provides a period for the inmate to prepare for the hearing, and explains the inmate's options during the hearing. (Id.) The inmate signs the Referral Notice acknowledging receipt of the notice. (Id.) In the event that the inmate refuses to sign the referral notice, an officer signs the document and a second officer witnesses the refusal. (Id.) The Referral Notice also allows an inmate to waive the five-day waiting period for the ICC to conduct the classification hearing. (DSOF ¶ 40.) When an inmate waives the five-day waiting period, the classification hearing may occur on the same day as the issuance of the Referral Notice. (Id.) If there is a security concern the inmate's right to appear, make a statement, and present information may be waived. (DSOF ¶ 41.) An inmate may waive his appearance at the ICC classification hearing if no change is expected in the inmate's institutional placement. (Id.) An inmate with a waived right to appear may still submit a written statement for consideration. (Id.) The classification review process involves three levels of review and an optional appeal. (DSOF ¶ 42.) The ADC classification review hearing uses a Reclassification Score Sheet (Form 801-4P). (Id.) After the Institutional Classification Committee ("ICC") conducts a hearing, it recommends a P/I classification score. (Id.) The ICC recommendation is reviewed by the Deputy Warden, who forwards the score sheet to the Central Classification Office for a final decision on the inmate's classification score. (Id.) On May 1, 2003, officers presented a Referral Notice to Dennison. (DSOF ¶ 43.) Dennison signed acknowledging receipt of the notice and waived the five-day waiting period. (Id.) On that date, the ICC held Dennison's classification review hearing. (DSOF ¶ 44.) Defendant Fridenmaker, who was a CO III at the Rynning Unit, and James attended

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Dennison's classification hearing. (DSOF ¶¶ 10, 44.) Dennison admitted that it was permissible for the ICC to have held his classification hearing on the same day as he received the Referral Notice. (DSOF ¶ 44.) However, he believes that he did not receive a classification hearing on May 1, 2003. (Id.) During his classification hearing, on May 1, 2003, Dennison indicated that he wanted to get an override to lower his P/I scores. (DSOF ¶ 45.) Fridenmaker explained to him that he was ineligible for a score reduction. (Id.) Dennison became upset and walked out of the classification hearing. (DSOF ¶ 46.) The ICC recommended reducing Dennison's classification score from a 4/2 to a 4/1 based on time frames. (Id.) When Dennison returned to the Programs area, Defendant Hewitt, who was a CO III at the Rynning Unit, explained to him that his classification hearing had been completed. (DSOF ¶ 47.) Hewitt told Dennison to return to his housing unit. (Id.) Dennison began to argue with Hewitt, claiming that his classification hearing had not been completed. (DSOF ¶ 48.) James stepped out of the programs office and verbally directed Dennison to return to his housing unit because his classification hearing had been completed. (DSOF ¶ 49.) James continued to order Dennison to leave. (Id.) Dennison admitted that he had returned to the Programs Area for his hearing after he had retrieved his papers from his cell. (DSOF ¶ 48.) According to the Defendants, after Dennison continued to refuse to leave, James ordered Dennison to turn around and submit to being handcuffed. (DSOF ¶ 50.) He refused to comply with James' orders to cuff up. (Id.) Dennison took a step back and raised his hands slightly and assumed a fighting stance. (DSOF ¶ 51.) At that point, Hewitt activated the Incident Management System ("IMS"). (DSOF ¶ 52.) Defendant Cooper, who was a Librarian at the Rynning Unit, and Emore heard the activation of the IMS. (DSOF ¶¶ 8, 52.) The staff member indicated that an inmate was refusing to cuff-up at the West Side of the Disciplinary area. (DSOF ¶ 52.) The West Side of the Disciplinary

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area is approximately 100 yards from the Resource Library, where Cooper was working at time. (Id.) The two areas were separated by a chain link fence. (Id.) James again ordered Dennison to cuff-up and approached him in attempt to place him in handcuffs. (DSOF ¶ 53.) Dennison pushed James ("the push"). (Id.) In response, James retrieved his OC spray and administered two short bursts of chemical spray. (Id.) Hewitt thought the chemical spray appeared to have little effect on Dennison. (Id.) Dennison admitted that Nelson and Fridenmaker witnessed the push and James' use of the pepper spray. (DSOF ¶ 54.) James again attempted to place Dennison in handcuffs. (DSOF ¶ 55.) Dennison punched James in the face. (Id.) The IMS response team began to arrive on the scene and they were able to subdue Dennison and place him in handcuffs. (DSOF ¶ 56.) According to Dennison, James shoved him twice and sprayed him with mace after he returned from his cell with his paperwork for the hearing. (DSOF ¶ 50.) When Dennison questioned James about getting his hearing, James called him names like "lawyer boy" and told him he should file a lawsuit against him. (Id.) Dennison recalls that James mentioned his lawsuit against Thelen. (Id.) Cooper had a direct view of Dennison throwing punches at the James. (DSOF ¶ 57.) From her vantage point, she could not identify the inmate or the staff member involved. (Id.) However, she did witness the inmate throwing punches at the officer. (Id.) Emore responded to the IMS call, but did not witness Dennison assault James. (DSOF ¶ 58.) Dennison asserts that no other officers were present when the altercation with James began. (DSOF ¶ 59.) Dennison alleges that he received a laceration on each arm and pain from the chemical spray as a result of the altercation with James. (DSOF ¶ 60.) Dennison admitted that he did not need follow up medical care for the alleged injuries he sustained on May 1, 2003. (Id.)

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Later that day, on May 1, 2003, Cooper, Emore, Hewitt, Pinson, Nelson, James, Fridenmaker reported the incident. (DSOF ¶ 61.) Dennison believes that only an officer who has witnessed the entire incident may submit a report. (DSOF ¶ 62.) The Defendants deny that they failed to protect Dennison. (DSOF ¶ 63.) On June 5, 2003, officers presented a Referral Notice to Dennison. (DSOF ¶ 65.) Dennison was referred to the ICC for review of his custody level and housing placement based on the outcome of the Disciplinary Hearing in case no. 03-A21-0408. (Id.) Dennison refused to sign the Referral Notice. (Id.) On June 14, 2003, Central Classification approved the reduction of Dennison's P/I score from a 4/2 to a 4/1. (DSOF ¶ 64.) Dennison did not request any witnesses and did not submit a list of potential witnesses. (DSOF ¶ 66.) On June 20, 2003, the ICC held Dennison's classification review hearing. (DSOF ¶ 67.) According to the inmate summary statement of the Reclassification Score Sheet, Dennison was present at the hearing but refused to sign the Reclassification Score Sheet because he wanted to wait for the full five-day waiting period. (Id.) The ICC recommended increasing Dennison's classification score from a 4/1 to a 5/5 and a transferring him to ASPC-Eyman, SMU I based on his conviction for a major disciplinary violation (assault on staff). (Id.) On June 30, 2003, Central Classification approved the increase of Dennison's P/I score from a 4/1 to a 5/5. (Id.) On July 14, 2003, Dennison submitted an Inmate Letter appealing his May 1, 2003 classification hearing. (DSOF ¶ 68.) Dennison asserted that he never attended this classification hearing. (Id.) Dennison admitted that he signed the five-day waiver. (Id.) Dennison believed his classification score should have been reduced from a 4/2 to a 3/1. (Id.) On August 15, 2003, Donna Clement, the former Offender Services Bureau Administrator, denied Dennison's classification appeal. (DSOF ¶ 69.) Ms. Clement

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reviewed Dennison's case, and in accordance with the Classification Operating Manual, he was ineligible for a reduction to (P-3) until December 6, 2003. (Id.) She determined that the ICC correctly reclassified Dennison from a 4/2 to a 4/1 and his housing placement was correct. (Id.) On July 19, 2003, Dennison submitted an Inmate Letter appealing his June 20, 2003 classification hearing. (DSOF ¶ 70.) Dennison asserted that he was not allowed to present certain witnesses at the classification hearing and did not receive a Referral Notice. (Id.) He also asserted that ICC incorrectly reclassified him under the Zero Tolerance Policy. (Id.) Dennison requested the ICC hold another classification hearing for him. (Id.) On August 15, 2003, Ms. Clement denied Dennison's classification appeal. (DSOF ¶ 71.) Ms. Clement reviewed Dennison's case, and in accordance with the Classification Operating Manual, the increase in his score was as the result of a serious disciplinary violation. (Id.) She determined that the ICC correctly reclassified Dennison from a 4/1 to a 5/5. (Id.) Cooper, Emore, Hewitt, James, and Fridenmaker affirmatively declare that they do not know CO Jennifer Thelen. (DSOF ¶ 73.) Dennison admitted that his retaliation claim (Count II) is based solely on his belief that the Defendants were good friends with Thelen. (DSOF ¶ 74.) Emore, Hewitt, Pinson, James, and Fridenmaker do not recall being informed, prior to being served with this lawsuit, that Dennison had filed a lawsuit against Thelen. (DSOF ¶ 75.) II. THE LAW A. Legal Standard for Summary Judgment.

The Court may grant summary judgment if the movant shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FRCP Rule 56(c). The disputed facts must be material. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, the nonmoving party must demonstrate a
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dispute "over facts that might affect the outcome of the suit under the governing law" to preclude entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The dispute must also be genuine. A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. 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 plaintiff must allege specific facts to support the claim. Id. Mere allegation and speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex Corp., 477 U.S. at 323. Therefore, summary judgment is proper if the nonmoving 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 of proof at trial. Id. To state a claim for relief under § 1983, a plaintiff must establish an affirmative link between the alleged injury and the conduct of the individual defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S.Ct. 598, 604-05 (1976). A plaintiff must allege that the official personally participated in the constitutional deprivation, or that an official was aware of widespread abuses, and with deliberate indifference to the inmate's constitutional rights, failed to take action to prevent further misconduct. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). B. Defendants Stewart and Luna Did Not Fail to Protect Dennison from Abuse by Other ADC Officers as Alleged in Count I.

The United States Supreme Court has held that mere negligent failure to protect an inmate from harm is not actionable under § 1983. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). In order to show that a prison official has violated the Eighth Amendment in failing to protect an inmate from harm, a claimant must meet two conditions: (1) the

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alleged constitutional deprivation must be, objectively, "sufficiently serious" so that the act resulted in the denial of "the minimal civilized measure of life's necessities;" and (2)the prison official must have a "sufficiently culpable state of mind, " i.e., he must act with deliberate indifference to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 83436 (1994). "Deliberate indifference describes a state of mind more blameworthy than negligence," id.; it has been equated with recklessness, id. at 836, "obduracy or wantonness, not inadvertence or good faith error," Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992); see also LeMaire v. Maass, 12 F.3d 1444, 1452 (9th Cir. 1993). The state of mind of each Defendant must be evaluated individually, as Defendants cannot be held liable for the acts or omissions of others. See generally Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001) (evaluating each defendant's Section 1983 liability individually). According to Dennison, he warned Luna and Stewart about the following misconduct: "Everything from false disciplinaries, refusing to feed [him], harassment through continuous malicious handcuffings and destructive cell searches, unauthorized deadlocks, denial of all prison jobs and education programs, shattering of [his]outside cell window, to physical violence." (Complaint at 4.) However, Dennison has failed to produce any evidence to support his claims. Dennison's ADC records show that Luna and Stewart had limited contact with him regarding alleged staff misconduct. More importantly, the evidence shows that Luna and Stewart responded appropriately to the risk of harm to Dennison and were not deliberately indifferent to Dennison's concerns. Dennison sent two Inmate Letters to Luna regarding problems that he was having with staff in the Spring of 2002. (DSOF ¶¶ 20-24.) Luna responded to both letters. (Id.) Luna even took the additional step of meeting with Dennison, which Dennison has acknowledged, to discuss his issues with staff. (DSOF ¶ 23.) As for Stewart, Dennison submitted one inmate grievance appeal to him, claiming that his issues with staff had not been addressed. Stewart denied the appeal because Dennison failed to substantiate his claims with any documentation. (DSOF ¶ 26.)

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Although it is apparent that Dennison was unhappy with how he perceived he was being treated by ADC staff, there is no evidence that he faced a substantial risk of harm. Furthermore, the evidence does not establish that Luna or Stewart acted unreasonably under the circumstances. See Andrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir. 1991) (finding that an inmate can establish reckless disregard by officials if they were faced with a pervasive risk of harm and "failed to respond reasonably to that risk.") Furthermore, Luna and Stewart cannot be liable under § 1983 based solely on their supervisory positions. See Jeffers, 267 F.3d at 915; see also Gibson, 963 F.2d at 854. Therefore, the Court must dismiss Luna and Stewart from this matter.3 C. Defendants James, Fridenmaker, Nelson, Pinson, Hewitt, Emore and Cooper Did Not Retaliate Against Dennison for Filing a Lawsuit Against a Colleague.

To prevail on a claim for retaliation, an inmate must show (1) that the prison official acted in retaliation for the exercise of a constitutionally-protected right, and (2) that the action "advanced no legitimate penological interest." Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997), cert. denied, 524 U.S. 936 (1998); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) ("A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline."); see also Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). The Ninth Circuit has recognized that "a chilling effect on a prisoner's First Amendment right to file prison grievances is sufficient to raise a retaliation claim." Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (citing Hines, 108 F.3d at 269). In his Complaint, Dennison claims that James assaulted him on May 1, 2003, in retaliation for filing a lawsuit against James' friends and colleagues at ADC. (Complaint at 5.) He further claims that that Fridenmaker, Nelson, Pinson, Hewitt, Emore, and Schriro, who was substituted for Stewart to the extent he is sued in his official capacity [Dkt. no. 4], must also be dismissed.
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Cooper filed false reports regarding the altercation on May 1, 2003, in retaliation for filing a lawsuit against their friends and colleagues at ADC. (Complaint at 5-A and 5-B.) Even viewing the evidence most favorably to Dennison, his claim in his Complaint--that James assaulted him in retaliation for pursuing grievances and lawsuits against James' friends and colleagues--is not supported by the evidence. Dennison

admitted that he went to the Programs area to sign reclassification paperwork. (DSOF ¶ 48.) He also admitted that he left the Programs area to get his paperwork so that he could have his hearing. (Id.) He also admitted that a verbal exchange ensued between himself and James after he returned to the Programs area, and James told him that he was either not going to get a hearing or had had his hearing. (Id.) According to Dennison, James called him names like "lawyer boy," told Dennison that he should file a lawsuit against him, and mentioned Dennison's lawsuit against Thelen before shoving Dennison. (Id.) The

sequence of events--as described by Dennison--does not support his contention that James shoved him in retaliation for filing a lawsuit against Thelen. Although James may have mentioned the Thelen lawsuit in the heat of their verbal dispute, it is clear that James did not shove or spray Dennison as punishment for him pursuing a lawsuit against Thelen. See Bruce, 351 F.3d at 1289 (defendant who improperly used the gang validation procedure to punish Plaintiff for exercising his First Amendment right to file grievances). Dennison has failed to produce any evidence to support the inference that a connection exists between James and a correctional officer named Thelen. As to Fridenmaker, Emore, Nelson, Pinson, Hewitt, and Cooper, Dennison has similarly failed to present any evidence to support his unsubstantiated conclusion that they purposely filed false reports in retaliation for him exercising his First Amendment right to file a lawsuit. There is no evidence to support his claim that a connection exists between Thelen and these defendants, other that the fact that all of them are correctional officers. Therefore, based on Dennison's own testimony, the Court must dismiss James, Fridenmaker, Emore, Nelson, Pinson, Hewitt, and Cooper from this case because there is

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no evidence that they retaliated against Dennison for exercising his First Amendment Right. D. The Eleventh Amendment Bars Dennison's Monetary Claim Against Defendants In Their Official Capacity

Dennison sued the Defendants in their official and individual capacities. (Complaint at 2-2-B.) A suit against a state official in his or her official capacity constitutes a suit against the official's office. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). A suit against a state official is no different from a suit against the State itself. Id. Neither a State nor its officials acting in their official capacities are "persons" for purposes of 42 U.S.C. § 1983. Id. Thus, this Court lacks jurisdiction. "An unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663 (1974); see also Missouri v. Fiske, 290 U.S. 18, 28 (1933); Hans v. Louisiana, 134 U.S. 1, 15 (1890). It is well established that even though a State is not a named party in an action, the suit may nonetheless be barred by the Eleventh Amendment. Id. Thus, a suit by an inmate (i.e., a private party) seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Id. Therefore, to the extent this action may be deemed an official-capacity suit, the monetary claim against the Defendants must be dismissed. E. The Defendants are Entitled to Qualified Immunity.

State officials sued in their individual capacity are entitled to qualified immunity from liability for civil damages unless their conduct violates clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). This immunity is not merely from liability, but from suit. Id. When a party asserts qualified immunity, the court must determine "whether, in light of clearly established principles governing the conduct in

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question, the [party asserting qualified immunity] objectively could have believed that his conduct was lawful." Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). A qualified immunity defense is subject to a two-step analysis. The initial inquiry is whether the alleged facts show that the defendant violated the plaintiff's constitutional rights. Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). If the allegations show that the defendant indeed violated the plaintiff's constitutional rights, the second inquiry is whether the law at the time of the alleged constitutional violation was clearly established. (Id. at 201-202). "[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 "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.) The Defendants are entitled to qualified immunity in this suit. The Defendants assert that Dennison has failed to allege a deprivation of any constitutional right. There are no facts establishing that the Defendants violated Dennison's Constitutional rights. Therefore, Dennison fails the first prong of the Saucier test. If the Court construes the Defendants' actions as involving a constitutional violation, the Defendants contend that they legitimately believed that their actions were lawful and they are entitled to qualified immunity. Furthermore, the Defendants are unaware of any circuit precedent holding that their conduct in this matter violated a clearly established law.
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Consequently, based on the foregoing, there is no evidence that the Defendants violated Dennison's Constitutional rights, and they are entitled to qualified immunity. CONCLUSION For the above-stated reasons, the Court must grant the Defendants' Motion for Summary Judgment. RESPECTFULLY SUBMITTED this 7th day of September, 2005. Terry Goddard Attorney General

s/J. Randall Jue J. Randall Jue Assistant Attorney General Attorneys for Defendant Original e-filed this 7th day of September, 2005 to: Clerk of Court United States District Court 401 West Washington Phoenix, AZ 85003 Copy of the foregoing mailed this same date to: Andre Dennison, no. 143931 ASPC-Eyman - SMU I P.O. Box 4000 Florence, AZ 85232

s/Colleen Jordan Secretary to: J. Randall Jue IDS04-0294
#923039

Case 2:03-cv-02373-SRB

Document 88

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Filed 09/07/2005

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