Free Supplement - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

TERRY GODDARD Attorney General J. Randall Jue Assistant Attorney General State Bar No. 014816 1275 West Washington Phoenix, Arizona 85007-2926 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, Plaintiff, v. Conrad Luna, et al., Defendants. DEFENDANTS' SUPPLEMENTAL BRIEF IN SUPPORT OF REFUSAL TO PRODUCE RESTRICTED POLICIES No. 03-CV-2373 PHX SRB (JI)

Defendants,1 through undersigned counsel, file this supplemental brief in support of their refusal to produce restricted Department Order nos. 601.05-601.12, 608.04-608.09, 706, and 804.05 and 804.08 per the Court's Order (Dkt. 126). This supplemental brief is supported by the attached Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED on this 29th day of June, 2006. TERRY GODDARD Attorney General

s/ J. Randall Jue J. RANDALL JUE Assistant Attorney General Attorneys for Defendants ///
1

Luna, Stewart, James, Emore, Pinson, Hewitt, Nelson, Fridenmaker, Cooper, and

Schriro.
Case 2:03-cv-02373-SRB Document 129 Filed 06/29/2006 Page 1 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I.

MEMORANDUM OF POINTS AND AUTHORITIES On December 30, 2005, the Plaintiff filed a Motion to Compel and for Sanctions ("Motion to Compel"). (Dkt. 108.) In the Motion to Compel, the Plaintiff claims that he needs the Arizona Department of Corrections' ("ADC") restricted policies based on the following: DO 608, 706, and 804 will show who, where, and how video, audio, and photographic secured evidence is to be maintained as in the evidence secured on May 1, 2003. DO 601 will show that all Administrative Investigations, even "factfindings" into any allegations into ADC staff are documented, even if ADC believes the accusations are unfounded. Defendant Luna claims that he conducted a "fact-finding" into Plaintiff: being the focus of targeted abuse by ADC officers at Rynning Unit Prison, but there is no documentation produced supporting this. Defendants claim none exists. DO 601 will show if that if no documentation exists, no "fact-finding" took place. Defendants claim security issues. Plaintiff asserts security issues are irrelevant under federal law, and that the requested documents are calculated to lead to admissible evidence. (Motion to Compel.) The Defendants contend that their refusal to produce restricted Department Orders is warranted because (1) the restricted Department Orders are not likely to lead to admissible evidence, (2) the Plaintiff has no First Amendment right to access the restricted policies, and (3) even if he does, a prison regulation impinging on an inmate's constitutional rights "is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987). THE RESTRICTED DEPARTMENT ORDERS ARE NOT LIKELY TO LEAD TO ADMISSIBLE EVIDENCE According to the Motion to Compel, the Plaintiff apparently believes that the restricted Department Orders will establish how the alleged unedited videotape should have been preserved after the incidence occurred on May 1, 2003, and show that Defendant Luna must not have conducted an investigation into the allegations of abuse by his subordinates if not documentation was generated. However, the Plaintiff's contentions

Case 2:03-cv-02373-SRB

Document 129

2

Filed 06/29/2006

Page 2 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

are not supported by the contents of the restricted Department Orders. It is clear that the contents of the Department Orders will not likely lead to admissible evidence. Department Order 601 pertains to Administrative Investigations. This order

outlines the steps to be followed for administrative investigations by supervisors generally. However, it does not provide any evidence or will not likely lead to any evidence establishing the actions or knowledge of any of the Defendants in this case. In addition, this order does not provide any guidelines for the preservation of evidence. Department Order 608 pertains to the ADC's policy on internal criminal investigations. The instant case does not involve any criminal investigations. This case boils down to two fundamental questions: (1) did the Defendants fail to protect the Plaintiff in violation of the Eighth Amendment's prohibition of cruel and unusual punishment, and (2) did the Defendants retaliate against the Plaintiff for exercising his First Amendment Right to access the courts in a lawsuit against another correctional officer. Department Order 706 governs the standard responses for managing incidents and emergencies. It pertains directly to the operating procedures for ensuring the safety and welfare of people involved in emergency situations. The Plaintiff's case does not involve an emergency situation. He contends that some of the Defendants failed to protect him on May 1, 2003, after he had warned them previously of abuse by other correctional officers. He contends that the Defendants either attacked him directly on May 1, 2003, or filed false reports in retaliation for him filing a lawsuit against another correctional officer. Thus, none of his claims involve the Defendants' responses or management of emergency incidences. Department Order 804 pertains to the appropriate use of force for the control of inmate behavior. This order contains extensive information involving the internal security of the ADC prison system. The dissemination of this information to the thousands of inmates who populate the ADC system would endanger the lives of the correctional

Case 2:03-cv-02373-SRB

Document 129

3

Filed 06/29/2006

Page 3 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

officers, the inmates, and the public.

Moreover, the Plaintiff does not need this

information to litigate his case. The Plaintiff does not allege that Defendant James, or any other Defendant, used excessive force against him on May 1, 2003. Rather, he contends that James used force against him in retaliation for filing a lawsuit against another correctional officer. 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 parties agree that a physical confrontation occurred between Defendant James and the Plaintiff on May 1, 2003. The issues--from the Plaintiff's perspective--are (1) whether there is any evidence that James initiated the physical contact; and, if so, (2) did he do so in retaliation for the Plaintiff exercising his constitutional right to seek relief in a lawsuit against another correctional officer. Department Order 804 does not contain any information that would establish the motivation for James touching the Plaintiff or whether he initiated the contact, and not the Plaintiff. In sum, the Plaintiff fails to establish that the restricted Department Orders contain any information that is likely to lead to admissible evidence. Therefore, for that reason alone, the Court should deny the Plaintiff's request to access those orders.

///

Case 2:03-cv-02373-SRB

Document 129

4

Filed 06/29/2006

Page 4 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

II.

PRECLUDING THE PLAINTIFF FROM VIEWING THE ADC'S RESTRICTED POLICIES DOES NOT INFRINGE ON HIS FIRST AMENDMENT RIGHT TO ACCESS THE COURTS Under the First Amendment, a prisoner has a broad right to petition the government

for a redress of his grievances. Bounds v. Smith, 430 U.S. 817, 821 (1977). Moreover, prison authorities are precluded from penalizing a prisoner for exercising those rights. Bounds, 430 U.S. at 821-832; see also Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.1995) (Prison officials may not punish a prisoner for using hostile language in his written grievance)). However, in Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court significantly narrowed a prisoner's right of access to the courts. In Lewis, the Court held that inmate must show that a non-frivolous legal claim was frustrated. 518 U.S. at 351. An inmate must show that he was actually harmed; for example, the inmate must show that he could not file a complaint or that the court dismissed his complaint because of a specific action by a prison official. See Lewis, 518 U.S. at 351-352. Here, the Plaintiff fails to show how he has been, or will be, harmed--under the Lewis standard--by the Defendants' failure to produce the restricted Department Orders. The Plaintiff claims that he needs the restricted Department Orders to show that the videotape should have been preserved. He further claims that the restricted Department Orders will show that the lack of documentation means that the Defendants did not conduct a proper investigation into his claims of abuse by subordinates. However, all of his claims merely mean that--at the most--his case may be benefited by the requested discovery. Dennison fails to establish that he will suffer any actual injury to his litigation, such as the dismissal of his case. Therefore, because the Plaintiff fails to establish a constitutional right to access the restricted Department Orders, the Defendants request that the Court uphold their refusal to produce these documents to the Plaintiff.

///
Case 2:03-cv-02373-SRB Document 129 Filed 06/29/2006 Page 5 of 9

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

III.

THE ADC'S REGULATION OF PROHIBITING THE INMATES FROM ACQUIRING INFORMATION RELATED TO THE INTERNAL SECURITY OF ITS PRISONS IS RATIONALY RELATED TO LEGITIMATE PENOLOGICAL INTERESTS Even if the Court were to conclude that the ADC regulation of prohibiting the

Plaintiff from viewing the restricted Department Orders infringes on his First Amendment right to litigate his federal lawsuit, it should find that the regulation is permissible because it is reasonably related to legitimate penological interests. In Turner, the Supreme Court determined that a deferential standard of review for prisoner claims of constitutional violations was necessary to keep the courts out of the day-to-day business of prison administration, which "would seriously hamper [prison officials'] ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." 482 U.S. at 89. More recently, the Court emphasized that the courts owe "substantial deference to the professional judgment of prison administrators." Overton v. Bazzetta, 539 U.S. 126, 132 (2003). In Procunier v. Martinez, 416 U.S. 396, the Court articulated the general difficulties facing prison officials: Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Id., at 404-405. In the present case, the Court stated in its Order that there is no "`prison security' privilege.'" (Dkt. 126.) The Defendants do not disagree. However, they contend that the

Case 2:03-cv-02373-SRB

Document 129

6

Filed 06/29/2006

Page 6 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

United States Supreme Court has consistently recognized that the courts should always strike the balance in favor of institutional security versus any constitutional interests of an inmate. In Hudson v. Palmer, 468 U.S. 517, the Court emphasized the importance of achieving and maintaining safety in prisons which are populated by "persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct": Within this volatile "community," prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. Id., at 526-27. In its Order, the Court cited to Kerr v. United States District Court, 426 U.S. 394 (1976) in support of its argument that "the court should balance the public interest in the confidentiality of governmental information against the need of a litigant to obtain data." (Dkt. 126.) The Defendants contend that Kerr is not applicable to the instant case. In Kerr, the inmate plaintiffs sought the personnel files of State employees and prisoners' files. Id. The petitioners in Kerr opposed the disclosure of the documents based on a governmental privilege of confidentiality. 426 U.S. at 404. The petitioners claimed that "turning over the requested documents would result in substantial injury to the State's prison-parole system by unnecessarily chilling the free and uninhibited exchange of ideas between staff members within the system, by causing the unwarranted disclosure and consequent drying up of confidential sources, and in general by unjustifiably compromising the confidentiality of the system's records and personnel files." Id., at 405. Here, the Defendants refuse to produce the restricted Department Orders because the disclosure of those documents would directly jeopardize the safety and security of the

Case 2:03-cv-02373-SRB

Document 129

7

Filed 06/29/2006

Page 7 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ADC prison system.

How the ADC handles emergency situations, controls inmate

behavior, and conducts internal investigations should not be readily available to inmates, who are in prison because of their anti-social behavior. The Plaintiff is not merely a "litigant" trying to obtain information that might benefit his federal case. He is a convicted criminal. The Court cannot guarantee or prevent the Plaintiff from disseminating the information in the restricted Department Orders to the thousands of other inmates. In Turner, the Supreme Court set forth four factors "relevant in determining the reasonableness of the regulation at issue": (1) whether a prison regulation has a valid, rational connection to a legitimate governmental interest; (2) whether alternative means for exercising the right are open to inmates to exercise the asserted right; (3) what impact an accommodation of the right would have on guards and inmates and prison resources; and (4) whether there are ready alternatives to the regulation. 482 U.S., at 89-91. The ADC regulation of prohibiting the dissemination of information related to the safe and secure operation of the prison bears a rational relation to the ADC's valid interests in maintaining internal security. The regulation promotes internal safety for everyone who is inside a prison's walls. As for an alternative means for the Plaintiff to exercise his First Amendment right to access the court, he will be able to question the Defendants or the witnesses at trial about why they failed to document their activities and/or failed to preserved documentation such as a videotape. With respect to the impact of the

accommodation on guards and other inmates, it would severely impair the ability of the correctional officers to protect themselves and the other prisoners. When that is the case, the courts are "particularly deferential" to prison administrators' regulatory judgments. Turner, 482 U.S. at 90. Finally, the Defendants assert that there are not any ready alternatives to the ADC's regulation that inmates must not have access to restricted Department Orders, which contain information regarding how the ADC handles emergency situations, controls inmate behavior, and conducts internal investigations. ///

Case 2:03-cv-02373-SRB

Document 129

8

Filed 06/29/2006

Page 8 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

IV.

CONCLUSION Based on the foregoing, the Court should deny the Plaintiff's Motion to Compel and

uphold the Defendants refusal to produce the restricted Department Orders. RESPECTFULLY SUBMITTED on this 29th day of June, 2006. TERRY GODDARD Attorney General s/ J. Randall Jue J. RANDALL JUE Assistant Attorney General Attorneys for Defendants

Original e-filed this 29th day of June, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, Arizona 85003 COPY mailed on the same date to: Andre Almond Dennison, # 143931 ASPC ­ Lewis ­ Morey Unit P.O. Box 3300 Buckeye, Arizona 85326 Plaintiff Pro Per s/ C. Jordan Secretary to J. Randall Jue
IDS04-0294/RM G2004-20632 967447

Case 2:03-cv-02373-SRB

Document 129

9

Filed 06/29/2006

Page 9 of 9