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

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Terry Goddard Attorney General J. Randall Jue, 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 DENNISON, No. 03-CV-2373 PHX SRB (JI) Plaintiff, v. CONRAD LUNA, et al., Defendant. Defendants,1 through undersigned counsel, submit their Reply in Support of their Motion for Summary Judgment. This Reply is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction For the Plaintiff ("Dennison") to survive the Defendants' Motion for Summary Judgment, he must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Stewart, Schriro, Luna, Emore, Pinson, Hewitt, Nelson, Fridenmaker, Cooper, and James.
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1995). Dennison's response fails to demonstrate that there is a triable factual issue. He has not presented any evidence that (1) Defendants Luna and Stewart were deliberately indifferent to alleged abusive behavior by subordinates against Dennison and failed to protect Dennison, or that (2) Defendants James, Emore, Pinson, Hewitt, Nelson, Fridenmaker, and Cooper retaliated against Dennison on May 1, 2003, because of an unrelated lawsuit that he had filed against Jennifer Thelen eight days earlier. A. Dennison's Claims of Disputed Facts Do Not Preclude Entry of Judgment for Defendants In Plaintiff's Statement of Facts in Opposition of Defendants' Motion for Summary Judgment ("PSOF"), he claims that he "contacted Defendant Luna via numerous Inmate Letters and numerous in-person contact" to notify him of the "target abuse" and "that the targeted abuse by officers was escalation." (PSOF ¶¶ 17-18.) In support of this assertion, he relies on the conclusory assertions by (1) himself in an affidavit (PSOF [Exhibit 1 ¶ 13] ("Dennison Affidavit")), (2) an inmate named Brent in an affidavit (PSOF [Exhibit 3 ¶ 13] ("Brent Affidavit")), and (3) an inmate named Cobb in an affidavit [Exhibit 4 ¶ 7] ("Cobb Affidavit")). In Dennison's affidavit, Dennison merely repeats the allegation without producing any supporting documentation or detailed facts. (Dennison Affidavit ¶ 13.) In Brent's affidavit, Brent states that Dennison "kept filing grievances with the Administration and Inmate Letters to Warden Luna for help, but wasn't getting any." (Brent Affidavit ¶ 13.) In Cobb's affidavit, Cobb states that Dennison tried "to get help from the Wardens and Administration" but was ignored and the misconduct increased. (Cobb Affidavit ¶ 7.) All three affidavits lack any details of the specific facts regarding the alleged misconduct by the Defendants and the failure of the Defendants to protect Dennison. A plaintiff may not rely upon the mere allegations or denials of his pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of the contention that the
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dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n. 11. Dennison fails to support his allegations as required by Rule 56. With respect to Stewart, Dennison claims that he failed to protect Dennison (PSOF ¶ 22) but does not submit any evidence to support these conclusions. Dennison only echoes the conclusion in his PSOF with a similarly unsupported conclusion in his affidavit. (Dennison Affidavit ¶ 15.) As for Dennison's claim against Defendant James, he alleges that the physical confrontation with James on May 1, 2003, arose from a scheduled reclassification review hearing. (PSOF ¶¶ 37-43.) Dennison states that he was given permission to go to his cell to get the paperwork for the hearing but was prevented by James from participating in the hearing when he returned. (Id. ¶¶ 44-48.) The Defendants do not dispute that Dennison was told that his classification hearing had been completed and that James told Dennison to return to his cell. (Defendants' Statement of Facts in Support of Defendants' Motion for Summary Judgment ("DSOF") ¶¶ 44-49.) According to Dennison, when he asked James why he was not going to get a reclassification review, James told him that he should file a grievance against him and sue him like Dennison sued Thelen. (PSOF ¶ 49.) Dennison further alleges that James used profane language at him, shoved him into the fence, and maced him. (PSOF ¶¶ 5152.) The Defendants dispute Dennison's description of the sequence of event immediately preceding the physical confrontation. However, the Defendants contend that the factual dispute is not material to the issues in the case. As for Defendants Emore, Pinson, Hewitt, Nelson, Fridenmaker, and Cooper, Dennison claims that they filed fraudulent reports regarding the confrontation with James on May 1, 2003, in retaliation for the lawsuit Dennison had filed against Thelen eight days earlier. (PSOF ¶ 154.) However, Dennison provides no support for the assertion that the reports are fraudulent, or for the assertion that the Defendants were motivated to

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produce fraudulent reports in retaliation for the lawsuit. Dennison merely echoes the unsubstantiated allegation in his affidavit (Dennison affidavit ¶ 56) and alleges that he saw the Defendants and Thelen eating lunch together on numerous occasions (PSOF ¶35). Dennison also claims that he saw Thelen and James walking together and eating lunch together. (PSOF ¶ 34.) Even if it is true that Thelen knew the Defendants and they knew her, the fact that Thelen and the Defendants walk, spoke, and ate together does not possibly support the inference that they filed fraudulent reports in retaliation for a lawsuit filed by Dennison against Thelen. Thus, Dennison's PSOF does not create a dispute over any material facts that need to be tried before a jury. II. Defendants Stewart and Luna Were Not Deliberately Indifferent Dennison's Health or Safety 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 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, 834-36 (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

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v. Gomez, 267 F.3d 895 (9th Cir. 2001) (evaluating each defendant's Section 1983 liability individually). Dennison's allegations against Luna and Stewart lack any specificity to establish from what harm he was seeking protection. Moreover, the timeline of Luna's and Stewart's limited contact with Dennison does not support his contention that they failed to adequately respond to his concerns regarding alleged abuse by ADC subordinates, which resulted in an escalation of abuse that culminated with the incident on May 1, 2003. On March 30, 2002, Dennison sent Luna an Inmate Letter and Luna responded on April 10, 2002. (DSOF ¶¶ 20-21.) On April 4, 2002, Dennison sent a second Inmate Letter to Luna, and Luna responded by meeting with Dennison on April 16, 2002, and responded in writing on April 24, 2002. (Id. ¶¶ 22-24.) On June 19, 2002, Dennison submitted an Inmate Grievance appeal to Stewart and Stewart responded on July 7, 2002. (Id. ¶¶ 25-26.) All of Dennison's contact with Luna and Stewart occurred more than a year (in Luna's case), or nearly a year (in Stewart's case), prior to the incident with James on May 1, 2003. Thus, there is no evidence to support Dennison's claims that Luna and Stewart were responsible for an escalation of abuse that reached the boiling point on May 1, 2003. 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, which was made known to Luna and Stewart. 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.
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III.

Dennison Fails to Provide Any Evidence that Defendants James, Emore, Pinson, Hewitt, Nelson, Fridenmaker, and Cooper Retaliated Against Him for Filing a Lawsuit Against Thelen 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). The parties do not dispute that a verbal exchange between James and Dennison escalated into a physical confrontation on May 1, 2003. The issue is whether James shoved and maced Dennison in retaliation for Dennison filing a lawsuit against Thelen eight days earlier. Similarly, Dennison claims that Emore, Pinson, Hewitt, Nelson, Fridenmaker, and Cooper filed false reports about the incident in retaliation for the lawsuit against Thelen. According to Dennison, the physical confrontation with James was immediately preceded by Dennison asking James why he would not let Dennison have his reclassification hearing. (PSOF ¶ 49.) James suggested to Dennison that he should file a grievance against him and sue him. (Id.) Then, also according to Dennison, James shoved and maced Dennison. (Id. ¶ 51-52.) The Defendants dispute Dennison's version of the incident to the extent that it omits Dennison's failure to respond to James' order to

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return to his cell. But they contend that it is not a dispute over a material fact. They assert that Dennison's version of the sequence of events does not support his contention that James shoved him in retaliation for filing a lawsuit against Thelen. James told Dennison to file a grievance or a lawsuit against him in response to Dennison question about why he did not get his reclassification hearing. The subsequent action by James to shove and mace Dennison clearly arose from the confrontation over Dennison's participation in his reclassification hearing. The undisputed facts show that the physical confrontation arose over a disagreement about whether Dennison could participate in his reclassification hearing--not over the lawsuit that Dennison had filed against Thelen eight days earlier. The fact that James mentioned the Thelen lawsuit during the

dispute--in the heat of the moment--does not support Dennison's contention that James acted in retaliation for the lawsuit filed by Dennison against Thelen. Aside from James mentioning the Thelen lawsuit, the only possible connection between James and Thelen is Dennison's assertion that he has observed them walking, talking, and eating together. As to Fridenmaker, Emore, Nelson, Pinson, Hewitt, and Cooper, Dennison has similarly failed to present any evidence to support his allegation that they purposely filed false reports in retaliation for him exercising his First Amendment right to file a lawsuit. The only evidence to support his claim that a connection exists between Thelen and these defendants is Dennison's assertion that he has observed them walking, talking, and eating together. Furthermore, Dennison presents no evidence that any of these defendants were aware that Dennison had filed a lawsuit against Thelen. Dennison fails to present any evidence that the events of May 1, 2003, were linked in any manner to the lawsuit that he filed against Thelen. Therefore, even construing all of the facts in Dennison's favor, the Court must dismiss James, Fridenmaker, Emore, Nelson, Pinson, Hewitt, and Cooper from this case because there is no evidence that they retaliated against Dennison for exercising his First Amendment Right.

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IV.

Conclusion Based on the foregoing and Defendants' Motion for Summary Judgment, the

Court must dismiss all of the Defendants from this lawsuit. RESPECTFULLY SUBMITTED this 24th day of January, 2006. Terry Goddard Attorney General s/J. Randall Jue J. Randall Jue Assistant Attorney General Attorneys for Defendant Original e-filed this 24th day of January, 2006 to: Clerk of Court United States District Court 401 West Washington Phoenix, AZ 85003 Copy of the foregoing mailed this 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 943589

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