Free Motion for Extension of Time - 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 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Michael Camarena, No. 02-CV-710 PHX SRB (ECV) Plaintiff, v. Charles Ryan, et al., Defendants. DEFENDANTS' MOTION TO SUPPLEMENT THEIR RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND CROSSMOTION FOR SUMMARY JUDGMENT

Defendants,1 through undersigned counsel, request permission to supplement their Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment (Dkt. 70). Defense counsel mistakenly failed to include the Defendants' argument regarding Plaintiff's due process claim (Count I). The attached Memorandum of Points and Authorities contains the Defendants' supplemental argument. RESPECTFULLY SUBMITTED this 21st day of December, 2005. TERRY GODDARD Attorney General s/J. Randall Jue__________________ J. Randall Jue Assistant Attorney General Attorneys for Defendants
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Charles Ryan, Dora Schriro, Conrad Luna, and Barbara Shearer.
Document 106 Filed 12/21/2005 Page 1 of 6

Case 2:03-cv-02373-SRB

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defense counsel only recently realized that he had mistakenly failed to include the Defendants' argument regarding Plaintiff Michael Camarena's ("Camarena") due process claim in Count I of his First Amended Complaint (Dkt. 14) in their Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment (Dkt. 70). With the Court's permission, the Defendants hereby submit the argument below regarding Camarena's due process claim in Count I. The Defendants continue to rely on their Statement of Facts in Support of Defendants' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment ("DSOF"), which was previously filed on October 12, 2005. (Dkt. 71.) In Count I of his Complaint, Camarena alleged that the Defendants denied him his right to due process by indefinitely confining him in the SMU II as a validated Security Threat Group ("STG") member without meaningful review. (Dkt. 14.) The undisputed facts regarding the due process received by Camarena are set forth in Section I ("RELEVANT FACTS") of Defendants' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment. (Dkt. 70.) LEGAL ARGUMENT A. Camarena Fails to Assert a Due Process Claim.

The Defendants acknowledge that the Supreme Court recently recognized that Ohio's supermax prison--with restrictions similar to the SMU II--imposes an atypical and significant hardship on its inmates, giving rise to a liberty interest in avoiding placement there. Wilkinson v. Austin, 125 S.Ct. 2384, 2392 (2005). However, the Court in Wilkinson also found that the inmates at the Ohio prison received all the due process they were due

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by (1) receiving notice of the possible placement; (2) having opportunities for rebuttal; and (3) having multiple levels of review. 125 S.Ct. at 2395-96. In Hewitt v. Helms, 459 U.S. 460, 466 (1983), the Supreme Court held that an informal and non-adversarial review of the evidence is sufficient to place an inmate who represents a security threat in administrative segregation pending an investigation of the misconduct charges against him. 459 U.S. at 476. The Court further held that an inmate placed in administrative segregation must merely receive ". . . some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. . . ." Id. Moreover, in Wolff v. McDonnell, the Supreme Court held that where a disciplinary hearing may result in a major disciplinary deprivation, due process requires that an inmate receive written notice of the charges, an opportunity to be heard before a neutral body, twenty-four hours to prepare for the hearing, some kind of opportunity to call witnesses (if possible in the prison context) and a written statement of the evidence relied on, and the reasons for the disciplinary action. 418 U.S. 539, 557-72 (1974). The disciplinary decision must also be supported by "some evidence." Superintendent Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 456 (1985). The "some evidence" standard is satisfied if "there is any evidence in the record that could support the conclusion reached by the disciplinary [body]." Id.
Although Camarena is only challenging the review process, the undisputed facts establish that ADC's STG validation policy affords Camarena all of the procedural due process protections required by law. Camarena, like all inmates, received notice prior to his validation hearing and was permitted to present a defense. He also was given the opportunity to appeal the validation finding that occurred as a result of the validation hearing. Camarena does not allege that he was denied any of these procedural due process protections. He only claims that the review process is not meaningful because his only chance at being moved from

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the SMU II is to renounce his STG membership. He argues that he should be entitlement to placement in a less restrictive facility "when no actual misconduct is alleged to indefinitely confine him to SMU 2." (Plaintiff's Motion for Summary Judgment at 6 [Dkt. 62].) Camarena fails to acknowledge the potential danger represented by his affiliation with a dangerous prison gang. Future predictions of misconduct are valid considerations and have been upheld by the Supreme Court. Shoats v. Horn, 213 F.3d 140, 146 (2000) (citing Hewitt v. Helms, 459 U.S. 460, 474 (1983), overruled on other grounds.) The Supreme Court in Hewitt v. Helms observed, "[i]n the volatile atmosphere of a prison an inmate may easily constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. 459 U.S. at 474. The Court went on to say that the "judgment of prison officials in this context, like that of those making parole decisions, turns largely on purely subjective evaluations and on predictions of future behavior; indeed the administrators must predict not just one inmate's future actions, as in parole, but those of an entire institution." Id. The Supreme Court has repeatedly stated that "...federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment." Sandin v. Conner, 515 U.S. 472, 482-483 (1995); Wolff, 418 U.S. at 561-563; Jones v. N.C. Prisoners' Lab. Union, Inc., 433 U.S. 119, 125 (1977).

It is undisputed that Camarena has been afforded all of the due process required by law. Like the Ohio prisoners in Wilkinson, Camarena had notice of his possible placement in the SMU II, opportunity to rebut the charge that he was a member of an STG, and the opportunity to have that placement decision reviewed. (See DSOF ¶¶ 9-15, 64-66.) The ADC has continued top review Camarena's placement in the SMU II every 180 days since he was validated and housed in the SMU II. Absent security concerns, Camarena has been given the opportunity to be present, make a statement, and present information to the ICC 4
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at all of his ICC classification hearings. Until Camarena renounces his STG membership, he will always be a threat to the safe operation of the prison system. His membership in a STG is a valid and continuing reason for confining him indefinitely in the SMU II. The periodic reviews conducted by the ADC comport with the constitutional requirements of due process. Therefore, all of the Defendants must be dismissed from Count I. B. Defendants are Entitled to Qualified Immunity.

The Defendants also contend they are entitled to qualified immunity for the same reasons stated in Section II (C). III. CONCLUSION For the above-stated reasons, and for the reasons set forth in the Defendants' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment (Dkt. 70), the Court must dismiss the Defendants from every count of the Complaint and deny the Plaintiff's Motion for Partial Summary Judgment. RESPECTFULLY SUBMITTED this 21st day of December, 2005. Terry Goddard Attorney General s/J. Randall Jue J. Randall Jue Assistant Attorney General Attorneys for Defendants

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Original and Copy filed this 21st day of December, 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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Michael Camarena, #62369 ASPC ­ Eyman - SMU II P.O. Box 3400 Florence, AZ 85232 s/ C. Jordan Secretary to: J. Randall Jue IDS04-0175/RSK:G04-20305
#939856