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

1 TERRY GODDARD ATTORNEY GENERAL 2 WANDA E. HOFMANN (014805) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 628-6044 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 Defendants. 16 17 I. 18 Synopsis Plaintiff Arizona prison inmate Charles McManus alleges that several prison v. CARL B. DODGE; T. DOLCE; C. LARSEN; SANDRA WALKER; DORA SCHRIRO; KELLY PIERCE; J. THELEN; J. RABIDEAU; BRITTON, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CHARLES McMANUS, Plaintiff, DEFENDANTS'1 MOTION FOR SUMMARY JUDGMENT No. CV03-2327 PHX-MHM (JI)

19 officials violated his due process rights by failing to take timely action so that he would 20 not be reclassified and transferred to a different prison yard after a disciplinary case was 21 dismissed. Because inmates hold no right to a particular prison location or security level 22 and the sanctions imposed upon Plaintiff did not meet the "atypical and significant" 23 threshold outlined by the Supreme Court, Plaintiff was not entitled to due process in his 24 disciplinary case. In any event, he received due process, and then some, and the

25 proceedings worked to his advantage. Therefore, his case is properly dismissed. 26
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Dodge, Dolce, Schriro, Pierce, Rabideau, Britton, Walker, Thelen and Larsen.
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Defendants Dodge, Dolce, Schriro, Pierce, Rabideau, Britton, Walker, Thelen and

2 Larsen request the Court dismiss this lawsuit against them because there are no material 3 facts in dispute requiring trial of this case. Fed.R.Civ.P. 56(c). Also, dismissal is proper 4 as the Defendants enjoy qualified immunity because they acted reasonably in light of their 5 circumstances and the applicable law. 6 II. 7 Relevant Facts Incorporated here is the Statement of Facts, supported by the record of this case

8 including the Defendants' July 29, 2005 Court-ordered Report exhibits, filed with this 9 Motion (SOF). LRCiv 7.2 and 56.1; Fed. R. Civ. P. 56. 10 III. 11 12 Argument A. Standard for Summary Judgment

Plaintiff McManus must show a "genuine issue as to material fact" to defeat

13 summary judgment in favor to the Defendants. Fed.R.Civ.P. 56(c); see also Anderson v. 14 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Although it must liberally interpret pro 15 se pleadings such as the present Complaint, the Court may not supply essential elements 16 that are missing. See Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 17 (9th Cir. 1982). And the Court may not accept as true the pleader's legal conclusions, nor 18 draw unwarranted inferences to assist the pleader. See Schatz v. Rosenberg, 943 F.2d 485 19 (4th Cir. 1991); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). 20 Summary judgment for the Defendants under Rule 56 is proper here because

21 McManus cannot raise a genuine issue of material fact regarding an essential element of 22 his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986) 23 ("the plain language of Rule 56(c) mandates the entry of summary judgment, after 24 adequate time for discovery and upon motion, against a party who fails to make a showing 25 sufficient to establish the existence of an element essential to that party's case, and on 26 which that party will bear the burden of proof at trial."). 2

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Additionally, given the undisputed facts and the law, the Defendants are entitled to

2 dismissal of this lawsuit on the basis of qualified immunity because they acted reasonably 3 in light of the circumstances and the controlling law. See Harlow v. Fitzgerald, 457 U.S. 4 800, 817-18, 102 S. Ct. 2727, 2738 (1982); see also Act Up!/Portland v. Bagley, 988 F.2d 5 868 (9th Cir. 1993) (district court must determine whether, in light of clearly established 6 principles governing the conduct in question, the officer objectively could have believed 7 that his conduct was lawful). 8 9 B. McManus did not exhaust the administrative remedies available to him.

McManus alleges that he was wrongfully reclassified from a Level 3 (Meadows

10 Unit) to a Level 4 (Rynning Unit) prison facility after he was found guilty of a major 11 disciplinary infraction. Both prisons are controlled movement; the difference is that at 12 Meadows, inmates reside in 30-man dormitories while at Rynning, inmates have more 13 privacy because they live in two-man cells. (SOF Exhibit A.) Both facilities work on a 14 pass system and inmates are permitted to leave their housing areas to go to the chow hall, 15 work, educational classes and the like. (Id.) 16 Reclassification is a three-level procedure, separate from the disciplinary process,

17 that can be triggered after an inmate is found guilty of the Inmate Disciplinary Rules. If 18 referred for reclassification (or during the routine 180-day classification review), inmates 19 appear at a hearing before the ICC (Institutional Classification Committee), which 20 recommends housing placement and security-risk (public and institutional, P/I) score 21 adjustment. The unit deputy warden (or complex warden) reviews the ICC's

22 recommendation and concurs or disagrees. The ADC Central Classification Office in 23 Phoenix ultimately decides housing and P/I score adjustment. Inmates may appeal, within 24 15 work days, the Central Classification Office decision. (Id.) 25 McManus was heard by the Meadows Unit ICC on May 5, 2003 upon referral for

26 the guilty finding in ADC Disciplinary Case # 03-A16-0782. The ICC recommended 3

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1 increasing his Institutional score from 3 to 4 and transfer to Rynning Unit. Deputy 2 Warden Ricky Lewis agreed on May 9, 2003. On June 18, 2003, ADC Central

3 Classification Office approved the score adjustment and transfer. McManus had until July 4 10, 2003--fifteen work days after the June 18 decision--to appeal the decision; he was 5 not transferred to Rynning until July 31, 2003. McManus did not appeal the decision. 6 McManus's allegation that he was wrongfully transferred to the Rynning Unit is

7 barred because he has not exhausted his administrative remedies as required. See 42 8 U.S.C. § 1997e(a). Under the Prison Litigation Reform Act, prison inmates must exhaust 9 the administrative remedies available to them before filing federal-law based cause of 10 action: 11 12 13 No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in a any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

14 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 526 (2002) (exhaustion of 15 administrative remedies is "mandatory" for all prisoner suits seeking redress for prison 16 circumstances or occurrences, regardless of whether they involve general circumstances 17 of incarceration, particular episodes or some other wrong). In construing the exhaustion 18 requirement of the PLRA, the United States Supreme Court noted: "Even when the 19 prisoner seeks relief not available in grievance proceedings, exhaustion is a prerequisite to 20 suit." 534 U.S at 524. 21 22 23 24 . . . administrative exhaustion rules have two principal purposes. The first is to protect an administrative agency's authority by giving the agency the first opportunity to resolve a controversy before a court intervenes in the dispute. The second is to promote judicial efficiency by either resolving the dispute outside of the courts, or by producing a factual record that can aid the court in processing a plaintiff's claim.

25 Ngo v. Woodford, 403 F.3d 620, 624 (9th Cir. 2005) (internal citations omitted). An 26 inmate is deemed to have exhausted his administrative remedies when "no further level of 4

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1 appeal remained in the state prison's internal appeals process." Ngo, 403 F.3d at 631. 2 Inmates at ADC may appeal reclassification decisions to the ADC Central

3 Classification Office by submitting an inmate letter to the Administrator of the Bureau of 4 Offender Services. (SOF Exhibit A.) McManus did not appeal his reclassification to the 5 Rynning Unit as permitted under policy. (SOF Exhibit A.) Because McManus did not 6 appeal the reclassification decision, he is barred from litigating here. 7 U.S.C. § 1997e(a). 8 9 10 C. The complaint is properly dismissed for failure to state a claim. 1. Defendant Dolce must be dismissed. 42

A Section 1983 plaintiff must show injury and an affirmative link between the

11 alleged injury and the conduct of the individual defendant. Rizzo v. Goode, 423 U.S. 362, 12 371-72 (1976) (affirmative link between defendant's act and plaintiff's injury required to 13 sustain § 1983 action). A review of the Complaint (see Counts I ­ IV) reveals no 14 allegations against Defendant Dolce. Accordingly, Defendant Dolce must be dismissed. 15 Rizzo, 423 U.S. at 371-72. 16 17 18 2. Dismissal is proper because McManus did not suffer the "atypical and significant hardship" for which the Constitution requires due process, but he received it anyway.

Prison inmates do not have a right to the protections of due process in prison

19 disciplinary proceedings absent "atypical and significant hardship on the inmate in 20 relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 21 (1995) (holding that 30-day transfer to isolation does not trigger due-process concerns). 22 There is no evidence to support a finding that McManus suffered "atypical and significant 23 hardship . . . in relation to the ordinary incidents of prison life," and therefore his 24 complaint is properly dismissed. At any rate, there is no question that McManus received 25 due process and that it worked to his advantage. 26 In Wolff v. McDonnell, the Supreme Court held that where a disciplinary hearing 5

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1 may result in a deprivation such as the loss of good time credits, due process requires that 2 an inmate receive written notice of the charges, an opportunity to be heard before a neutral 3 body, twenty-four hours to prepare for the hearing, some kind of opportunity to present 4 witnesses (if possible in the prison context) and a written statement of the evidence relied 5 on, and the reasons for the disciplinary action. 418 U.S. 539, 557-72 (1974). The 6 disciplinary decision must also be supported by "some evidence." Superintendent Mass. 7 Corr. Inst., Walpole v. Hill, 472 U.S. 445, 456 (1985). The "some evidence" standard is 8 satisfied if "there is any evidence in the record that could support the conclusion reached 9 by the disciplinary [body]." Id. 10 11 12 13 14 15 16 Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 2300 (1995) (internal citations 17 omitted). "We hold that Conner's discipline [of 30 days] in segregated confinement did 18 not present the type of atypical, significant deprivation in which a State might conceivably 19 create a liberty interest." Id. The Sandin Court also noted that due process was not 20 triggered because inmate Conner did not "present a case where the State's action will 21 inevitably affect the duration of his sentence." 515 U.S. at 487, 115 S. Ct. at 2302. 22 The duration of McManus's sentence was not inevitably affected; indeed, it was The Supreme Court clarified when these procedural safeguards are triggered: Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

23 not affected at all. This is what Plaintiff McManus claims he suffered: 24 In Count I, McManus alleges that Officer Dodge violated his due process rights

25 before he was disciplined because McManus "was punished prior to being adjudicated 26 guilty of any charge." Complaint at 4. 6 McManus does not explain how he was

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1 "punished" by Dodge other than to say that Officer Dodge "failed to accept an existing 2 medical condition of the Plaintiff when he issued a directive that the Plaintiff is to violate 3 the medical order, if the Plaintiff does not, then punish the Plaintiff prior to appearing 4 before disciplinary."2 (Id.) 5 In Count II, McManus contends that Sergeant Larsen, Deputy Warden Walker,

6 Director Schriro, Captain Pierce, Officer Thelen, and Officer Rabideau violated his due 7 process rights in a disciplinary case, with "disciplinary sanctions that should not have 8 existed" which "included being transferred to a higher custody unit, thus subjecting the 9 Plaintiff to a substantial reduction in privileges that the Plaintiff would otherwise have; 10 this was for some 190 days; disciplinary isolation; loss of privileges; extra duty, meaning 11 work without pay; etc. all after 5-4-03." (Complaint at 5-5A.) 12 In Count III, McManus alleges that Captain Pierce, Officer Britton and Deputy

13 Warden Walker were responsible for "disciplinary sanctions that should not have existed" 14 (Complaint at 6) and in Count IV, that because of Deputy Warden Walker, he was "being 15 excessively punished . . . This has been going on some 77 days, thus far" (Complaint at 716 7A). 17 McManus's transfer to the Rynning Unit for 190 days until he underwent the

18 routine 180-day classification review did not arise to "atypical and significant hardship" 19 Officer Dodge's duty was to assign prison jobs. (SOF Exhibit B, Dodge's 20 Affidavit.) McManus does not allege that Officer Dodge disciplined him (see Count I, question "2": "Pre-disciplinary proceedings"). And Officer Dodge, to the best of his 21 recollection, did not discipline McManus. (Dodge Affidavit.) McManus wanted special treatment with regard to a work-assignment decision because of a purported medical 22 condition. (Dodge Affidavit.) But when McManus did not have the requisite medical Special Needs/Duty Order, as was his responsibility to obtain and maintain, and Dodge's 23 call to the medical unit to verify the existence of such an order determined that McManus did not have on file a current Special Needs Order, Officer Dodge did not accommodate 24 McManus's unsupported special need. (Id.) This was consistent with ADC policy and state law requiring inmates to work if able. (Id.) Inmates hold no cognizable right under 25 federal law to avoid presenting paperwork substantiating their alleged special needs to avoid working or a particular job. Thus, even assuming arguendo, that McManus was 26 denied the job of his choice or some special dispensation, he did not have a right to work at a particular job or to avoid work.
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1 contemplated to trigger due-process concerns. Thus he was not entitled to the notice and 2 defense protections outlined in Wolff. Id. As explained above, the primary difference 3 between Meadows and Rynning was privacy: at Meadows, inmates live in 30-man dorms; 4 at Rynning, inmates must share their quarters with only one other inmate. (SOF Exhibit 5 A.)3 6 In essence, McManus claims that his quality of life was adversely affected when he

7 was transferred to Rynning. But McManus has no right to damages for his quality-of-life 8 claims premised on his transfer to a higher custody prison facility because inmates have 9 no liberty interest in their housing location or security environment.4 See Olin v.

10 Wakinekona, 461 U.S. 238, 103 S.Ct. 1741 (1983) (prisoners do not have a constitutional 11 right to incarceration in a particular prison or location); Montayne v. Haymes, 427 U.S. 12 236, 242 (1976) (transfer to a more restrictive prison environment is within the purview of 13 confinement contemplated by a prison sentence and is not in and of itself actionable); 14 Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (prisoners have no right to a 15 particular security classification). 16 The Supreme Court held that there is no liberty interest in prison-classification

17 determinations unless a state statute or regulation creates one. Hewitt v. Helms, 459 U.S. 18 460, 103 S.Ct. 864 (1983). The ADC classification policy clearly states that inmates have 19 no entitlement to housing at a particular prison facility or security designation: "An 20 inmate may be housed, temporarily or permanently, in any facility which has capabilities 21 exceeding the inmate's (P) and/or (I) score." (See SOF, Exhibit A, Attachment 1.) The 22 Arizona Court of Appeals ruled that a prisoner had no liberty interest in whether he was 23 24 The law is well-settled that McManus holds not protectible right to the prison location or security level of his choice. See Olin v. Wakinekona, 461 U.S. 238, 103 S. Ct. 25 1741 (1983) (prisoners do not have a constitutional right to incarceration in a particular prison or location). 4 26 Additionally, McManus has not alleged facts showing that he suffered physical injury as required to obtain emotional-distress damages. 42 U.S.C. § 1997e(e).
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1 transferred to administrative segregation and, thus, could not claim that transfer in 2 violation of due process improperly prevented him from earning good-time credits. 3 Lawrence v. Arizona Dept. of Corrections, 151 Ariz. 599, 600, 729 P.2d 953, 954 (App. 4 1986) (A.R.S. § 41-1604(B)(2)(e)5 gives the director of the Department of Corrections the 5 discretion to transfer inmates to administrative segregation); see also Sandefur v. Lewis, 6 937 F. Supp. 890 (D.C. Ariz. 1996) (neither Arizona law nor ADC policy creates liberty 7 interest in inmates' security classification; inmate had no right to due process when placed 8 in administrative segregation for 141 days); Serrano v. Francis, 345 F.3d 1071, 1078 (9th 9 Cir. 2003) (administrative segregation of a prisoner does not alone implicate a protected 10 liberty interest under the Due Process Clause); Casey v. Lewis, 837 F. Supp. 1009 11 (D.Ariz.1993) (because statute and administrative regulation grant discretion to ADC 12 director to transfer inmates, they do not create liberty interest for inmates to remain in the 13 general population). 14 In any event, McManus received due process both in his prison disciplinary case

15 (see Complaint) and in his separate reclassification (SOF Exhibit A). It was McManus's 16 responsibility to (1) appeal the reclassification decision (he did not) and to (2) report to 17 classification personnel at Rynning Unit that the disciplinary case supporting his 18 reclassification to Rynning had been overturned on appeal (he waited for the routine 18019 day classification review, at least six weeks after Major Hoover informed him that the 20 disciplinary sanctions were reversed. (See SOF Exhibit A and Attachments 4 and 5). Any 21 22 23 24 25 26
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Arizona Revised Statute § 31-1604(B)(2)(e) provides: B. The director may: 2. Take any administrative action to improve the efficiency of the department, including the following: (e) Transfer adult inmates between adult institutions or adult facilities. 9

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1 delay was McManus's fault. He was afforded due process, which took time. And it 2 worked to his benefit as he was ultimately transferred back to Meadows.6 3 4 D. McManus is not entitled to damages.

McManus demands tremendous compensatory and punitive damages to

5 compensate him for his transfer to Rynning. (Complaint at 8.) In Count I, Plaintiff 6 McManus seeks damages of $500,000 and punitive damages of $7,000,000; for Counts II, 7 III and IV, McManus demands $81,000,000 in damages and one-hundred trillion dollars 8 ($100,000,000,000?) in punitive damages, plus his costs. (Complaint at 8.) 9 The basic purpose of a damages award under the Civil Rights Act is to compensate

10 persons for injuries caused by the deprivation of constitutional rights, Carey v. Piphus, 11 435 U.S. 247, 254, 98 S. Ct. 1042, 1047 (1978), but because inmates have no right to a 12 particular housing location or security designation, McManus has no right to damages 13 under this theory. Because inmate McManus has no protectible interest in where he 14 resides, he is not entitled to damages based on a housing transfer. 15 McManus contends that he is entitled to compensatory and punitive damages (See

16 because his due-process rights were violated in a prison disciplinary case.

17 Complaint.) But even assuming arguendo that his due-process rights were at issue here, 18 McManus would not be entitled to compensatory and punitive damages if a due-process 19 violation were found: ". . . the denial of procedural due process should be actionable for 20 nominal damages without proof of actual injury." Carey v. Piphus, 435 U.S. 247, 266, 98 21 S. Ct. 1042, 1054 (1978). McManus has not proved any compensatory injuries that these 22 Defendants caused him in the disciplinary case, and he has not requested nominal 23 damages. (See Complaint.) Although the Court must liberally interpret pro se pleadings 24 25 It should be noted that McManus's time at Rynning was not "atypical" when reviewing his incarceration history: he has resided before and since in higher custody 26 (Level 5) lockdown units such as the Complex Detention Unit and the Special Management Unit. (See SOF Exhibit A.)
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1 such as the present Complaint, it may not supply essential elements that are missing. Ivey 2 v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 4 injury: 5 6 7 8 42 U.S.C. § 1997e(e); see Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (dismissal 9 of claim alleging emotional-distress from transfer to higher custody prison is proper under 10 42 U.S.C. § 1997e(e) which requires prior showing of physical injury, when amending the 11 complaint would not cure deficiency); see also Oliver v. Keller, 289 F.3d 623, 627 (9th 12 Cir.2002) ("we hold today that for all claims to which it applies, 42 U.S.C. § 1997e(e) 13 requires a prior showing of physical injury that need not be significant but must be more 14 than de minimis"). McManus has not met his burden to show damages. 15 For all these reasons, the Court should dismiss Plaintiff McManus's due process No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury. To obtain damages for emotional distress, a prisoner must demonstrate physical

16 claims against Defendants Dodge, Dolce, Schriro, Pierce, Rabideau, Britton, Walker, 17 Thelen and Larsen. 18 19 20 E. The Defendants are properly dismissed because they acted reasonably in light of the law and the circumstances that they faced.

Qualified immunity protects government officials from civil liability when

21 performing discretionary functions so long as "their conduct does not violate clearly 22 established statutory or constitutional rights of which a reasonable person would have 23 known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982). The

24 Defendants reasonably could have believed that enforcing the ADC disciplinary policy 25 and reclassifying McManus to a higher custody unit when he was found guilty did not 26 11

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1 violate his rights. They also acted properly when McManus's disciplinary case was 2 overturned on appeal. Therefore they are immune from this lawsuit. 3 In evaluating a qualified-immunity claim, it is only when the violation of a

4 constitutional right can be made out upon the parties' submissions that the Court should 5 proceed to questioning if the right was clearly established. See Saucier v. Katz, 533 U.S. 6 194, 121 S. Ct. 2151 (2001) (when ruling upon qualified-immunity issue, court must 7 consider as a threshold question, whether, taken in light most favorable to party asserting 8 injury, the facts alleged show that officer's conduct violated a constitutional right); 9 Resnick v. Adams, 348 F.3d 763, 768 (9th Cir. 2003) (to same effect). Because McManus 10 has not shown that the Defendants violated his rights, they enjoy qualified immunity from 11 his due process claims. 12 Qualified immunity is "`entitlement not to stand trial or face the other burdens of

13 litigation.'" Saucier, 533 U.S. at 200 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 14 S. Ct. 2806 (1985)). Saucier instructs that courts considering a qualified-immunity

15 defense must first address whether, taken in a light most favorable to the plaintiff, the 16 facts alleged show that the officers' conduct violated a constitutional right. Id. at 201. If 17 a violation could be made out, the next step is to ask whether the right was clearly 18 established. Id. This inquiry, it is vital to note, must be undertaken in light of the

19 specific context of the case, not as a broad, general proposition; and it, too, serves to 20 advance understanding of the law and to allow officers to avoid the burden of trial if 21 qualified immunity is applicable. Id. If the law did not put the officers on notice that their 22 conduct was clearly unlawful, they are entitled to summary judgment. Id. at 202.

23 "[Q]ualified immunity protects `all but the plainly incompetent or those who knowingly 24 violate the law.'" Id. at 202 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). 25 In addition to the reasons for dismissal discussed above, the Court should grant

26 Defendants Dodge, Dolce, Schriro, Pierce, Rabideau, Britton, Walker, Thelen and Larsen 12

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1 summary judgment because they did not violate any clearly established right held by 2 McManus and they could have reasonably believed their acts lawful under the 3 circumstances. See Creighton, 483 U.S. at 641; Wilson, 501 U.S. at 298; Farmer, 511 4 U.S. at 834. 5 IV. 6 Prayer for Relief The purpose of 42 U.S.C. § 1983, which holds state employees responsible for "the

7 deprivation of any rights, privileges, or immunities secured by the Constitution and 8 laws...," is to deter state actors from using their state authority to deprive individuals of 9 their federally protected rights, and to provide relief, should the deterrence fail. Wyatt v. 10 Cole, 504 U.S. 158, 161, 112 S. Ct. 1827, 1830 (1992) (citing Carey, 435 U.S. at 254-57, 11 98 S. Ct. at 1047-49). That purpose is not served here by holding these Defendants liable 12 as McManus a constitutional abridgement resulted from his transfer to higher custody. 13 The Court should dismiss this lawsuit. 14 WHEREFORE, Defendants Dodge, Dolce, Schriro, Pierce, Rabideau, Britton,

15 Walker, Thelen and Larsen request the Court dismiss the Complaint in its entirety with 16 prejudice, and award them costs and fees, including attorney's fees. 17 18 19 20 21 22
7

RESPECTFULLY SUBMITTED this 12

day7 of October, 2005.

TERRY GODDARD ATTORNEY GENERAL s/Wanda E. Hofmann WANDA E. HOFMANN Assistant Attorney General Attorneys for Defendants

This Motion and SOF with accompanying affidavits and attached evidentiary 23 materials are, respectfully, filed one day late. See March 24, 2005 Order. Due to a clerical shortage yesterday afternoon at counsel's office and counsel's admitted e-filing/e24 prep inadequacy, it is necessary to file today. Counsel does not include a motion to enlarge because (1) Defendants currently have one pending and (2) it would require 25 including a proposed order in Word Perfect, which this (Tucson) office does not have the capability to generate any longer. (When counsel attempted last week to attach a 26 proposed order to Defendants' Motion to Enlarge, she telephonically kibitzed with IT wonks in the Phoenix Attorney General's Office for about an hour, all to no avail.)
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1 COPY of the foregoing mailed this 12 day of October, 2005 to: 2 3 Charles McManus, #79938 ASPC-Eyman, Meadows Unit 4 P.O. Box 3300 Florence, AZ 85232 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14 CBailey Secretary, Attorney General's Office

IDS05-0022 / 928078

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