Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

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The moving defendants are the only remaining defendants inasmuch as the Court dismissed Counts II, III, V, VI, and VII of the complaint and defendants Bice, Curran, Davis, CO Unknown #1, and CO Unknown #2 in its screening order entered on December 23, 2003 (doc. #3).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barry Northcross Patterson, Plaintiff, vs. CO Maciel, et al., Defendants.

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No. CV-03-2179-PHX-PGR (VAM) ORDER and OPINION

Pending before the Court is Defendants' Motion to Dismiss and Motion for Summary Judgment (doc. #29), wherein defendants Maciel, Klein, Schmier Schriro, and Walker seek the dismissal of the remaining portions of this action, which plaintiff Patterson has brought in propria persona pursuant to 42 U.S.C. § 1983.1 Having considered the parties' memoranda in light of the evidence of record, the Court finds that the defendants' motion should be granted pursuant to Fed.R.Civ.P. 56 because there are no genuine issues of material fact and the defendants are entitled to entry of judgment in their favor as a matter of law. The defendants alternatively seek the dismissal of this action pursuant to Fed.R.Civ.P. 12(b) as to all defendants except Maciel on the ground that the plaintiff failed to exhaust his available administrative remedies, and as to all

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defendants pursuant to Fed.R.Civ.P. 56. The Court, in the exercise of its discretion, will resolve the motion on its merits as a summary judgment motion. Summary judgment is appropriately granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Court concludes that the defendants, as the moving parties without the ultimate burden of proof at trial, have met their initial burden by both producing evidence negating essential elements of the plaintiff's claims and by pointing to the absence of facts supporting the plaintiff's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2553-54 (1986). That being the case, the plaintiff may only defeat summary judgment by setting forth specific material facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). This requires a showing by the plaintiff of significant probative evidence establishing the existence of every element essential to his case.2 Celotex, 477 U.S. at 322323, 106 S.Ct. at 2552. In determining whether summary judgment is appropriate, the Court must view the plaintiff's evidence in the light most favorable to him and must draw all justifiable inferences in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Defendant Maciel The defendants argue that they are entitled to summary judgment on Count I of the complaint, which alleges a claim solely against CO II Maciel. The plaintiff alleges that Maciel violated the plaintiff's Fourteenth Amendment right to due process by performing an abusive search of the plaintiff's cell in which he, in violation of standard ADOC policy, threw away at least one magazine belonging

The Court notes that it advised the plaintiff of the requirements of Rule 56 in an order entered on July 26, 2005 (doc. #34) pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), cert. denied, 527 U.S. 1035 (1999), and that the defendants filed their own Rand notice, with a copy to the plaintiff, on July 18, 2005 (doc. #33).

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to the plaintiff which may have had postage stamps and irreplaceable family photographs belonging to the plaintiff hidden inside it. Maciel has submitted a declaration in which he states in part that he found a magazine during the search of the plaintiff's cell from which the name and address of the recipient had been removed and disposed of it because he could not determine the legitimate owner of the magazine; he further stated that if any stamps an/or photographs had been placed inside the magazine he was unaware of it and that had he known about the stamps or photographs he would have disposed of only the magazine and not the other items. In his response to the defendants' motion, the plaintiff asserts that "Maciel did not confiscate the property in question as required by ADC policy, but trashed it" pursuant to the use of "illegal authority." (Emphasis in original). The plaintiff further states in his Statement of Facts no. 1 that Maciel "deliberately trashed several items of personal property without using seized property forms as required by policy."3 The Court concludes that summary judgment is appropriate as to Count I because the negligent or the unauthorized and intentional deprivation of inmate property by prison officials does not state a cognizable cause of action under § 1983 if the prisoner has an adequate post-deprivation state remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204 (1984). Arizona has provided such a remedy. See A.R.S. § 12-821.01 (authorizing claims against public entities and public employees). Defendant Walker The defendants also seek the dismissal of Count IV as it relates to CO

The plaintiff's contention that Maciel's "trashing" of the plaintiff's magazine without any documentation violated ADOC policy is supported by the declaration of CO II Carlson who states in part that "[p]ursuant to DO 909, whenever an officer confiscates property from an inmate, he is to prepare a multi-part "Seized Property Receipt" form on which each item seized is listed. ... The Seized Property Receipt form is then signed by both the officer and the inmate, and a copy is provided to the inmate."

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Walker. The plaintiff alleges in his complaint that Walker, as the property officer at SMU I, refused to personally inspect the plaintiff's stored property or to allow the plaintiff to inspect his stored property so that the plaintiff could determine whether some of it had been damaged by ADOC personnel, and that Walker changed the description of the plaintiff's headphones from "broken" to "altered", which under ADOC policy caused the plaintiff to be denied his headphones for one year, in retaliation for the plaintiff's attempts to verify the condition of his property and to obtain compensation for its loss.4 Walker has submitted an affidavit in which he states in part that the plaintiff has never been assigned to his case list and he customarily would not have any interaction with an inmate not assigned to his case list, and that he never acted in the capacity of a property officer at SMU I and has no knowledge regarding the plaintiff's personal property or records pertaining to the plaintiff's property. The Court concludes that summary judgment is appropriate as to Count IV because the plaintiff has not submitted any significant probative evidence establishing that Walker either denied him access to his stored property or changed the designation of the status of his headphones, much less that Walker took any such actions for retaliatory reasons.5 See King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987) ("State officials are not subject to suit under section 1983 unless they play an affirmative part in the alleged deprivation of constitutional rights.")

In his Statement of Facts no. 6, the plaintiff states that Walker and "CO IIs Bedr and Schmeir refused to allow Patterson access to his property at SMU I to verify damage and changed the status of his headphones from 'damaged' to 'altered'." Although it is not clear that the plaintiff is even raising it as an issue, the fact that Walker returned two grievances to the plaintiff unprocessed on procedural grounds does not amount to a violation of the plaintiff's constitutional rights. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898 (1988).
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Defendant Schmier Although the complaint does not name CO III Schmier as a defendant in connection with any specific count, the complaint does generally allege, without any corroborating details, that Schmier refused to give the plaintiff appropriate grievance forms and thus effectively denied the plaintiff access to the ADOC grievance, disciplinary and reclass appeals systems. Schmier has submitted an affidavit that states in part that he would have been responsible for providing grievance forms to the plaintiff only during the period from July 2003 to September 2003 because the plaintiff was then on his case list, that he has no recollection of ever receiving an inmate letter from the plaintiff concerning claims while he was assigned as the plaintiff's counselor, and that while he was at SMU I he kept a log book of his contacts with his assigned inmates and that his log book does not show that the plaintiff ever requested any grievance forms from him. The Court concludes that summary judgment is appropriate as to any claims alleged against Schmier because the plaintiff has not submitted any significant probative evidence establishing that Schmier denied the plaintiff access to grievance forms, and because a prison official's denial of grievance forms in any case does not in and of itself rise to the level of a constitutional violation because a prisoner has no constitutional right to participate in a grievance process. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.), cert. denied, 488 U.S. 898 (1988) ("There is no legitimate claim of entitlement to a grievance procedure."); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004) (Court noted that "inmates lack a separate constitutional entitlement to a specific grievance procedure.") Defendants Schriro and Klein Although the complaint does not name Schriro and Klein as defendants in connection with any specific count, the complaint generally alleges, without any corroborating details, that Schriro, as director of the ADOC, and Klein, as an
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assistant deputy warden involved in grievance procedures and appeals, failed to correct prison staff abuses of ADOC's inmate property rules. The Court concludes that summary judgment is appropriate as to these defendants because supervisory officials cannot be held liable pursuant to § 1983 under a respondeat superior theory of liability. Graves v. City of Coeur D'Alene, 339 F.3d 828, 848 (9th Cir. 2003). Rather, § 1983 liability may be imposed on a supervisor only if he or she was personally involved in the constitutional deprivation or if he or she set in motion a series of acts by others which he or she knew or reasonably should have known would have caused others to inflict the constitutional injury, id., and the plaintiff has not submitted any significant probative evidence showing that Schriro or Klein fit into either category. Furthermore, summary judgment is appropriate as to these two defendants because the Court has ruled that none of their subordinates named as defendants in this action violated the plaintiff's constitutional rights. See Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996), cert. denied, 519 U.S. 1122 (1997) (Court concluded that § 1983 claims against a supervisor based on a failure to train and supervise subordinates failed as a matter of law when the subordinates were found not to have violated the plaintiff's constitutional rights.) Therefore, IT IS ORDERED that the defendants' Motion to Strike Plaintiff's Reply to Defendants' Reply to Plaintiff's Response to Defendants' Motion to Dismiss and Motion for Summary Judgment (doc. #41) is denied.6 IT IS FURTHER ORDERED that Defendants' Motion to Dismiss and Motion for Summary Judgment (doc. #29) is granted to the extent that the

The plaintiff is admonished that he may not file any supplemental memorandum to a motion filed by the defendants without the Court's permission and that the Court will strike any such improper submission in the future.

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remaining portion of this action is dismissed in its entirety pursuant to

Fed.R.Civ.P. 56. The Clerk of the Court shall enter judgment accordingly. Dated this 31st day of March, 2006.

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