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

1 TERRY GODDARD ATTORNEY GENERAL 2 PAUL E. CARTER (014140) 3 Assistant Attorney General 177 N. Church Avenue, Suite 1105 4 Tucson, AZ 85701-1114 (520) 388-7128 Fax (520) 628-6050 5 [email protected] 6 Attorneys for State Defendants 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV 03-2179-PHX-PGR (VAM) REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

9 BARRY NORTHCROSS PATTERSON, 10 11 v. 12 CO MACIEL, et al., 13 14 15 Defendants. Plaintiff,

Defendants Maciel, Klein, Schriro, Walker, and Schmier reply to Plaintiff's

16 Response to Defendants' Motion to Dismiss and Motion for Summary Judgment. 17 I. 18 19 Defendants' Withdraw Their Motion To Dismiss For Failure to Exhaust as to Defendant Maciel, Urging It Instead, Based on His Having Foregone a PostDeprivation Meaningful Remedy. Patterson attached copies of a grievance and a grievance appeal to his response to

20 the instant motion regarding his claims against Maciel, of which counsel for Defendants 21 was not aware. These documents indicate that they were returned to Patterson

22 "unprocessed" due to his failure to submit them within time limits set by ADC's 23 grievance policy. In Ngo v. Woodford, 403 F.3d 620, 630 (9th Cir. 2005), the Ninth 24 Circuit held that a procedural default, unlike a failure to exhaust, does not bar an inmate's 25 subsequent PLRA lawsuit. The rejection of an untimely grievance constitutes a

26 procedural default. Defendants therefore withdraw their Motion to Dismiss for failure to

Case 2:03-cv-02179-PGR-VAM

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1 exhaust as to Maciel only. 2 Though Patterson has now demonstrated that he did exhaust "available" ADC

3 administrative remedies regarding his claim against Maciel, he has not explained why he 4 did not file a Notice of Claim under A.R.S. § 12-821.01(A) regarding his alleged property 5 loss. Since he chose to forego this state-law, post-deprivation remedy, he should not now 6 be permitted to speculate that it might not have been meaningful. See Parratt v. Taylor, 7 451 U.S. 527 (1981) (barring Due Process claims concerning property unless a 8 meaningful post-deprivation remedy for the loss is available). Patterson's failure to file a 9 Notice of Claim should bar his Due Process claim against Maciel, since he had a facially 10 meaningful post-deprivation remedy available to him that he simply chose to bypass. 11 Because Patterson has not claimed any excuse for failing to exhaust as to the other

12 Defendants, Walker, Schmier, Schriro, and Klein are all entitled to be dismissed from this 13 action. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (where a party

14 concedes non-exhaustion and no exception to the exhaustion applies, the concession is a 15 valid ground for dismissal.) 16 II. 17 Defendants Are Entitled To Judgment as a Matter of Law. Alternatively, Patterson's claims also fail on their merits, because none of the

18 issues raised in his Response raise any genuine issues of material fact. Defendants are 19 therefore entitled to an order of dismissal and judgment in their favor under Rule 56 as a 20 matter of law. Each Defendant's alleged conduct will now be addressed individually. 21 22 A. Maciel.

In his response, Patterson clarifies that his claim against Maciel is that the latter

23 improperly "trashed" a magazine that he claims was his. Further, as set forth in greater 24 detail in his administrative submissions, he claims that the magazine may have had some 25 family pictures and stamps tucked inside them. See Inmate Letter, dated December 11, 26 2002 ("After much looking in the last few days I have not found some personal items: (1) 2
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1 a magazine I subscribe to . . . .") and Inmate Grievance, dated January 6, 2003 ("I believe 2 my missing pictures and stamps may have been in one of the magazines CO Maciel threw 3 away."), both attached to Plaintiff's Response. The dispositive issue is therefore whether 4 Maciel violated Patterson's due process rights by throwing away a magazine, where the 5 name and address had been removed and which may have contained some photographs 6 and postage stamps hidden within its pages. 7 As set forth in the affidavit of CO III Maciel, the name and address of the recipient

8 of the magazine that he threw away had been removed, such that its ownership could not 9 be confirmed. Defendants' Supplemental Statement of Facts ("DSSOF") at ¶ 7. Pursuant 10 to policy, when a piece of inmate property is altered in such a way as to make its 11 ownership and the right to possess it unascertainable, it is considered altered contraband, 12 and cannot be retained by the inmate. Id. at ¶ 3. Of note, Patterson still has not identified 13 the magazine he claims was thrown out or shown his subscription to it. This is hardly 14 what one might expect from a claimant with a serious claim of ownership or a right to 15 possession. 16 As to the photographs and stamps, even Patterson is equivocal as to whether they See 1/6/03 Grievance attached to Patterson's Response.

17 were inside the magazine.

18 Indeed, he only allegedly confirmed that the items were missing a few days after the 19 subject cell search. See 12/11/02, Inmate Letter attached to Patterson's Response. As 20 such, he cannot link Maciel's acts with his claimed loss, especially since the units at 21 ASPC-Florence-South Unit are set up as dormitories where any inmate could have access 22 to another's living area. DSSOF at ¶ 6; see also, King v. Atiyeh, 814 F.2d 565, 568 (9th 23 Cir. 1987) (to be liable under §1983, government officials must play an affirmative role in 24 the deprivation alleged.) Indeed, Maciel has testified that, if he had known that the 25 stamps and photos were in the magazine he disposed of, he would have left them for 26 Patterson. DSSOF at ¶ 9. 3
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Finally, assuming the photographs and stamps were actually hidden inside the

2 magazine as Patterson speculates, Maciel was unaware that they were. Id. at ¶ 8; see also, 3 12/30/02, Inmate Letter Response ("Officer Maciel threw away one magazine which was 4 altered..."). He therefore cannot have been on clear notice that by throwing away a 5 magazine pursuant to policy, he might also be depriving Patterson of additional, unknown 6 property without due process. Since Maciel's conduct did not "violate clearly established 7 constitutional rights of which a reasonable person would have known," he is entitled to 8 qualified immunity from this suit. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 9 10 B. Walker.

Walker testified by affidavit that he has been a CO III (inmate counselor), but not a

11 property officer during his assignment to SMU I. He therefore would not have been 12 responsible for designating Patterson's headphones as either damaged or altered. Indeed, 13 Patterson has not come forward with any evidence that Walker was responsible for any 14 such property re-designation. 15 Patterson has now come forward with two Inmate Grievance responses indicating

16 that a CO III Walker returned a grievance to him unprocessed on two occasions. See DO 17 802.03 § 1.2.1 (whereby programs staff, which includes CO III's, can be appointed "to 18 act as the Institution/Unit Grievance Coordinator.") Assuming, as is likely, that this CO 19 III Walker and Defendant Walker are one and the same, Patterson has not established a 20 genuine issue of fact that might avoid summary judgment. Patterson has shown nothing 21 more than Walker's refusals to process two grievances on procedural grounds. Neither a 22 prison official's involvement with processing a grievance appeal, Olim v. Wakinekona, 23 461 U.S. 238, 249 (1983), nor his failure to process an appeal, Mann v. Adams, 855 F.2d 24 639, 640 (9th Cir. 1988), constitute constitutional violations. This recognizes the fact that 25 a prison official confronted with a grievance did not personally participate in the inmate's 26 underlying complaint. 4
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Since Patterson's only evidence against Walker arises out of the refusal to process

2 grievances, he has failed to raise a genuine issue of material fact and Walker is entitled to 3 judgment as a matter of law. 4 5 C. Schmier.

As with his claim against Walker, Patterson's allegation that Schmier would not

6 give him grievance forms, in and of itself, does not state a claim for relief. Id. At most, 7 accepting the allegation as true, it means that ADC's grievance procedure was no longer 8 available to Patterson, such that had no further administrative remedies to pursue. Indeed, 9 he would have been entitled to file suit based on whatever underlying complaint he had 10 set forth in an Inmate Letter and wanted to grieve. See DO 802.08 annexed to

11 Defendants' motion-in-chief as Exhibit 1 (whereby an Informal Resolution/Inmate Letter 12 must be submitted before a formal grievance process can be initiated); see also Ngo, 403 13 F.3d at 631 (holding that the inmate had exhausted where "he completed all avenues of 14 administrative review available to him.") 15 Patterson has "no legitimate claim of entitlement to a grievance procedure."

16 Mann, 855 F.2d at 640. His claim against Schmier therefore must fail. 17 18 D. Schriro and Klein.

Aside from his conclusory allegations, Patterson offers no probative evidence that

19 either Schriro or Klein was aware that their subordinates were somehow failing to enforce 20 ADC's property policy. They are therefore entitled to have summary judgment granted in 21 their favor. See Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 22 2003). ("In order to show that a genuine issue of material fact exists, the non-moving 23 party must introduce some `significant probative evidence tending to support the 24 complaint.' Conclusory allegations unsupported by factual data cannot defeat summary 25 judgment.") (citations omitted). 26 Patterson claims that Schriro and Klein were aware of multiple instances where 5
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1 ADC's property policy was improperly enforced. But he provides no evidence to support 2 his allegation. He has presented no records at all to support his claim against Schriro. 3 Indeed, she did not even issue the two Director's Appeal responses he did attach to his 4 Response, which were signed by her predecessor, Acting Director Ryan. 5 As to Klein, Patterson has provided a single April 10, 2003, response to a

6 grievance appeal. This appeal relates to Patterson's claim that Sergeant Wall (not Maciel) 7 had improperly confiscated some of his magazines. After noting that Patterson had failed 8 to prove ownership and created his own problem, Klein nonetheless indicated that he 9 would speak with the Sergeant about "proper contraband handling procedures." Klein's 10 response not only fails to support Patterson's claim that he condoned abuse of ADC's 11 property policy, it stands in stark contrast to Patterson's baseless claim that "never once 12 did upper management make any statement that they cared about the loss or that they 13 would work to prevent [it] . . . ." Indeed, the response provides evidence that Klein did 14 take his responsibilities seriously and carried them out conscientiously. 15 III. 16 Conclusion. Based on the foregoing, Defendants Maciel, Klein, Schriro, Walker, and Schmier,

17 respectfully request that the Court enter its order granting their motion for summary 18 judgment, dismissing this action with prejudice, and granting such other and further relief 19 as seems just and proper. 20 21 22 23 24 25 26 / / / 6
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RESPECTFULLY SUBMITTED this _7__ day of October, 2005. TERRY GODDARD ATTORNEY GENERAL _________ s/Paul E. Carter PAUL E. CARTER Assistant Attorney General Attorneys for State Defendants

1 Copy of the foregoing mailed this __7___ day 2 of October, 2005, to: 3 Barry N. Patterson, # 117045 ASPC-Eyman-Meadows Unit 4 P.O. Box 3300 Florence, AZ 85232-3300 5 __s/ajs______________________ 6 IDS04-0059/G2003-04439/927067 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7
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