Free Reply - 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. CV 03-2178-PHX-PGR (MHB)

9 BARRY NORTHCROSS PATTERSON, 10 11 v. 12 13 14 15 16 DORA SCHRIRO, et al. Defendants. Plaintiff,

REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant Martinez replies to Plaintiff Patterson's Response to her Motion for

17 Summary Judgment. (Dkt. 79.) 18 I. 19 Martinez Had No Involvement in Making the Subject Deductions. In her Motion for Summary Judgment, Martinez established that she had nothing

20 to do with the deductions from Patterson's Inmate Trust Account that lead to his claimed 21 problems with the mailing of non-legal correspondence and the making of other store 22 purchases about which he is complaining in this action. Since Patterson did not address 23 her evidence or otherwise respond to it in his response, her Motion should be granted 24 because she was not personally involved in the alleged constitutional violation. See King 25 v. Atiyeh, 814 F.2d 565, 567, 568 (9th Cir. 1987) (to be liable under § 1983, government 26 officials must play an affirmative role in the constitutional deprivation alleged).

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1 II. 2 3

Patterson Did Not Grieve Any Denial of His Request to Send Mail, Make Store Purchases or Pursue His Post-Deprivation Remedy. This Court previously denied Martinez's prior Motion to Dismiss, which argued

4 that Patterson did not grieve any purportedly wrongful deduction from his Inmate Trust 5 Account. Dkt. 65. Patterson has never, however, claimed to have been reliably informed 6 that he could not grieve the denial of a request to send non-legal mail or make a store 7 purchase when he did not have sufficient funds available (or one directed to a policy that 8 would allow for such a denial). Since he claims no excuse for not grieving his alleged 9 inability to make such purchases or a policy that would permit it, his concession that he 10 did not pursue available administrative remedies is grounds for dismissal of his 11 Complaint. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (holding that 12 when an inmate plaintiff concedes non-exhaustion and no excuse to the exhaustion 13 requirement exists, the concession is a valid ground for dismissal). 14 Furthermore, Patterson apparently now concedes that he was never actually denied

15 the opportunity to send any mail after $99.68 out of a $100 deposit into his account was 16 applied to other financial obligations of his. Response at 2. Rather, his Complaint now 17 appears to be of a more theoretical nature and seems more concerned with his 18 dissatisfaction with a prison administration or policy that would allow a prisoner to find 19 himself in a situation that he did not have enough funds available to buy a stamp to send 20 out non-legal correspondence. But he does not claim that Martinez ever denied his 21 request to mail any such correspondence. Indeed, his evidence does not show that anyone 22 from ADC denied him such a request. There is therefore no factual basis to conclude that 23 his First Amendment rights have been implicated at all. And even if the Court disagrees, 24 there is certainly a rational basis for a prison administration to require some financial 25 responsibility on the part of the inmates in its custody. After all, non-inmates may find 26 themselves in a position of not having sufficient funds to buy everything they want right 2
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1 when they want to. Surely, inmates should be entitled to no greater rights simply by 2 virtue of their incarceration. 3 Insofar as Patterson may still be claiming that he actually was denied the

4 opportunity to mail non-legal correspondence or make purchases at the inmate store 5 because his funds were wrongfully taken from him, his failure to pursue a grievance 6 complaining about those denials means that he did not qualify to file a Notice of Claim 7 requesting that his property be returned to him. See Department Order 909.12. § 1.1 8 ("DO 909.12") (requiring inmates who claim a property loss to pursue reimbursement 9 through the Arizona Department of Corrections ("ADC") grievance system before they 10 can file a claim with Arizona State Risk Management). Since he did not allow this 11 facially applicable state law remedy for the allegedly wrongful denial of his property, he 12 should not now be permitted to argue that ADC policy would not have provided him with 13 an adequate post-deprivation remedy. 14 III. 15 Legitimate Reasons Supported ADC's Deductions from Patterson's Account. Even if we assume for the sake of argument that Martinez was somehow

16 responsible for making the subject deductions from his account, Patterson never argues 17 that they were not legitimate by claiming, for example, that the underlying debts and 18 financial obligations were not his. At most, he seems to suggest some semantic

19 differences with respect to the identification of certain expenses he incurred. For example 20 he asserts that being forced to pay postage to return contraband property he received in 21 prison should not be regarded as a purchase or expense initiated by Patterson. See, e.g., 22 Response at 6. But nowhere does he claim that the funds were misapplied; rather they 23 were used for the postage needed to mail back out the property that he had been sent 24 which was disallowed from his possession while incarcerated according to prison policy. 25 Patterson also asserts ADC did not keep him abreast of his account balances and

26 that he could not qualify for indigent status because he was sent additional money. 3
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1 Response at 3, 9. But an inmate has no constitutional right to be automatically provided 2 balances on his Inmate Trust Account. Indeed, Patterson's account did not fall below $12 3 because of ADC-mandated deductions as he argues, but it did due to his own spending. 4 Moreover, there are certainly legitimate reasons not to allow ADC inmates to qualify for 5 indigency status when they continue to receive significant financial support from third 6 parties. Without requiring inmates to qualify for the benefits of indigency status based on 7 their actual financial wherewithal, ADC would have no ability to control the amount of 8 debt incurred by its inmates regardless of whether they had an actual need for doing so. 9 Ultimately, Patterson neither establishes that he was denied the opportunity to

10 make certain purchases, including stamps and other store items, nor that prison policy 11 itself unconstitutionally prevented him from doing so. Even if he had established that he 12 should not have been denied any particular purchases, he never shows how anything 13 Martinez did or did not do related to the situation. In sum, Patterson's unfounded 14 ramblings establish only that he became frustrated when the deposits he received from 15 friends or family kept being applied to his acknowledged debts rather than, as he no doubt 16 had hoped, providing him with more spending power than those inmates on indigency 17 status. His allegations do not show that Martinez had anything to do with his financial 18 situation or that she (or any other ADC official for that matter) denied his First 19 Amendment rights. There being no genuine issues for trial, Martinez is entitled to 20 judgment as a matter of law. 21 IV. 22 Conclusion. Defendant Martinez respectfully requests that the Court enter its Order granting

23 her Motion for Summary Judgment and its Judgment dismissing this action with 24 prejudice, further awarding her taxable costs and attorneys' fees pursuant to 42 25 U.S.C. § 1988, and granting such other and further relief as to it seems just and proper. 26 4
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RESPECTFULLY SUBMITTED this 28th day of April, 2008. TERRY GODDARD ATTORNEY GENERAL s/Paul E. Carter PAUL E. CARTER Assistant Attorney General Attorneys for State Defendants

7 Copy of the foregoing mailed this 28th day 8 of April, 2008, to: 9 Barry N. Patterson, # 117045 ASPC-Florence-South Unit 10 P.O. Box 8400 Florence, AZ 85232-8400 11 s/mm 12 IDS04-0498/G2004-21306/ 192111 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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