Free Reply - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL PAUL E. CARTER (014140) Assistant Attorney General 177 N. Church Avenue, Suite 1105 Tucson, AZ 85701-1114 (520) 388-7128 Fax (520) 628-6050 [email protected] Attorneys for State Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BARRY NORTHCROSS PATTERSON, Plaintiff, v. DORA SCHRIRO, et al. Defendants. REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS No. CV 03-2178-PHX-PGR (MHB)

Defendant Martinez replies to Plaintiff's Response to her Supplemental Motion to Dismiss based on his failure to exhaust administrative remedies prior to filing suit or, alternatively, for failure to state a claim upon which relief can be granted. For the Court's convenience, Martinez will reply to Patterson's arguments in the order he presented them in his Response. Patterson argues that he should be excused from completing the Arizona Department of Corrections' ("ADC") grievance process with respect to his claim against Martinez (the "Inmate Banking Claim"), because he was told that his banking issues are not grievable and he was "refused the forms." Response at 1. But, his First Amended Complaint (at page 6D) claims only that, "I was told deductions were non-grievable by staff ­ COIII Schmier and others." Indeed, since he has never moved to amend to raise this additional excuse for his failure to exhaust, the issue is not properly before the Court. Moreover, the Ninth Circuit

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only remanded this case for the Court to determine whether he was reliably informed by an administrator that no remedies were available. Dkt. 56 at 2. The Court should therefore decline to consider this aspect of Patterson's Response. Even if the Court considers this new argument, Patterson's supporting evidence only shows one prior instance, on May 27, 2003, when COIII Schmier was his counselor and refused to provide him with six grievance forms at once. See Response at Exhibit 1.1 But, the Inmate Banking Claim arose months later, when COIII Schmier was no longer acting as Patterson's counselor. As such, even if the Court considers Patterson's belated argument about his difficulty in getting grievance forms from COIII Schmier on this one occasion, it does not establish that he was denied a form by a different COIII over six months later (on or after December 11, 2003), when he alleges that Martinez applied his funds to reimburse his various acknowledged debts. Amended Complaint at 6-D. Patterson did not allege that he was denied access to an Inmate Letter form when he could have submitted one concerning his Inmate Banking Claim in his Complaint. His argument also exceeds the scope of the Ninth Circuit's remand Order. Indeed, his proffered, supporting evidence does not even concern the subject timeframe or incident. The Court should therefore reject his belated argument. Patterson also continues to express dissatisfaction with various aspects of another case that he filed in the Maricopa County Superior Court. Motion at 3. But, he has produced no records or otherwise shown how it relates to his claims in this action. Finally, Patterson's extensive focus on COIII Schmier's Affidavit is likewise misplaced. Motion at 3-4. The Court will no doubt recall that the original was filed as Exhibit D to Defendants' Separate Statement of Facts filed in Patterson v. Maciel, et al., No.

Martinez specifically objects to the Court considering Exhibit 1 to the Response, which is inadmissible hearsay, does not indicate when it was prepared, or provide any indicia of reliability. 2

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CIV 03-2179-PHX-PGR (VAM). Defendant asked that the Court take judicial notice of this affidavit and consider it substantively for the sole purpose of showing the time period when COIII Schmier could have made the alleged statement to Patterson as his COIII or counselor. Patterson does not dispute the accuracy of this timeframe. However, the balance of the Affidavit is irrelevant to the matters at hand, since it concerns the summer of 2003, which was the time period relevant to Patterson's prior case, when COIII Schmier was his assigned COIII.2 As to Patterson's suggestion that COIII Schmier's Affidavit is in inconsistent or otherwise somehow supports his position, he is wrong. The Affidavit notes that COIII Schmier "also served as grievance coordinator at SMU for a period of time." Affidavit at ¶ 18. So, although he and Patterson could well have encountered each other at SMU I when he was not the latter's assigned counselor, COIII Schmier would not have been the individual responsible for handing out Inmate Letter and grievance forms to Patterson. Compare DO 802.03 § 1.3 (which describes the grievance coordinator's responsibilities, including that he "[m]aintain a supply of all grievance system forms") and DO 802.08 and .09 (which describe how Inmate Letters are submitted to the inmate's assigned COIII, who is then responsible for providing him with a response and, if necessary, receiving his formal grievance).3 Indeed, COIII Schmier confirmed that while he served as grievance

coordinator, he "would not have been responsible for distributing grievance forms to

Martinez asks the Court to also take judicial notice of its Order dismissing Patterson's prior case, in which it concluded that he had "not submitted any significant probative evidence establishing that Schmier denied the plaintiff access to grievance forms . . . ." Exhibit 1 at 5. Patterson should therefore be precluded from trying to re-litigate this issue, having previously had a full and fair opportunity to do so. See Poolwater Products v. Olin Corp., 258 F.3d 1024, 1031 (9th Cir4. 2001) ("Collateral estoppel, or issue preclusion, bars the re-litigator of issues actually litigated in previous litigation between the same parties.") A true and complete copy of D.O. 802 was annexed as Exhibit 1 to Martinez's original Motion to Dismiss. Dkt. 34. 3
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inmates while [he] worked in that capacity." As grievance coordinator, he would only have been responsible for maintaining a supply of forms to provide to the assigned COIII's; they in turn would be responsible for the forms' actual distribution to the inmate. Ultimately, Patterson's response does not address the Ninth Circuit's remand issue or counter Martinez's primary argument that, under Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005), for an inmate to be reliably informed by a prison administrator that no further administrative remedies are available, the administrator must be providing the information in the context of an actual grievance process. Motion at 6-9. Her Motion should therefore be granted on this basis. As Martinez stated, "a prison grievance system would be rendered meaningless if an inmate could allege that some randomly-solicited prison administrator orally provided him with contradictory information about whether a hypothetical complaint could be grieved, without the benefit of considering an actual, written grievance and then be excused from availing himself of that process." Motion at 6. Accepting Patterson's unverifiable and self-serving claim that COIII Schmier volunteered his opinion about a non-existent Inmate Letter or grievance, especially where, as here, the supposed statement directly contradicts the clear language of the grievance policy, would completely undermine the purposes the PLRA's exhaustion requirement and of DO 802. See DO 802, "Purpose" section ("The Department's inmate grievance process provides inmates with timely, administrative remedies to complaints which might otherwise unnecessarily burden the courts"). Absent any colorable argument to the contrary, the Court should not interpret Brown so as to allow inmates like Patterson to rely on their own conclusory statements about unverifiable, hearsay statements in order to defeat a properlysupported Motion to Dismiss for failure to exhaust administrative remedies. Patterson also neglected to respond to Martinez's Rule 12(b)(6) arguments, namely that he cannot state a claim against her because she was completely justified in applying the subject funds to his acknowledged debts, that he was not harmed in a constitutional sense, 4

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and that he had an adequate post-deprivation remedy for his alleged property loss by way of asserting a claim with Arizona State Risk Management. Motion at 9-10. The Court should therefore grant the Motion on these grounds as well. Based on the foregoing, Patterson failed to exhaust his administrative remedies before bringing this action as the PLRA requires. Alternatively, his allegations fail to state a claim upon which relief can be granted. Defendant Martinez therefore respectfully requests that the Court enter its Order, granting her Supplemental Motion to Dismiss, entering judgment in her favor, dismissing Patterson's claims without prejudice, awarding her costs of defense and attorney's fees pursuant to 42 U.S.C. § 1988, and granting such other and further relief as to it seems just and proper. RESPECTFULLY SUBMITTED this 15th day of March, 2007. TERRY GODDARD ATTORNEY GENERAL

s/Paul E. Carter PAUL E. CARTER Assistant Attorney General Attorneys for State Defendants Copy of the foregoing mailed this 15th day of March, 2007, to: Barry N. Patterson, # 117045 ASPC-Eyman-Meadows Unit P.O. Box 3300 Florence, AZ 85232-3300 s/mm
IDS04-0498/G2004-21306/1003869

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