Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

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Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General Bar No. 011293 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendant Stewart IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Timothy Lee Ward, No. CV03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Karr, et al., Defendants. Defendant Stewart, through undersigned counsel, moves to dismiss Count II of Plaintiff's Second Amended Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. This motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM AND POINTS OF AUTHORITY I. FACTUAL BACKGROUND Plaintiff Timothy Ward is a convicted felon in the custody of the Arizona Department of Corrections. On May 23, 2007, this Court permitted Ward permission to DEFENDANT STEWART'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Case 2:03-cv-02159-ROS-JRI

Document 78

Filed 05/29/2007

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file his Second Amended Complaint in which he seeks "nominal damages" in the amount of $10,000.00 and "punitive damages" of $100,000.00 from Defendant Stewart for alleged "equal protection/due process violations." He alleges that in January 2003, Defendant Stewart placed him in "the hole" for six months for allegedly "threaten[ing] to use `SHANK' on SSU supervisor and count movement officer" without benefit of a disciplinary hearing. Plaintiff alleges that he grieved his placement in March of 2003, and that he appealed to then Acting ADC Director Charles Ryan. (See First Amended Complaint at 5.) Plaintiff's only identifiable claim of injury and damages are that he was "treated like trash, and suffered severe depression and mental anguish due to [his] being locked down for six months." (Id.) For the following reasons, the Court should dismiss Count II and Defendant Stewart from this action. II. LEGAL ARGUMENT
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must demonstrate that the defendant deprived him of a right secured by the Constitution or laws of the United States and

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defendant's act and plaintiff's injury required to sustain § 1983 action). that the alleged deprivation was committed under color of state law. Am. Mfrs. Mutual Ins. Co v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985 (1999). In addition, a § 1983 plaintiff must show injury and an affirmative link between the alleged injury and the conduct of the individual defendant. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (affirmative link between

24 25 26 The Prison Litigation Reform Act ("PLRA") of 1996, effectively codified the Supreme Court's ruling in Farmer v. Brennan, 511 U.S. 825, 834 (1994), that nominal 2
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damages are not appropriate in an Eighth Amendment context and that the standard is actual physical injury. 42 U.S.C. § 1997e (e) ("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."); see Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (dismissal of claim alleging emotional distress from transfer to higher custody prison is proper under 42 U.S.C. § 1997e(e) which requires prior showing of physical injury, when amending the complaint would not cure deficiency). The injury alleged must be more than de minimus. Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ("we hold today that for all claims to which it applies, 42 U.S.C. § 1997e(e) requires a prior showing of physical injury that need not be significant but must be more than de minimis").
In his Second Amended Complaint, Plaintiff again makes no claim of any physical injury. He merely alleges that he had a right to due process before being moved to more secure housing after Defendant Stewart received information that Plaintiff had threatened to shank (stab) two correctional officers. He makes a blanket accusation that his rights were violated. (Dkt. 72, Second Amended Complaint at 4.) First, Plaintiff has failed to make the requisite "prior showing of physical injury" to support his claim for damages. 42 U.S.C. § 1997e(e); see also, Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002) (alleged back and leg pain from sitting and sleeping on the benches and floor, injuries from assault by other inmate and painful canker sore for which plaintiff got medical treatment were insufficient to meet PLRA physical injury standard). Because

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Plaintiff does not allege or provide evidence of physical injury, his Complaint must be dismissed. Jackson v. Carey, 353 F.3d at 758. Plaintiff seeks monetary damages when he has completely failed to allege an essential element of his claim necessarily rendering all

other facts immaterial. 42 U.S.C. § 1997e (e); Farmer, 511 U.S. at 834. The Constitution
of the United States does not mandate a tort damage remedy for every claimed constitutional violation. Harris v. Garner, 190 F.3d 1279, 1289 n.11 (11th Cir. 1999) (Section 1983 damages remedy is not constitutionally required, but statutorily provided. Congress may limit

constitutional tort/monetary damages to those inmates who show more than de minimis injury to prevent frivolous suits; limiting relief to declaratory and injunctive within congressional power.) Therefore, the Defendants request the Court dismiss Plaintiff's monetary damages claim. Second, Plaintiff has also failed to state an appropriate due process claim. He

apparently argues that his movement to a more secure facility following the receipt of information that he had threatened to shank two officers was inappropriate because it did not result in any disciplinary charges. He apparently argues that his placement in a more secure location within the prison without disciplinary charges being brought violates his right to due process. The threshold inquiry in this type of due process analysis is whether the plaintiff has shown entitlement to a protectible liberty interest. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987). Ward does not claim that Defendant Stewart's alleged action of moving him to a more secure location implicated any liberty interests. He has failed to indicate a that protectible liberty interest was implicated, let alone infringed upon, precluding review of whether he was entitled to process prior to his movement. See Meachum v. Fano, 427 U.S.

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215, 224 (1975). The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment does not create a liberty interest to be free from transfer to a maximum security prison absent a state law or practice conditioning such transfers on substantiated acts of

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wrongdoing or the occurrence of other events. Id. at 223-29. Having failed to indicate what liberty interest was at stake, Plaintiff has failed to state a claim of action. See Sandin v. Conner, 515 U.S. 472, 486 (1995) (segregated confinement did not present atypical, significant deprivation in which state might conceivably create a liberty interest.)

CONCLUSION Based on the reasons set forth above, Defendant Stewart respectfully submits that

Plaintiff's claim against him in the Second Amended Complaint should be dismissed in its entirety. RESPECTFULLY SUBMITTED this 29th day of May, 2007. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendant

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Original e-filed this 29th day of May, 2007, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232-8400 s/ Colleen Jordan Secretary to: Susanna C. Pineda IDS04-0306/RSK:G04-20640 #1014349