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's Motion To Dismiss for Failure to State a Claim

Defendant Stewart,1 through undersigned counsel, move to dismiss Count II of Plaintiff's First 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. ///

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This matter returned to this Court following remand by the 9th Circuit Court of Appeals on Counts I and II. Defendant Stewart, named only in Count II of the First Amended Complaint, has been served.
Document 73 Filed 05/14/2007 Page 1 of 5

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

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MEMORANDUM AND POINTS OF AUTHORITY FACTUAL BACKGROUND Plaintiff Timothy Ward is a convicted felon in the custody of the Arizona Department of Corrections. On December 23, 2003, he filed his First Amended Complaint For Money Damages ($100,000.00), alleging that Defendant Stewart had documented that he "threatened to use `SHANK' on SSU supervisor and count movement officer" and subsequently placed him in the "hole for six months" without benefit of a disciplinary hearing, in violation of his right to due process. (See First Amended Complaint at 5.) The only identifiable claims of injury and damages made by Plaintiff is 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 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 defendant's act and plaintiff's injury required to sustain § 1983 action).

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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 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 First Amended Complaint, Plaintiff makes no claim of any physical injury. He merely complains that his rights were violated. (First Amended Complaint at 5.) Plaintiff has

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provide evidence of physical injury, his Complaint must be dismissed. Jackson v. Carey, 353 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 Plaintiff does not allege or

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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.

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

Plaintiff's claim against him in the First Amended Complaint should be dismissed in its entirety. RESPECTFULLY SUBMITTED this 14th 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 14th 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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Case 2:03-cv-02159-ROS-JRI Document 73 Filed 05/14/2007 Page 5 of 5

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 #1013127