Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Timothy Lee Ward, ) N0. 03-2159-PHX—ROS
10 Plaintiff ORDER
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Sgt. Karr, et al.,
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Defendant.
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1 Pending before the Court is Defendant Gerry Bennett's Motion for Summary
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1 Judgment. (Doc. # 39) For the following reasons, that motion is granted.
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19 BACKGROUND
20 On November 4, 2003 , inmate Plaintiff Timothy Lee Ward ("Ward") filed suit against
numerous employees of the Arizona Department of Corrections. (Doc. # l) One of those
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22 employees was Gerry Bennett ("Bennett"), a Correctional Officer assigned to the property
23 room at the Arizona State Prison Complex-Eyman, Special Management Unit I. By order
4 ofthe Court filed on December 15, 2003 , Ward was directed to file an Amended Complaint.
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(Doc. # 4) Ward filed his First Amended Complaint on December 23, 2003. (Doc. # 8) The
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26 amended complaint contained four counts. This Court screened the complaint pursuant to
28 U.S.C. § l9l5A(b)(l), (2). (Doc. # l0) As a result of that screening, three of Ward's
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l counts were dismissed. The only count left alleged that Bennett had denied Ward access to
2 the courts. The following facts were recited in support of that allegation.
3 On February 13, 2003 , Ward was moved to the Arizona State Prison Complex-Eyman,
4 Special Management Unit 1. Four days after that move, on February 17, 2003, Ward
5 submitted a written request that his legal property be delivered to his new location. That
6 request was addressed to Bennett. Ward received his legal property on February 24, 2003
7 at 2:00 pm. This delayed delivery allegedly caused Ward to miss a court deadline and caused
8 him "mental anguish." (Doc. # 8)
9 The case proceeded with discovery tmtil sometime in December 2004 when Ward
10 learned that Bemiett was not working during the time period his rights were allegedly
1 1 violated. Ward requested the Court add "John Doe" as a defendant because he did not know
12 who was actually responsible for the late deliveiy of his property. (Doc. # 29) The request
13 was denied because "[t]he proper mamier in which to name defendants is the tiling of a
14 motion to amend andthe lodging of a proposed second amended complaint." (Doc. # 30)
15 Ward did not file a second amended complaint.
16 On March 24, 2005, Bennett filed a Motion for Summary Judgment. (Doc. # 39)
17 Notice was sent on March 28, 2005 advising Ward that Bennett had tiled a Motion for
18 Summary Judgment. S; Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (requiring pro
19 se prisoner receive fair notice of summary judgment requirements). The notice contained a
20 warning in bold lettering that Ward‘s failure to respond to the motion "may . . . be deemed
21 a consent to the granting of that Motion without further notice." (Doc. # 41) Ward was
22 given until April 28, 2005 to file a response. No response was filed.
23 ANALYSIS
24 l. Summary Judgment Standard
25 A court must grant summary judgment if the pleadings and supporting documents,
26 viewed in the light most favorable to the non-moving party, "show that there is no genuine
27 issue as to any material fact and that the moving party is entitled to a judgment as a matter
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1 oflaw." Fed. R. Civ. P. 56(c); sg Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
2 Substantive law determines which facts are material, and "[o]n1y disputes over facts that
3 might affect the outcome ofthe suit under the goveming law will properly preclude the entry
4 of summary judgment." Anderson v. Libeg Lobby, Inc., 477 U.S. 242, 248 (1986). In
5 addition, the dispute must be genuine, that is, "the evidence is such that a reasonable jury
6 could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
7 Furthermore, the party opposing summary judgment "may not rest upon the mere
8 allegations or denials of [the party’s] pleading, but. . . must set forth specific facts showing
9 that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); sg Matsushita Elec. Indus. Co.,
10 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586—87 (1986). There is no issue for trial unless
ll there is sufficient evidence favoring the non—moving party; "[i]f the evidence is merely
12 colorable, or is not significantly probative, summary judgment may be granted." Anderson,
13 477 U.S. at 249-50 (citations omitted). However, "[c]redibility determinations, the weighing
14 of the evidence, and the drawing of legitimate inferences from the facts are jiuy functions,
15 not those of a judge." Q at 255. Therefore, "[t]he evidence of the non—movant is to be
16 believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment
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18 The Rules of Practice of the United States District Court for the District of Arizona
19 ("Local Rules") provide specific guidance regarding what a party must submit when either
20 seeking or opposing summary judgment. Local Rule 56.1 provides that a party opposing
21 summary judgment must "set forth separately from the memorandum of law, and in full, the
22 specific facts on which [the] party relies in support" of its motion. Also, "[a]s to each fact,
23 the statement shall refer to a specific portion of the record where the fact 1nay be found" Q
24 Local Rule 7 .2(i) provides that failure to comply with these requirements "may . . . be
25 deemed a consent to the granting of the motion."
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1 II. Uncontested Facts
2 Ward chose not to file any Response to the Motion for Summary Judgment. Thus, the
3 Court is able to evaluate Ward’s claims using only the initial filings by Ward] and the facts
4 attached to Bennett‘s Motion. The facts submitted by Bennett establish that he was not
5 working from February 14, 2003 through March 3, 2003. (Doc. # 40, Ex. 9) Thus, Bennett
6 could not have received Ward's request for the return of his property on February 17, nor
7 could Bennett have processed that request and delivered Ward's property on February 24,
8 2003. The undisputed facts establish that Bennett did not personally participate in the alleged
9 violation of Ward's right of access to the courts. Therefore, even if the Court assumes that
10 Ward suffered a legal injury as the result ofthe late delivery of his property, Bennett cannot
11 be held responsible for that injury. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
12 ("Liability under section 1983 arises only upon a showing of personal participation by the
13 defendant."); King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987) (affirming dismissal because
14 no evidence presented that defendants "knew of, or took part in, any constitutional
15 deprivations"). Because Bennett had no involvement with any injury suffered by Ward,
16 Bennett is entitled to summary judgment in his favor.
1 7 Accordingly,
18 Bennett's Motion for Summary Judgment (Doc. # 39) is GRANTED.
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20 DATED this zi [;%[g5" .
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23 ’a ynO. `lve 7
24 United States District Judge
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27 [ice McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (providing verified
28 complaint should be considered in opposition to motion for summary judgment).
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