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

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Terry Goddard Attorney General Michele L. Forney, Bar No. 019775 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants

7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-02159-ROS-JRI Document 136 Filed 04/15/2008 Page 1 of 18

Timothy Lee Ward, No. CV 03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Carr, et al., Defendants. Pursuant to Fed. R. Civ. P. 56(c) and Local Rule 56.1, Defendants Terry Carr and Robert Stewart move for summary judgment. This motion is supported by the following Memorandum of Points and Authorities and separate Statement of Facts ("DSOF"). MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS A. Introduction DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Ward is a convicted felon who was committed to the Arizona Department of Corrections ("ADC") in 1999. (DSOF at ¶ 1.) He is currently housed at the Arizona State Prison Complex ("ASPC")-Florence, South Unit. (DSOF at ¶ 2.) The allegations in his complaint arose while he was housed in ASPC-Eyman, Rynning Unit in 2002. (DSOF at ¶ 3.)

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In his two-count Second Amended Complaint, Ward alleged that Defendants Robert Stewart1 and Terry Carr2 violated his equal protection and due process rights. (DSOF at ¶ 4.) Specifically, in Count I, he alleged that Carr violated his rights by (1) firing him from his job; (2) moving him to a different yard; and (3) placing him in detention because he is a homosexual. (DSOF at ¶ 7.) In Count II, Ward alleged that Stewart violated his rights by putting him "in the hole" for six months because he is a homosexual. (DSOF at ¶ 8.) It is not clear from Ward's Second Amended Complaint whether he intended to sue Defendants Carr and Stewart in both their individual and official capacities. (DSOF at ¶ 9.) He claims that he suffered extreme depression and mental anguish as a result of the Defendants' actions. (DSOF at ¶ 10.) He seeks nominal and punitive damages and reimbursement of his court costs. (DSOF at ¶ 11.) B. The Photographs Incident

In October 2002, Ward was housed in Rynning Unit, Building 4, Baker Pod. (DSOF at ¶ 12.) In 2002, Rynning Unit was a level 4 (high-medium) custody yard that housed sex offenders only. (DSOF at ¶ 13.) On or about October 25, 2002, Carr, whose job duties included investigation of potential security and safety threats, learned that Ward had nude photos of his cellmate in his possession. (DSOF at ¶ 14.) One photograph was found during a routine mail scan. (DSOF at ¶ 15.) Ward had another similar photograph in his cell. (DSOF at ¶ 16.) The photographs were confiscated and Carr conducted an interview of Ward regarding the photographs. (DSOF at ¶ 17.) During the investigation of the photograph incident, Inmate Ward and his cellmate were separated. (DSOF at ¶ 18.)

Robert Stewart is currently the Warden of ASPC-Eyman. At the times relevant to this lawsuit, he was the Deputy Warden at ASPC-Eyman, Rynning Unit. (DSOF at ¶ 5.)
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Terry Carr is no longer employed by ADC. At the times relevant to this lawsuit, she was the Special Security ("SSU") Sergeant at ASPC-Eyman, Rynning Unit. (DSOF at ¶ 6.)

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During her interview of Ward, Carr explained to him that the photographs were not allowed because they were contraband. (DSOF at ¶ 19.) Nude photographs of any kind were contraband unless contained within an approved magazine and had not been altered in any way. (DSOF at ¶ 20.) When Carr informed Inmate Ward that he was not allowed to keep the photographs, he became very upset and argumentative. (DSOF at ¶ 27.) Carr also interviewed Ward's cellmate and educated him about his risks in allowing other inmates to possess nude photographs of him. (DSOF at ¶ 28.) Ward's cellmate had just turned eighteen and was new to the system. (DSOF at ¶ 23.) He did not realize his vulnerability by allowing his cellmate to possess the nude photographs. (DSOF at ¶ 24.) After learning of his risks, he asked to be separated from Ward. (DSOF at ¶ 29.) Carr recommended that the inmates be separated. (DSOF at ¶ 31.) Carr informed the Count Movement Officer, who started to look for an available bed. (DSOF at ¶ 32.) She also informed the SSU Officer, Lieutenant, Chief of Security, and DW Stewart of her recommendation. (DSOF at ¶ 33.) If any one of them had had a problem with the recommendation, the movement would not have occurred. (DSOF at ¶ 34.) Carr had no final control over the decision whether Ward or his cellmate would be moved. (DSOF at ¶ 35.) On October 25, 2002, Ward was transferred to Building 6 in ASPC-Eyman Rynning Unit. (DSOF at ¶ 36.) His classification did not change and he remained eligible for work. (DSOF at ¶ 37.) C. Placement in Administrative Detention

Wardens and deputy wardens may place inmates in detention status as necessary to ensure the safe, secure and orderly operation of a prison or facility, to ensure the integrity and pending completion of an ongoing investigation, to fulfill disciplinary sanctions, and for a variety of other reasons not relevant in this case. (DSOF at ¶ 41.) In the absence of the warden or deputy warden, security shift commanders shall make 3
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detention placements in accordance with the guidelines set forth in Department Order ("D.O.") 8043 when an emergency situation warrants such placement. (Id.) On November 6, 2002, Carr was approached by two inmates who indicated that they wanted to speak to her and Corrections Officer Crystal Stitt. (DSOF at ¶ 43.) Carr conducted interviews of the two inmates, who had provided good information in the past as confidential informants. (DSOF at ¶ 44.) These two inmates informed Carr that Ward was recently counseled, was upset about the situation and was planning to "stick" Officer Stitt and Sgt. Carr. (DSOF at ¶ 45.) Carr verbally notified Deputy Warden Stewart before leaving for the day. (DSOF at ¶ 46.) Because the Unit was short staffed, a shift commander was assigned to move Inmate Ward to the Detention Unit. (DSOF at ¶ 47.) Carr prepared a report summarizing her interviews with the informants on the next day. (DSOF at ¶ 54.) Under standard procedure, Carr had no further contact with Inmate Ward after informing the chain of command of the alleged threats he had made against her. (DSOF at ¶ 48.) Whenever there is a threat of an assault on an ADC staff person by an inmate, the parties are immediately separated and have no further contact. (DSOF at ¶ 49.) On Thursday, November 7, 2002, Ward was transferred to Meadows Complex Detention Unit to ensure the safety of Sergeant Carr, Officer Stitt and other ADC staff. (DSOF at ¶ 51.) Ward was placed in detention for a 2A investigation for threats against staff. (DSOF at ¶ 52.) Under routine policy and procedure, the warden, the deputy warden or the assistant deputy warden would have been notified verbally of the inmate's placement in detention before it occurred. (DSOF at ¶ 53.) On Tuesday, November 12, 2002, Stewart reviewed the Lock Up Packet documentation regarding Ward's placement in Investigative Detention.4 (DSOF at ¶ 55.) Stewart reviewed Carr's report summarizing her interview of the two confidential
3

D.O. 804 governs inmate behavior control, including the placement of inmates into detention units. (DSOF at ¶ 40.) 4 Monday, November 11, 2002 was a national holiday. (DSOF at ¶ 55.)

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informant inmates. (DSOF at ¶ 57.) After reviewing the documentation, Stewart signed the Assignment to Investigative Detention-2A Form. (DSOF at ¶ 58.) On November 7, 2002, Ward received a major disciplinary charge for disobeying an order in relation to failing to produce a urine sample for a routine drug test required for admission into CDU. (DSOF at ¶ 59.) Ward was served notice of the charge and a hearing was scheduled for November 19, 2002. (DSOF at ¶ 60.) Due to excessive caseload, the Disciplinary Coordinator postponed the hearing to November 22, 2002. (DSOF at ¶ 61.) Ward requested no witnesses and plead guilty. (DSOF at ¶ 62.) Ward was given notice of disciplinary sanctions of 10 days detention starting from November 23, 2002 and 30 days loss of privileges from December 6, 2002 to January 5, 2003. (DSOF at ¶ 63.) The Disciplinary Sanction Notice also indicated that Ward should be reclassified. (DSOF at ¶ 64.) On December 4, 2002, he was again assigned to investigative detention for continuation of the investigation of the alleged threats of assault on Sgt. Carr and Officer Stitt. (DSOF at ¶ 65.) On December 6, 2002, Ward wrote an Inmate Letter to Warden Goldsmith indicating that he did not know why he was placed in Investigative Detention. (DSOF at ¶ 66.) On December 26, 2002, Warden Goldsmith submitted an Inmate Letter Response, stating the following: I am in receipt of your inmate letter dated 12-06-02. You were placed in Meadows CDU on 11-07-02 for threatening staff. After the preliminary investigation was concluded, the information was forwarded to CIU. CIU staff conducted a follow-up investigation. You should have been interviewed by CIU staff at the time of the generation of this letter. Following their investigation, you will be notified of the outcome. (DSOF at ¶ 72.)

24 On December 19, 2002, Criminal Investigations Unit (CIU) conducted its 25 investigation of Inmate Ward's alleged threats against Sgt. Carr and Officer Stitt. 26 (DSOF at ¶ 67.) CIU Investigator Douglas Newman interviewed Sgt. Carr and Inmate 27 28
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Ward. (DSOF at ¶¶ 68-69.) After Inmate Ward assured Investigator Newman that he did not intend to hurt anyone, Investigator Newman concluded his investigation and declined to pursue criminal charges against Inmate Ward. (DSOF at ¶ 69.) D. Reclassification

On January 4, 2003, Ward submitted an Inmate Letter to Stewart,5 indicating that he understood Stewart was planning on requesting administrative reclassification and asking Stewart to reconsider taking that action. (DSOF at ¶ 73.) On January 6, 2003, Stewart filled out an Institution Classification Referral Notice, Form 801-2P, in which he requested administrative review of Ward's classification because of his behavior. (DSOF at ¶ 76.) Stewart believed that the threats Ward made against Carr and Officer Stitt were credible and he felt it was inappropriate for Ward to be returned to the Rynning Unit at that time. (DSOF at ¶ 77.) Ward was provided a copy of this notice and informed in writing that he was permitted to appear at the hearing and call witnesses. (DSOF at ¶ 78.) Ward waived the five day waiting period to prepare for the hearing. (DSOF at ¶ 79.) Thus, the administrative reclassification hearing was held on the same day. (DSOF at ¶ 80.) Ward was present for the hearing, but made no comments. (DSOF at ¶ 81.) The Institutional Classification Committee ("ICC") reviewed and approved the recommendation for facility override and placement in SMU I based on his behavior in threatening staff. (DSOF at ¶ 83.) On January 13, 2003, the Institutional Administrator approved ICC's recommendation, noting that Ward had threatened to use a "shank" on SSU Supervisior and Count/Movement Officer. (DSOF at ¶ 84.) Central Classification approved Ward's placement in SMU I on January 24, 2003. (DSOF at ¶ 85.) On February 12, 2003, Ward was transferred to SMU I. (DSOF at ¶ 86.) Ward appealed his reclassification. (DSOF at ¶¶ 87, 95.) On April 8, 2003, his appeal was upheld because a classification referral notice dated September 4, 2002 was
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Stewart did not receive this Inmate Letter until January 14, 2003. (DSOF at ¶ 74.)

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incorrect and was being rectified by Ward's being transferred back to Rynning Unit when a bed became available. (DSOF at ¶ 97.) Ward was transferred to Rynning Unit, Building 7 on May 19, 2003. (DSOF at ¶ 99.) II. LEGAL ARGUMENT A. Summary Judgment Standard

Rule 56(c) of Fed. R. Civ. P. "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e), see also Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 585-88 (1986), Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Summary judgment is proper, therefore, if the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of his case on which he will bear the burden at trial. See Celotex, 477 U.S. at 323. B. Due Process

The Fifth and Fourteenth Amendments prohibit the government from depriving an inmate of life, liberty, or property without due process of law. U.S. Const. amends. V, XIV. In analyzing the procedural safeguards owed to an inmate under the Due Process 7
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Clause, the Court must look at two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections. Biggs v. Terhune, 334 f.3d 910, 913 (9th Cir. 2003.) In this case, Ward alleged that his due process rights were violated when he was moved to a different housing unit, when he was "fired" from his job, and when he was placed in administrative segregation. 1. Housing

The United States Supreme Court and the Ninth Circuit have not recognized a liberty or property interest in a particular housing assignment. Prisoners do not have a constitutional right to remain at a particular correctional facility. See Hewitt v. Helms, 459 U.S. 460, 468 (1983). Nor do they have a constitutional right to a particular housing assignment or to enjoy a particular security classification. Meachum v. Fano, 427 U.S. 215, 224 (1976); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987)(a prisoner has no constitutional right to a particular classification status under the U.S. Constitution). "[N]o due process protections [are] required upon the discretionary transfer of state prisoners to a substantially less agreeable prison, even where that transfer visit[s] a 'grievous loss' upon the inmate." Moody v. Daggett, 429 U.S. 78, 88, n. 9 (1976). Inmates do not have a right to choose their own cellmates. Cole v. Benson, 760 F.2d 226 (8th Cir. 1985); Hayes v. Wimberly, 625 F.Supp. 967, 970 (E.D. Ark. 1986), affirmed, 815 F.2d 710 (8th Cir. 1987). Since there is no liberty or property interest in a particular housing assignment or cellmate, Ward's claim for violation of his due process rights fails as a matter of law. 2. Work Assignment

Prisoners have neither a liberty nor a property interest in their work assignments. Wallace v. Robinson, 940 F.2d 243, 246-49 (7th Cir. 1991) (en banc), cert. denied, 503 U.S. 961 (1992). Thus, inmates may be terminated from their jobs or reassigned for any reason - or no reason at all - without violating the Due Process Clause of the Fourteenth 8
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Amendment. Wilson v. Schomig, 863 F.Supp. 789, 793 (N.D. Ill. 1994). Since there is no liberty or property interest in a particular job, Ward's claim for violation of his due process rights fails as a matter of law. 3. Administrative Segregation a. Sandin "Atypical and Significant Hardship" Analysis

The Due Process clause provides prisoners two separate sources of protection. First a prisoner may challenge an action which deprives or restrains a state-created liberty interest in some "unexpected manner." Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) quoting Sandin v. Connor, 515 U.S. 472, 483-84 (1995). Second, a prisoner may challenge a state action which does not restrain a protected liberty interest, but which nonetheless imposes some "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Ramirez, 334 F.3d at 860, quoting Sandin, 515 U.S. at 484. If the hardship is sufficiently significant, then the court must determine whether the procedures used to deprive that liberty satisfied Due Process. Sandin, 515 U.S. at 484. Typically, administrative segregation in and of itself does not implicate a protected liberty interest. Serrano v. Francis, 345 F.3d 1071 (9th Cir. 2003); Sandin, 515 U.S. at 486. Disciplinary segregation is frequently compared to administrative segregation to determine if it presents an atypical and significant hardship, while administrative segregation is viewed as a generally acceptable restraint. In Sandin, the Supreme Court provided a framework for determining whether conditions constituted an atypical and significant hardship: (1) whether the challenged condition "mirrored those conditions imposed upon inmates in administrative segregation and protective custody" and thus comported with the prison's discretionary authority; (2) the duration of the condition, and the degree of restraint imposed; and (3) whether the state's action will invariably affect the duration of the prisoner's sentence. 9
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Sandin, 515 U.S. at 486-87. Under D.O. 804.01, ADC wardens and deputy wardens6 have discretion to place inmates in detention as necessary to ensure the safe, secure and orderly operation of a prison or facility and to ensure the integrity of an ongoing investigation. (DSOF at ¶ 41.) This is consistent with the Supreme Court's recognition that "[c]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, 417 U.S. 817, 823 (1974). The conditions of confinement imposed on Ward during his investigative detention are not substantially different or more restrictive than his conditions while in general population in the Rynning Unit. D.O. 804.01 § 1.2 provides that inmates in detention shall have the following: Meals at the standard meal hours and in the same quality and quantity as that served to the general population, including special medical or religious diets. · Visits by health care staff three times a week. · Access to courts, legal materials and legal reference materials. · Opportunity to shower and shave a minimum of three days a week. · Personal property commensurate with the inmate's detention status and classification. · Recreation for a minimum of one hour, three days a week. · Visitation privileges · Telephone privileges (DSOF at ¶ 106.) In Rynning Unit, inmates are housed in two-man cells. (DSOF at ¶ 100.) Inmates have an opportunity to have recreation or go to the complex library three ·

21 times a week. (DSOF at ¶ 101.) Inmates may shower on the same days as 22 recreation/library access. (DSOF at ¶ 102.) Inmates have three meals a day on 23 weekdays and two meals a day on weekends. (DSOF at ¶ 103.) Visitation, telephone 24 access and permitted appliances and personal property depend on the inmates' individual 25 classification. (DSOF at ¶ 104.) 26 27 28
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In emergency situations, the security shift commander may also place an inmate in detention when appropriate under D.O. 804. (DSOF at ¶ 41.)

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When an inmate is in administrative detention pending an investigation, he is entitled to the same privileges he would be entitled to in his regular housing location. (DSOF at ¶ 107.) If, on the other hand, an inmate is in detention as part of a punishment for a disciplinary charge, the inmate may also have a temporary loss of privileges. (DSOF at ¶ 108.) Ward has not disclosed any evidence to show that his conditions in investigative detention presented an atypical and significant hardship. The time Ward spent in investigative detention was not excessive. He was placed in investigative detention on November 7, 2002. (DSOF at ¶ 51.) He was then placed in disciplinary detention from November 23, 2002 until December 3, 2002. (DSOF at ¶ 63.) On December 4, 2002, his placement in investigative detention was renewed. (DSOF at ¶ 65.) On December 19, 2002, CIU completed its investigation of Ward's alleged threats against Officer Stitt's and Sgt. Carr's safety. (DSOF at ¶¶ 67-69.) Less than three weeks later, Ward was administratively reclassified for placement into SMU I, at a hearing at which Ward opted not to comment or present any witnesses on his behalf. (DSOF at ¶¶ 76-81, 83.) From November 7, 2002 to January 6, 2003, he spent two months in investigative detention, of which 10 days was disciplinary detention. After January 6, 2003, Ward was in detention awaiting final approval and transfer to SMU I. (DSOF at ¶¶ 84-86, 90-93.) It was appropriate for Ward to remain in detention while the reclassification process continued. At all times, Ward was in detention for a valid and documented reason. Ward is not eligible for parole. (DSOF at ¶ 113.) His time in investigative detention did not have any effect on his ability to earn release credits, and therefore has no effect on the duration of his sentence. Under the Sandin analysis, Ward cannot demonstrate that his placement in investigative detention required due process. Even if he can meet that first burden, Ward cannot establish that Defendants Carr or Stewart failed to provide sufficient protection for Ward's rights. 11
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b.

Sufficient Process

If the court determines that Ward was entitled to due process with respect to his placement in administrative detention, the due process requirements were met. In Hewitt v. Helms, 459 U.S. 460, 476 (1983), the Supreme Court held that an informal and nonadversarial review of the evidence is sufficient to place an inmate who represents a security threat in administrative segregation pending an investigation of the misconduct charges against him. Ward received a written notice of his placement in investigative detention. He was given an opportunity to meet with a CIU investigator to discuss the allegations against him. He was not disciplined for the alleged threats. Contrary to Ward's assertion, there was no finding of guilt or innocence. (DSOF at ¶¶ 67-69.) Instead, CIU advised that a CIU report would be generated for documentation purposes, but no criminal charges would be pursued. While the information from the confidential informants may not have been enough for criminal charges or a disciplinary violation to be entered, Stewart felt that the threat to ADC personnel's safety was serious and credible, such that reclassification was advised. (DSOF at ¶¶ 76-77.) Ward was given notice, an opportunity for 5 days to prepare for the reclassification hearing, and an opportunity to be heard and present witnesses. (DSOF at ¶ 78.) He opted to waive the 5 days, did not comment and did not present witnesses. (DSOF at ¶¶ 79-81) Ward was provided with ample notice and several opportunities to be heard. As such, the procedure was sufficient. c. No Affirmative Involvement

With respect to Carr, Ward cannot demonstrate that she had an affirmative role in depriving him of any due process rights in connection with his placement into investigative detention. State officials are not subject to suit under 42 U.S.C. § 1983 unless they are alleged to have played an affirmative part in depriving a plaintiff of his

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constitutional rights. Rizzo v. Goode, 423 U.S. 362, 377 (1976); King v. Atiyeh, 418 F.2d 565, 568 (9 Cir. 1987). Here, Carr's involvement ended as soon as she submitted her report on what the two confidential informant inmates told her. She did not have authority to place Ward in investigative detention. (DSOF at ¶ 50.) She had no contact with Ward after she informed the chain of command of his alleged threats against her. (DSOF at ¶ 48.) She also had no role in his reclassification. (DSOF at ¶ 82.) As such, Carr can not be held liable for violating any due process rights, to the extent they may exist, in connection with Ward's placement in investigative detention. B. Equal Protection
th

To establish a § 1983 equal protection violation, Ward must show that Defendants Carr and Stewart "acted with an intent or purpose to discriminate against [him] based upon membership in a protected class. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003). Homosexuals are not a protected class in the Ninth Circuit. High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990). To survive summary judgment on the issue of motive, Ward must "put forward specific, nonconclusory factual allegations that establish improper motive." Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001.) In this case, Ward has no evidence beyond his own conclusory belief that Carr and Stewart discriminated against him because of his sexual preference. Both Defendants deny that Ward's sexual preference had anything to do with his transfer to a different housing location or placement in administrative detention. Carr does not recall when she learned that Ward is a homosexual, but denies that she discriminated against him. (DSOF at ¶¶ 111-112.) Stewart was not aware of Ward's homosexuality until he was served with this lawsuit. (DSOF at ¶ 109.) Instead, both Defendants have set forth legitimate nondiscriminatory reasons for the actions they took. 13
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Ward's sole "evidence" that he was discriminated against is his allegation that another inmate (the "Other Inmate") who allegedly threatened ADC personnel was treated differently because he is straight. (DSOF at ¶ 114.) Although the Equal Protection Clause ensures similarly situated persons are treated alike, it does not ensure absolute equality. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003); U.S. v. Devlin, 13 F.3d 1361, 1363 (9th Cir. 1994). With respect to the Other Inmate, the threatened staff member was present when the alleged threat occurred, no confidential informants were involved, and no investigation by CIU was conducted. (DSOF at ¶ 115.) The Other Inmate was cited with a major disciplinary violation and found guilty after a hearing, at which he waived his right to appear. (DSOF at ¶ 116.) In Ward's case, he did not make a verbal threat directly to Carr, but instead allegedly told other inmates of his intention to harm her and Officer Stitt. A CIU investigation was conducted, which necessarily took more time than the Other Inmate's hearing between himself and the officer threatened. In both cases, however, Stewart recommended reclassification based on the threat. (DSOF at ¶¶ 75-76, 117.) As such, Ward and the Other Inmate were not similarly situated. Ward cannot prevail on his equal protection claim and summary judgment is warranted. C. Plaintiff Has Not Shown a Compensable Injury.

Ward's claims for damages lack merit. He seeks "nominal damages" in the amount of $10,000.00 from each Defendant. (DSOF at ¶ 11.) He also seeks punitive damages in the amount of $100,000 from each Defendant. (Id.) Under § 1983, damages for violations of constitutional rights are determined according to principles derived from the common law of torts. See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Damages are commonly understood to compensate a party for loss or harm sustained. Cummings

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v. Connell, 402 F.3d 936, 942 (9th Cir. 2005). In this case, Ward has not requested or provided any evidence to sustain an award for compensatory damages. Nominal damages, however, serve a separate function. Id. at 943. As distinguished from punitive and compensatory damages, nominal damages are awarded to vindicate rights, the infringement of which has not caused actual, provable injury. Id. Nominal damages, as the term implies, are in name only and customarily are defined as a mere token or "trifling." Id. Although the amount of damages awarded is not limited to one dollar, the nature of the award compels that the amount be minimal. Id. Ward's claim for thousands of dollars does not constitute a proper demand for nominal damages. If the Court finds that a triable issue exists, Ward's damages should be limited to nominal damages as defined above. D. The Defendants Are Entitled to Eleventh Amendment Immunity.

To the extent that the Defendants are being sued in their official capacity, they are entitled to Eleventh Amendment Immunity. A suit against state officials in their official capacities constitutes a suit against the state itself. The Eleventh Amendment to the United States Constitution bars suits brought against a state in federal court, and extends to suits for monetary or retroactive injunctive relief against a state official acting in his official capacity. Edelman v. Jordan, 415 U.S. 651, 662-63, 677-78 (1974); Missouri v. Fiske, 290 U.S. 18, 28 (1933). Indeed, state officials sued in their official capacities are not "individuals" for purposes of § 1983 action. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). Finally, § 1983 does not abrogate Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 341 (1979). The allegations contained in Ward's Complaint preclude any sort of monetary relief due to Defendants' Eleventh Amendment immunity. Although Ward apparently sued both Defendants in their individual and official capacity, the nature of Ward's allegations against them is solely in their official capacity. In Kentucky v. Graham, 473 U.S. 159 (1985), the Supreme Court distinguished between official and individual 15
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capacity suits, characterizing official capacity suits as essentially, "another way of pleading an action against an entity of which the official is an agent . . . [and that] it is not a suit against the official personally, for the real party in interest is the entity." Id. at 165-66. (Internal citations omitted). Ward's suit against Defendants is essentially a de facto complaint against the ADC and its detention, housing and classification policies. Ward makes no allegations of wrongdoing against these Defendants other than in their official capacities. As such, to the extent that each Defendant is being sued in their official capacity for monetary or retroactive injunctive relief, Ward's suit must be dismissed. E. The Defendants Are Entitled to Qualified Immunity.

Ward's claims against all Defendants are barred by the doctrine of qualified immunity. Prison officials are shielded from liability in the performance of discretionary functions which do not violate clearly established statutory or constitutional rights of which a reasonable person should know. Mendoza v. Blodgett, 960 F.2d 1425, 1431 (9th Cir. 1992) (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982), cert. denied, 113 S. Ct. 1005 (1993)). The threshold inquiry in a suit asserting qualified immunity is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). If a constitutional violation has occurred, the court then looks to whether the officer is entitled to qualified immunity in spite of that violation. See Groh v. Ramirez, 540 U.S. 551, 563-64 (2004) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)). The answer to this question hinges on whether "`it would be clear to a reasonable officer that his conduct was unlawful'" under the circumstances. Groh, 540 U.S. at 563 (citing Saucier, 533 U.S. at 202). Taken in the light most favorable to Ward, and as more fully discussed above, the facts do not show that the Defendants' conduct violated a constitutional right. Ward cannot show how it would be clear to a reasonable person that Carr's and Stewart's 16
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actions were unlawful. Thus, Defendants are entitled to qualified immunity and Ward's Complaint should be dismissed. F. Ward Is Not Entitled to Punitive Damages

If this Court finds that the Defendants acted reasonably or are protected from compensatory damages by the doctrine of qualified immunity, there is no basis for imposing punitive damages against him. See Edelman v. Jordan, 415 U.S. 651, 662-63, 677-78 (1974). Assuming arguendo, that there is a triable issue concerning whether Carr and Stewart acted unreasonably or the Court finds that they are not entitled to qualified immunity, Ward's claim for punitive damages is still misplaced. A defendant is entitled to summary judgment on a plaintiff's claims for punitive damages if the evidence cannot reasonably support such a sanction. See Ward v. San Jose, 967 F.2d 280, 286 (9th Cir. 1991). A jury may only award punitive damages where the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56 (1983); Ward, 967 F.2d at 286. Such damages are reserved for those instances where the character of the conduct is so outrageous that "it calls for deterrence and punishment over and above that provided by compensatory awards." Wade, 461 U.S. at 54. In this case, Ward has absolutely no evidence that Carr and Stewart acted with evil motive or callous indifference to his rights. As such, Ward's claims for punitive damages must be dismissed. III. CONCLUSION For the foregoing reasons, Defendants Carr and Stewart request summary judgment in their favor on all of Ward's claims. /// /// /// /// 17
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RESPECTFULLY SUBMITTED this 15th day of April, 2008. Terry Goddard Attorney General

s/Michele L. Forney Michele L. Forney Assistant Attorney General Attorneys for Defendants Original e-filed this 15th day of April, 2008, 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: Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232

s/Colleen S. Jordan Secretary to: Michele L. Forney IDS04-0306/RSK:G04-20640 #178081

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