Free Reply to Response to Motion - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 WANDA E. HOFMANN (014805) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 628-6044 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 Defendants Schriro, Linderman and Sabbagh reply that Plaintiff's untimely v. STATE OF ARIZONA, et al., Defendants. KEVIN ROY, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV03-2150-PHX-SRB (MEA) DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO STRIKE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION TO STAY RESPONSE PENDING DECISION ON MOTION TO DISMISS FOR LACK OF JURISDICTION (MOOTNESS)

17 dispositive motion is properly stricken. (See December 30, 2004 Order, dkt. 67, setting 18 April 23, 2005 as parties' dispositive-motion deadline.) Plaintiff Roy moved for summary 19 judgment and the Court denied his motion. His recently-filed cross-motion is untimely 20 and the Court lacks jurisdiction to decide it. 21 Roy argues that because the Defendants filed a summary-judgment motion, he

22 necessarily may cross-move for summary judgment, or else the Court may not consider 23 the Defendants' Motion. (Plaintiff's Response to Defendants' Motion to Strike, dkt. 156, at 24 1.) Roy is incorrect. Subject-matter jurisdiction is essential for a court to exercise its 25 power, therefore challenges to subject-matter jurisdiction are proper at any stage of the 26 litigation. See Emrich v. Touche Ross, 846 F.2d 1190 (9th Cir. 1988).

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1

Roy also seems to argue that his motion should be considered because the case is

2 not moot. (See Response at 2-8.) But he has failed to meet his burden to prove that the 3 Court has subject-matter jurisdiction. See Thomas v. Gaskill, 315 U.S. 442 (1942)

4 (plaintiff asserting jurisdiction bears the burden of establishing its existence when 5 challenged by the defendant). He has not proved by a preponderance of the evidence that 6 this case is not moot. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). 7 Therefore, the Court should not consider his untimely summary-judgment motion. 8 Defendant Chaplain Linderman has presented evidence showing that if Roy

9 submitted paperwork requesting to purchase a medallion, two packs of Tarot cards, an 10 altar cloth, incense (cedar and sage) and an abalone shell, he would be approved under 11 policy to purchase those items to practice Esoteric Christianity/Occultism. (See

12 Defendants' Motion to Dismiss, Ex. A, Attachment 2.) Requiring an inmate to comply 13 with prison policy by submitting a form to receive religious privileges does not violate his 14 free-exercise rights. See Resnick v. Adams, 348 F.3d 763, 768 n.6 (9th Cir. 2003)

15 (RLUIPA did not apply to prisoner's religious-practice claim that requiring him to fill out 16 standard prison form in order to receive a religious privilege violated his right to freely 17 exercise his religion because requiring him to complete a routine form did not amount to a 18 " substantial burden Chaplain Linderman also has testified that he has researched the use "). 19 of a dream-catcher in the practice of Esoteric Christianity/Occultism without result and 20 that Roy has not submitted information to prison officials to support his request for its use. 21 (See Motion to Dismiss, Ex. A; see also Dkt. 19; Dkt. 84-85; Dkt. 90-91.) And Chaplain 22 Linderman has testified that he has recently considered approval of approximately one23 hundred other religious-practice items in response to Roy's written request. (Motion to 24 Dismiss, Ex. A, Attachment 2.) 25 Roy has failed to present admissible evidence that this case is not moot. Despite

26 his argument to the contrary, he submits no evidence showing that he has attempted to 2

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1 purchase a medallion, two packs of Tarot cards, a dream-catcher, an altar cloth, incense 2 (cedar and sage) and an abalone shell (and a dream-catcher, for that matter) in compliance 3 with prison policy, and evidence that prison officials have denied him approval to buy the 4 items. And he has failed to show that he has submitted information substantiating his use 5 of a dream-catcher to practice his religion, and evidence that prison officials have 6 improperly denied him approval to purchase a dream-catcher. Because Roy has failed to 7 meet this burden, the case should be dismissed as moot. 8 Under the present circumstances, there is nothing more for the Court to do. The

9 ball is in Roy's court. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996) (where 10 injunctive relief is involved, questions of mootness are determined in light of the present 11 circumstances). It is Roy's refusal to buy the religious items that stops him from having 12 them, not the Defendant prison officials nor the Court. Because the case is moot, the 13 Court should strike Plaintiff's Cross-Motion for Summary Judgment and dismiss the 14 lawsuit. 15 WHEREFORE, Defendants request the Court strike Plaintiff's Cross-Motion for

16 Summary Judgment 17 18 19 20 21 22 23 24 25 26 3 s/Wanda Hofmann WANDA E. HOFMANN Assistant Attorney General Attorneys for Defendants RESPECTFULLY SUBMITTED this 22nd day of September, 2006.

TERRY GODDARD ATTORNEY GENERAL

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1 COPY of the foregoing mailed this 22nd day of September, 2006 to: 2 Kevin M. Roy, #131699 3 ASPC-Eyman-Meadows Unit 4 P.O. Box 3300 Florence, AZ 85232-3300 5 6 s/J. Patterson Secretary, Attorney General's Office 7
IDS04-0272/979822

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