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 v. 12 STATE OF ARIZONA, et al., 13 Defendants. 14 15 Defendants Dora Schriro, Michael Linderman and John Sabbagh request the Court 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 DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION DUE TO MOOTNESS OR FOR SUMMARY JUDGMENT

16 dismiss this case with prejudice because the matter is moot and therefore the Court lacks 17 jurisdiction. The undisputed evidence shows that Plaintiff Kevin Roy may obtain six of 18 the seven religious items at issue by submitting a form to his unit chaplain, who will 19 provide him a listing of the items when Roy obtains them, for Roy's accountability. (See 20 Chaplain Linderman Affidavit, Ex. A to Motion to Dismiss.) Roy concedes that he has 21 not submitted the form to his unit chaplain, contending that officials must first provide 22 him a "Certification of Approved Religious Items." (Plaintiff's Response at 3.) However, 23 Roy misconstrues the process for obtaining religious-item approval. As explained by 24 Chaplain Linderman: 25 26 9. Normally we do not approve items until an inmate is ready to purchase them; then he is given a list of the approved items to put on his religious-property box.

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10. For operational and security reasons, when chaplains approve religious items, they give the inmate a listing of all of his approved religious items. The inmate tapes the list onto his religious-items box for accountability purposes, such as when officers conduct routine searches of inmates' property and cells. (For security reasons, security personnel periodically search all inmate property, including legal boxes and religious property. History has shown that inmates hide contraband in their legal and religious-property boxes. Also, for security and operational reasons, policy prohibits inmates from stealing, bartering and otherwise exchanging property. Unauthorized property, including unaccounted property, is considered contraband and subject to confiscation.) 11. Under DO 909, my office maintains a list of items for religious practice that have been approved. The list is revised periodically as more items are approved. The item-approval process includes a security review to avoid allowing into the prison items that threaten the safe and orderly operation of the prison.

12 (Motion to Dismiss, Ex. A.) 13 Because Roy has not submitted a form to his unit chaplain listing the items he

14 wishes to purchase, he has not received the listing of the approved items to place on his 15 religious-items box. "[E]ven `clearly established' rights are subject to reasonable

16 limitations in the prison context." See Resnick v. Adams, 348 F.3d 763, 768 17 (9th Cir. 2003) (holding that requiring a prisoner to complete a standard prison form to 18 obtain kosher meals did not violate his right to free exercise of religion.). Roy has no 19 right to possess religious property without complying with ADC policy to receive it: 20 requiring a prisoner to comply with a standard prison procedure to obtain religious 21 privileges does not violate his right to freely exercise his religion. Nonetheless, the six 22 items are on the approved list for inmates who have declared themselves Esoteric 23 Christian/Occulist. (Chaplain Linderman Affidavit.) Roy's refusal to submit a form 24 listing the six religious items he intends to purchase in order to obtain a list of those items 25 from his unit chaplain to place on his religious box does not keep this controversy alive. 26 See Resnick, 348 F.3d at 767. 2

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Roy also acknowledges that he did not request approval for a dream-catcher, the (Response at 4.) As

2 seventh item, after his initial request on February 13, 2003.

3 explained by Chaplain Linderman, the other six items at issue were approved based upon 4 documentation that Roy submitted during this litigation. (Motion to Dismiss, Ex. A.) But 5 because Roy did not, and has not, submitted information demonstrating that prohibiting 6 him from possessing a dream-catcher interferes with his ability to practice his Esoteric 7 Christian/Occultist beliefs--and, despite his independent research efforts, Chaplain 8 Linderman was unable to find any support in his religious texts, the internet, or elsewhere 9 that Esoteric Christians/Occultists use a dream-catcher in their practice--prison officials 10 have not approved a dream-catcher. Roy does not allege that he attempted to obtain 11 approval for a dream-catcher by complying with policy, i.e., by submitting documentation 12 showing that a dream-catcher is used in the practice of Esoteric Christianity/Occultism.1 13 Roy's failure to specifically request a dream-catcher--which he admits, for

14 whatever reason, not having requested--not only indicates that he no longer seeks a 15 dream-catcher to practice his religion, but defeats his standing. See Resnick, 348 F.3d at 16 768. Without complying with the standard requirement to obtain approval and possession 17 of religious-practice items, Roy lacks standing to challenge their denial. Id. at 767 18 ("`[u]nless Resnick participated, or attempted to participate, in the Common Fare 19 Program, he could not be injured by, and would have no standing to challenge, 20 deficiencies in the administration of the program at Lompoc.'"). Because Roy admits that 21 he did not attempt to comply with policy to obtain approval for a dream-catcher, the issue 22 is properly dismissed because he lacks standing. Id. 23 Further litigation is unwarranted, unnecessary and wasteful. Roy sought injunctive

24 relief in this lawsuit: 25 As noted by the Court, Roy has not shown that depriving him of the seven items 26 "would substantially burden his ability to practice his religion" as required to state a claim under the Religious Land Use and Institutionalized Persons Act. (Dkt. 112 at 17.)
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A. Enter a temporary restraining order (TRO) and/or preliminary injunction enjoining defendants from enforcing the provisions of the policy limiting religious articles and books to a total of seven, and to stop their disparaging treatment of non-traditional religious groups. Order the defendants to allow the storage of religious articles (not deemed exempt from placement in the religious box) to be limited only by the space in the box (12" x 9" x 5"); to allow the storage of religious books (subject to normal censorship guidelines) to be limited only by the space in one of the storage boxes (17 ½" x 10 ¼" x 11 ½"); that defendants institute a policy where they secure the "written documentation" from the inmate who first request (so that proof by one inmate is sufficient for all, in regards to that particular faith); and that defendants refrain from selling religious items in the inmate store. B. Enter a declaratory judgment that defendants have violated Roy's constitutional rights. C. Enter a permanent injunction based on the foregoing, including that an item be only motivited [sic] by a religious belief, not mandated by it. (See First Amended Complaint at 7.) The issue that remains after the Court ruled on the

14 parties' summary-judgment motions (dkt. 112) regard seven items: 15 16 17 18 19 20 21 (Dkt. 112 at 9, 13.) Because exercise of the Court's power to enjoin the Defendants to 22 allow Roy to obtain the seven specific items is no longer at issue the case is moot. There 23 is no present harm left to enjoin. See New Jersey Turnpike Authority v. Jersey Cent. 24 Power and Light, 772 F.2d 25, 27 (3rd Cir. 1985) ("Because we believe that the 25 controversy has become academic by reason of these changed circumstances, we conclude 26 that our jurisdiction has ceased and the case is moot.") There is nothing left to decide and 4 Plaintiff applied for, and was denied, permission to possess seven specific religious items. The propriety of that denial is one of the subjects of this lawsuit. ... The Court finds that there are questions of material fact as to whether the procedure, as it was implemented by Defendants vis-à-vis Plaintiff's request for religious items, was substantially burdensome.

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1 therefore the Court no longer has jurisdiction to hear this case. See U.S. Const., Art. III, 2 § 2.2 3 Federal courts do not enjoy unlimited power. A fundamental restriction limits the

4 courts' authority to cases in which there is an existing controversy: 5 6 7 8 9 The federal courts are empowered by Article III to hear "cases and controversies." U.S. Const. art. III, § 2. Accordingly, an actual, live controversy must remain "at all stages of federal court proceedings, both at the trial and appellate levels." That is, "[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Therefore, a request for injunctive relief remains live only so long as there is some present harm left to enjoin.

10 de la O v. Housing Authority of City of El Paso, Tex., 417 F.3d 495, 499 (5th Cir. 2005). 11 Under Federal Rule of Civil Procedure 12(b)(1), parties may challenge subject matter 12 jurisdiction at any stage of the proceedings. See Emrich v. Touche Ross, 846 F.2d 1190, 13 1194 (9th Cir. 1988). 14 The party asserting that jurisdiction exists--Plaintiff Roy here--bears the burden

15 of establishing its existence. See Tosco Corp. v. Communities for a Better Environment, 16 236 F.3d 495, 499 (9th Cir. 2001) ("When subject matter jurisdiction is challenged under 17 Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in 18 order to survive the motion.") When the court discovers, or a party calls to its attention, a 19 defect essential to its jurisdiction, the court "must dismiss the case, unless the defect be 20 21 22 23 24 25 26
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Article III, § 2 of the Constitution provides: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Counsuls; - to all Cases of admiralty and maritime Jurisdiction; - to Controversies between two or more States; - between a State and Citizens of another State; between citizens of different States; - between Citizens of the same State claiming Lands under Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
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1 corrected by amendment." Smith v. McCullough, 270 U.S. 456, 459 (1926). Plaintiff Roy 2 has failed to establish that this case in not moot and therefore dismissal is proper. Id.; 236 3 F.3d at 499. Roy's refusal to submit a form to the unit chaplain does not create a 4 justiciable issue. See Resnick, 348 F.3d at 767-68. Therefore, dismissal is proper.

5 McCullough, 270 U.S. at 459. 6 WHEREFORE, Defendants Schriro, Linderman and Sabbagh request the Court

7 dismiss this lawsuit against them in its entirety with prejudice. 8 9 10 11 12 13 14 15 COPY of the foregoing mailed this 8th day of September, 2006 to: 16 Kevin M. Roy, #131699 17 ASPC-Eyman-Meadows Unit 18 P.O. Box 3300 Florence, AZ 85232-3300 19 20 s/J. Patterson Secretary, Attorney General's Office 21
977687/IDS04-0272

RESPECTFULLY SUBMITTED this 8th

day of September, 2006.

TERRY GODDARD ATTORNEY GENERAL

s/Wanda Hofmann WANDA E. HOFMANN Assistant Attorney General Attorneys for Defendants

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