Free 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 Schriro, Linderman and Sabbagh, through counsel, request the Court DEFENDANTS' RESPONSE TO "MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION TO STAY" KEVIN ROY, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV03-2150-PHX-SRB (MEA)

16 deny Plaintiff Kevin Roy's Motion to Strike or in the Alternative Motion to Stay (dkt. 17 148) in which Roy asks the Court to strike or otherwise disregard the Defendants' Motion 18 to Dismiss. The Defendants' dispositive motion is well-grounded in law, supported by 19 admissible evidence, and--most importantly--raises the viability of the Court's subject20 matter jurisdiction. Without subject-matter jurisdiction, the Court cannot decide this case. 21 Roy contends that the Defendants have improperly notified the Court that prison

22 officials have approved his possession of six of the seven items at issue in this lawsuit and 23 that he has abandoned his desire for the seventh item, a dream catcher.1 This argument 24 lacks merit and does not change the fact that this case is moot. 25 Roy argues that he has not abandoned his desire for a dream catcher, despite that 26 his most recent request for approval of more than 100 items did not include a dream catcher.
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With their Motion to Dismiss, the Defendants included evidence showing that six

2 of the seven items that Roy originally sought through this lawsuit have been approved for 3 Esoteric Christian/Occultist practitioners and that Roy no longer seeks the seventh item, a 4 dream catcher. (See Ex. A, and Attachments, Defendants' Motion to Dismiss, dkt. 133.) 5 Roy argues that because the parties were engaged in court-ordered mediation, this 6 information is not properly before the Court.2 7 But this same information--approval of the six items--was provided to Roy in

8 response to his discovery request (see attached Ex. A, Defendant Linderman's Second 9 Supplemental Response to Plaintiff's Request for Production for Documents and Things; 10 see also dkt. 123, Notice of Service) and with an earlier letter from undersigned counsel to 11 Roy, as noted by Defendants in their response to Roy's Motion to Compel (see dkt. 125). 12 As for Roy's assertion that he has not abandoned his request for approval of a

13 dream catcher, the attached May 19, 2003, ADC Inmate Request for Approved Religious 14 Items shows that Roy abandoned his demand for a dream catcher years ago. In his 15 summary-judgment motion, Roy included his initial--February 13, 2003--ADC Inmate 16 Request for Approved Religious Items that he submitted to prison officials. (See Ex. 13 to 17 Plaintiff's Motion for Summary Judgment: Statement of Facts, dkt. 85.) But after

18 February 13, 2003, Roy submitted a second and third Request. (See attached Ex. B, 19 Roy's May 19, 2003 and March 17, 2003, ADC Inmate Requests for Approved Religious 20 Items.) In the third request for approval of religious items, dated May 19, 2003, Roy no 21 longer sought approval for a dream catcher. (Id.) 22 23 In support of his Motion, Roy cites Fed. R. Evid. 408. Rule 408 deems inadmissible--for proof of liability or the invalidity of a claim--evidence of compromise 24 for consideration to settle a disputed claim. But the Defendants did not submit Roy's most recent religious items request to show that his original demand for a dream catcher 25 was invalid or legally unsupportable. Instead, they submitted the evidence to show that since Roy no longer seeks approval for a dream catcher, the issue is moot. In fact, the 26 attached May 19, 2003, ADC Inmate Request for Approved Religious Items shows the same thing.
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The case is moot. See New Jersey Turnpike Authority v. Jersey Cent. Power and

2 Light, 772 F.2d 25, 27 (3rd Cir. 1985) ("Because we believe that the controversy has 3 become academic by reason of these changed circumstances, we conclude that our 4 jurisdiction has ceased and the case is moot.") 5 WHEREFORE, Defendants Schriro, Linderman and Sabbagh request the Court

6 deny Plaintiff's Motion to Strike or in the Alternative Motion to Stay. 7 8 9 10 11 12 13 COPY of the foregoing mailed this 13th day of July, 2006 to: 14 Kevin M. Roy, #131699 15 ASPC-Eyman-Meadows Unit 16 P.O. Box 3300 Florence, AZ 85232-3300 17 18 s/bam Secretary, Attorney General's Office 19 IDS04-0272/969508 20 21 22 23 24 25 26 3 s/Wanda E. Hofmann WANDA E. HOFMANN Assistant Attorney General Attorneys for Defendants RESPECTFULLY SUBMITTED this day of July, 2006. TERRY GODDARD ATTORNEY GENERAL

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