Free Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

TERRY GODDARD ATTORNEYGENERAL WANDA E. HOFMANN (0 14805) Assistant Attorney General 177 North Church Avenue, Suite 1105 Tucson, Arizona 8570 1- 1114 (520) 628-6044 Fax (520) 628-6050 [email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
KEVIN ROY, Plaintiff, NO.CV03-2 150-PHX-SRB (MEA)

v.
STATE OF ARIZONA, et al., Defendants.
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DEFENDANTS' MOTION TO DISMIS FOR LACK OF SUBJECT-MATTER JURISDICTION DUE TO MOOTNESS OR FOR SUMMARY JUDGMENT

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Synopsis
Plaintiff, an Arizona prison inmate, sought injunctive relief to obtain approval from

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the defendant prison administrators to possess seven items to practice his religion.

1 (Dkt. 19 at 7 and Count I.) Six of those seven items are now approved for Plaintiff;
I Plaintiff has abandoned his claim for the seventh.

(Affidavit of M. Linderman and1

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Attachments, Exhibit A, attached.)

Therefore, Defendants Schriro, Linderman and

1 issues are moot and therefore the Court lacks subject-matter jurisdiction. See Gros Ventre1

Sabbagh, through counsel, request that the Court dismiss this case because the remaining1

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Tribe v. US., 344 F. Supp. 2d 1221, 1230 (D. Mont. 2004) ("Mootness is jurisdictional; if
no case or controversy is presented to the Court, there can be no jurisdiction under Article 111."). Fed. R. Civ. P. 12(b)(l). In the alternative, the Defendants move for summary judgment as provided under Federal Rule of Civil Procedure 56 and Local Rule of Civil Procedure 56.1.

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11.

Relevant Facts
Defendants Dora Schriro, Michael Linderman and John Sabbagh present the

following facts from the record in support of this Motion:
1. Plaintiff Kevin Roy is an inmate incarcerated in the Arizona Department oj

Corrections (ADC). In 2003, he lived at the Meadows Unit of the Arizona State Prison Complex-Eyman in Florence (ASPC-Eyman). (First Amendec Complaint, Dkt. 19, Complaint; Affidavit of M. Linderman, attached a 1 Exhibit A.) 2. The Defendants are ADC Director Dora Schriro; Chaplain Michael Linderman, ADC Pastoral Administrator; and (retired) ASPC-Eyman Senio~ Chaplain John Sabbagh. (Complaint.) 3. In his First Amended Complaint, Roy alleged that in 2003 the Defendants violated his right to practice his Esoteric Christian/Occultist religion undel the First Amendment and the Religious Land Use and Institutionalizec Persons Act, 42 U.S.C.

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2000cc-1 (RLUIPA) because prison policj

limited to seven each the number of religious items (Count I) and books (including religious books) (Count 11) that inmates could possess (Complaint.) 4. In the Complaint, Roy sought declaratory and injunctive relief. (Complain1 at 7.)

5. On January 13, 2006, the Court denied Plaintiffs Motion for Summarl
Judgment and granted the Defendants' summary-judgment motion as tc Roy's First Amendment (Counts I and 11) and book (Count 11) claims (Dkt. 112.) 6. Following the Court's January 13, 2006, ruling, the only claim thai remained was Plaintiffs claim under RLUIPA regarding his attempts tc
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obtain approval under ADC's religious-practice and property policy for seven items, specifically a medallion, two packs of Tarot cards, a dream-catcher, an altar cloth, incense (cedar and sage) and an abalone shell.
(Id. Count I; Plaintiffs Motion for Summary Judgment: Statement of Facts,

Ex. 13, Dkt. 85.)
7. On February 13, 2003, Roy submitted a Request for Approved Religious
Items form seeking approval for a medallion, two packs of Tarot cards, a dream-catcher, an altar cloth, incense (cedar and sage) and an abalone shell, (Plaintiffs Motion for Summary Judgment: Statement of Facts, Exhibit 13; Dkt. 85.) 8. Roy did not submit documentation to prison officials demonstrating that a medallion, two packs of Tarot cards, a dream-catcher, an altar cloth, incense (cedar and sage) and an abalone shell are used to practice Esoteric Christianity/Occultism. (See id.; see also Dkt. 19; Dkt. 84-85; Dkt. 90-91.)
9. On November 3, 2003, Roy filed suit. (Dkt. 1.)

10. On January 13, 2006, denying Plaintiff summary judgment, the Court founc that he failed to meet his initial burden under RLUIPA to show thal withholding the seven items from him "imposed a substantial burden" on his religious practice. (Dkt. 114 at 11.) The Court opined that Roy had no1 shown that depriving him of the seven items "would substantially burden his ability to practice his religion." (Dkt. 112 at 17.) 11.During the course of the litigation, Roy filed information necessary tc satisfy ADC requirements for approval to possess the Tarot cards, an alta~ cloth, cedar and sage incense and a shell. (Inmates who declare a religion are permitted under policy to have a medallion, which must be worn undel their shirt.)
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Because ADC then had the information necessary tc
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substantiate that the requested items were related to .the practice of Roy's declared religion, as required by policy, they conducted a security review and approved all but one of the seven items. (ADC did not approve the dream-catcher because Roy did not file documentation showing that a dream-catcher is used in the practice of Esoteric Christianity and in his subsequent request for approval of religious items, Roy did not include a dream-catcher.) (See Dkt. 19; Dkt. 84-85; Dkt. 90-91; see also Exhibit A, attached, Affidavit of M. Linderman.) 12.The ADC Approved Religious Items List for Esoteric Christians/Occultists now includes the following items: altar cloth (24" X 24" maximum size) herbs (1 ounce each of u to five herbs consistent with approved herbs from current listy prayer beads (40" maximum length, strung on light, breakaway strin ; due to length allowance, should not be worn on the open yar )

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ritual stones (1" maximum size, up to four in a single smudging shell (4" X 8" maximum size)

tarot cards (number of cards dependent upon tarot deck purchased). (Linderman Affidavit.) 13. Inmates, like Roy, who are declared Esoteric Christians need not present documentation to support obtaining the items on the approved-items list; unit chaplains can authorize the items when Esoteric Christians submit a pro forma request (without Central Office review). Medallions are approved for all inmates who have declared a religion. (Linderman Affidavit.)

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14.ADC officials have revised policy to allow inmates to have as manj religious books as will fit in their designated Religious Items box. Religious books are holy books, books used to study holy books, and books that teacl. ceremonial aspects of the inmate's religion. (Similarly, inmates at ADC nc longer are restricted to seven religious items; they may have as man) approved items as will fit in their Religious Items box.) Affidavit.)
15. On April 18, 2006, Roy submitted an Inmate Letter to prison official!

(Linderrnar

requesting approval of ninety-five previously unapproved herbs and fift! other items, with citation to authority (for most of the fifty items) for thei use in his religion. (He did not include a dream-catcher, the seventh item ht sought via this lawsuit.) (Linderman Affidavit and Attachment 1.) 16.Chaplain Linderman researched and conferred with ADC securitj professionals and responded to Roy's letter on May 19, 2006. (Lindermar Affidavit and Attachment 2.) Of the fifty items that Roy listed in tht April 2006 Inmate Letter, Chaplain Linderman approved all but parchmen paper (not required per literature provided by Roy: "ordinary paper is jus as effective"); plastic bottles (as separate religious items, but herbs, oils an( liquid incense may come in plastic bottles); six different herbal tea! (inmates may possess five different herbs including tea and tea is sold at tht inmate store); thirty-one geomancy stones (per Roy's authority, tht practitioner may use these stones OR other items already approved an( requested by Roy); resins (for security reasons, resins are prohibited); rob( (security risk); CD player and discs (cassette players and clear-casec cassette tapes are permitted); any item that will not fit collectively wit1 other items in the religious box. (Linderman Affidavit and Attachment 2.)
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17. Chaplain Linderman advised Roy that for approval to keep his hobbycraft creations, policy provides that approval from the warden is required. (Id.) All of the hobbycraft items that Roy requested are items that already are included in the approved hobbycraft-items list "with the possible exception of poster board (card stock and construction paper are listed)." (Id.) 18.As for the ninety-five herbs, resins and oils that Roy listed, Roy indicated that he only intended to obtain five, the maximum amount allowed at a time under policy. (Linderman Affidavit and Attachment 1.) Chaplain Linderman invited Roy to specify the five herbs that he actually wants to get so that prison officials can determine if the five are acceptable and not waste resources reviewing ninety others. (Lindennant Affidavit and Attachment 2.) 19.ADC policy specifically allows inmates to attach documents to Inmate Letters when requested by staff. (Exhibit B, attached, ADC Department Order 9 13, Staff-Inmate Communications, effective September 1, 1996.)
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Legal Analysis
A.

Roy's only remaining claim for injunctive relief to obtain seven religious items is moot: six items are now approved under policy and Roy no longer seeks approval for the seventh.

The federal courts are courts of limited jurisdiction; their powers circumscribed by the terms of Article I11 of the Constitution, which states that they may hear only "Cases" or "Controversies."

U.S. Const. art. 111, 5 2, cl. 1. To sustain the court's jurisdiction, it

is not enough that a dispute was alive when suit was filed; Article I11 requires that a live controversy exist throughout all stages of the litigation. Gator.com Corp. v. L.L. Bean,

Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005), citing Steffel v. Thompson, 415 U.S. 452,
459 n. 10 (1974) (an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed). Thus, should the dispute dissolve at any time due to a
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change in circumstances, the case is moot. See DeFunis v. Odegaard, 416 U.S. 3 12, 3 16-17 (1974). When a case becomes moot, the federal court lacks subject-matte1

iurisdiction and the matter must be dismissed. See Foster v. Carson, 347 F.3d 742, 745, (9th Cir. 2003) ("Mootness is a jurisdictional issue"); Ruvalcaba v. City o Los Angeles, f 167 F.3d 514, 521 (9th Cir. 1999) ("If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack oj jurisdiction."). The Supreme Court has articulated a two-part test for mootness: (1) there is nc reasonable expectation that the alleged violation will recur'; and, (2) interim relief
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events have completely and irrevocably eradicated the effects of the alleged violation, County o Los Angeles, 440 U.S. 625, 63 1 (1979) (quoting United States v. W T. Grani f Co., 345 U.S. 629, 633 (1953)). Where both conditions are satisfied, -the case is moo1 because "neither party has a legally cognizable interest in .the final determination of the underlying questions of fact and law." County o Los Angeles, 440 U.S. at 63 1. Where f injunctive relief is involved, questions of mootness are determined in light of the presenl circumstances. Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996). Plaintiff Kevin Roy, an ADC inmate, claimed that ADC Director Schriro, Pastoral Administrator Chaplain Linderman and (now retired) Chaplain Sabbagh, interfered with his practice of Esoteric Christianity/Occu.ltism by not allowing him to possess seven

The "capable of repetition, yet evading review" exception to mootness "applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same com laining party will be subjected to the same action again." Cole v. Oroville Unioli Hig Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000). The facts of this case do not fall within this exception. ADC officials have revised religious-practice policy (see Exhibil A) and Roy has demonstrated that complying with the religious-items-approval procedure works (id. and Attachments 1 and 2). See Resnick v. Adams, 348 F.3d 763, 768 n.6 (9th Cir. 2003) (RLUIPA did not a ply to prisoner's religious-practice claim that requiring him to fill out standard prison orm in order to receive a religious privilege violated his right to freely exercise his religion because requiring him to complete a routine form did not amount to a "substantial burden").

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religious items.' (Dkt. 19, Count I; see also Plaintiffs Motion for Summary Judgment: Statement of Facts, Exhibit 14.) Roy sought injunctive relief to obtain approval for a medallion, two packs of Tarot cards, a dream-catcher, an altar cloth, incense and an abalone shell. (Complaint at 7.) Roy filed suit for injunctive relief to obtain items to practice his religion. He claimed in Count I of his Complaint that the Defendant prison officials violated his RLUIPA rights when he attempted to obtain approval to possess seven items to practice his Esoteric Christian religion. (Dkt. 19, Count I.) In his Motion for Summary Judgment, Roy submitted a copy of his Request form in which he requested approval for a medallion, two packs of Tarot cards, a dream-catcher, an altar cloth, incense (cedar and sage) and an abalone shell. (Plaintiffs Motion for Summary Judgment: Statement of Facts,

Exhibit 13, Dkt. 85.) Now Roy is allowed to possess six of the seven items he sought; added to the List of Approved Items for Esoteric Christians are an altar cloth, herbs
(1 ounce each of up to five herbs consistent with approved herbs from current list, which

includes cedar and sage), prayer beads, ritual stones, a smudging shell, and tarot cards. (Exhibit A.) When Roy recently requested approval of over one-hundred items (Exhibit A and Attachment I), he did not include a dream-catcher, the seventh item he requested in this lawsuit (id.; c Dkt. 85, Exhibit 13.) f An actual controversy has ceased to exist. The items that Roy sued to have are now approved or he has indicated that he no longer wants them. Because this case involves injunctive relief, mootness is determined in light of the present circumstances. Specifically, Roy alleged in Count I that the Defendants foreclosed all of his religious practice in violation of the First Amendment, the Religious Land Use and Institutionalized Persons Act (RLUIPA) and A.R.S. tj 4 1- 1493.01 because they (1) limited the number of religious- ractice items he could possess and required him to rovide documentation showing t at the items he wished to possess were normally ue in the s! practice of the Occultist/Esoteric Christian religion and (2) required Roy to purchase his religious articles from the inmate store. (Complaint at 4-4E.) In Count 11, Roy alleged that Defendants Schriro and Lindennan violated his First Amendment free-exercise right by limiting to seven the number of books that inmates may possess. (Complaint at 5-5A.)
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Mitchell, 7 5 F.3d at 528. Roy has received what he requested in his lawsuit, i.e., access to
items to practice his religion. Because there is no reasonable expectation that ADC will change its policy allowing Roy to maintain these items, Roy's RLUIPA claim is moot and it should be dismissed for lack of justiciability.

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The Rule 56 summary-judgment standard is satisfied here.

In the alternative, should the Court find that Roy's claim is not mooted, there is no genuine issue as to any material fact as to his RLUIPA claim and the Defendants should be granted summary judgment as a matter of law. A court must grant summary judgmeni if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. Because there is no genuine issue as to any material fact and the Defendants are entitled to judgment as a matter of law, summary judgment is properly granted here. The Court denied Roy's summary-judgment motion and partially granted and denied the Defendants'. (January 13, 2006, Order, Dkt. 112.) The Court found that

"Plaintiffs claim is moot with respect to his ability to possess more than seven religious items. His claim is not moot, however, with respect to the other aspects of his claim concerning access to religious items." (Id. at 10.) Consistent with RLUIPA, the Couri found that Plaintiff Roy was required (but had not met his burden) to first show that the procedure for obtaining approval to possess the seven religious items constituted a "substantial burden." (Id. at 11.) Thus, the Court found that as a matter of law, the burden did not shift to the Defendants to demonstrate that the alleged substantial burden was "in furtherance of a compelling governmental interest." (Id., quoting

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42 U.S.C.

9 2000cc-l(a);

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2000cc-2(b); Warsoldier v. Woodford, 418 F.3d 989, 995

:9th Cir. 2005).) After filing this lawsuit, Roy submitted documentation demonstrating that six oj the seven items that he sued to receive permission to possess, are used by Esoteric Christians/Occultists. (See Affidavit of M. Lindennan, attached as Exhibit A.) Based on this information, ADC officials have approved possession of the six items-a Tarot cards, an altar cloth, incense (cedar and sage) and an abalone shell-by Roy who have declared Esoteric Christian/Occultist as their religion. (Id.) Roy recently submitted, per policy3, a request for approval of over one hundrec items for use in his religious practice. (Exhibit A, Attachment 1.) In the request, Roy dic not request approval for the seventh item at issue in this lawsuit, a dream-catcher. (Id.; Prison religious and security officials reviewed the list, consistent with ADC policy, anc approved most of the items (Exhibit A, Attachment 2), thereby demonstrating that the ADC religious-item-approval policy does not present a "substantial burden" to religious practice. See Resnick, 348 F.3d at 768 n.6 (requiring inmate to fill out standard prisor medallion: inmates like

Roy was not required to resubmit documentation with his request because prisor officials had access to documentation that he submitted durin this litigation. (See Exhibil A.) .However, had he been requested to submit additional ocumentation, prison policq specifically allows inmates to attach documents to inmate letters when requested by staff See attached Exhibit B, ADC Department Order No. 9 16, Staff-Inmate Communications. effective September 1, 1996, which provides in relevant portion:

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1.2 Each Inmate Letter shall be limited to one issue, and written contents shall be limited to the space provided on the form. No attachments shall be accepted. 1.2.1 Non-compliance may result in the Inmate Letter being returned to the inmate. Inmates may provide additional information pertaining to the issue when requested by staff. (Emphasis added.)
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form to receive religious accommodation does not trigger RLUIPA because it is not a .'substantial burden" to the inmate). dismissed on this basis as well. Thus, Plaintiffs RLUIPA claim is properlq

[V.

Prayer for Relief
Because there is no controversy remaining requiring the Court's injunctive relief

the Court lacks jurisdiction.

In the alternative, the undisputed facts negate Plaintiff 5

religious-property claim under RLUIPA. WHEREFORE, the Defendants request the Court dismiss this case in its entirety RESPECTFULLY SUBMITTED this 15th day of June, 2006.

TERRY GODDARD ATTORNEY GENERAL

slwanda Hofmann WANDA E. HOFMANN Assistant Attorne General i Attorneys for De!endants

COPY of the foregoing mailed this 15th day of June, 2006 to: Kevin M. Roy, #13 1699 ASPC-Eyrnan-Meadows Unit P.O. Box 3300 Florence, AZ 85232-3300

IDSO4-02%1964672

s/J. Patterson Secretar Attorney General's Office

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