Free Motion to Strike - 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 move to strike Plaintiff's KEVIN ROY, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV03-2150-PHX-SRB (MEA) MOTION TO STRIKE PLAINTIFF'S "SUPPLEMENTAL ARGUMENT AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT"/DEFENDANTS' NOTICE OF ISSUE MOOTNESS

16 "Supplemental Argument and Authorities in Support of Motion for Summary Judgment," 17 Supplemental Argument, in which Plaintiff Roy supplements his arguments responding to 18 the Defendants' Cross-Motion for Summary Judgment. Allowing Roy the opportunity to 19 supplement his response arguments is not warranted, is not provided for under court rules, 20 and is unfair. 21 In his First Amended Complaint dated June 2, 2004, Arizona prison inmate Kevin

22 Roy alleged that Arizona Department of Corrections (ADC) Director Schriro, ADC 23 Pastoral Administrator Linderman and Chaplain Sabbagh violated his right to freely 24 exercise his Occultist/Esoteric Christian1 beliefs under the First Amendment and the 25 26 Counsel apologizes for her misspeak in the Defendants' summary-judgment reply when referring to Plaintiff Roy's professed religion. No disrespect was intended.
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1 Arizona Constitution2 because ADC policies--Department Orders 904 (religious 2 activities) and 909 (property)--limit the number of articles (Count I) and number of books 3 (Count II) he is permitted to possess. (First Amended Civil Rights Complaint by a 4 Prisoner dated June 2, 2004, Complaint, at 4-4E and 5-5A.) Roy sought injunctive relief, 5 specifically, a change in ADC policy to allow him to possess as many religious items as 6 will fit in a religious-property box. (Complaint at 7.) 7 Plaintiff Roy moved for summary judgment on April 12, 2005 and the Defendants

8 cross-moved for summary judgment on May 20, 2005. Briefing was completed on June 9, 9 2005. Notwithstanding that, on June 16, Roy supplemented his summary-judgment

10 argument with caselaw already cited by the Defendants in their June 9 Reply. (See 11 Defendants' Reply to Plaintiff's Response to Defendants' Cross-Motion for Summary 12 Judgment at 7.) Additionally, in a "Motion to Strike the Defendants' Reply" dated June 13 16, 2005, Plaintiff again supplemented his summary-judgment arguments after briefing 14 was complete. Now, in the instant 17-page Motion, Roy attempts to argue more. This is 15 not fair. Because briefing is complete, the Defendants request the Court strike Plaintiff's 16 Supplemental Argument. 17 The Defendants also bring to the Court's attention the amendment to ADC policy

18 which effectively renders Roy's religious-property claims moot. In the Complaint, Roy 19 alleges that ADC religious activities and property policies are unconstitutional; he seeks 20 injunctive relief to change the policies. (Complaint at 7.) Specifically, Roy contends that 21 ADC's policies limiting the number of religious articles that he may possess to seven, 22 ADC Department Orders 904 and 909, unlawfully interfere with his ability to practice his 23 Occultist/Christian Esoteric beliefs. He asks the Court to order ADC to change its policy 24 so that he is permitted to have as many articles as would fit in a designated religious-items 25 26 While Plaintiff cites 42 U.S.C. § 2000cc as a basis for jurisdiction (Complaint at 1), he makes no mention of the law in the body of the Complaint (see Counts I and II).
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1 box. (Id.) 2 Per recent amendments to Department Orders 904 and 909, the number of religious

3 articles that inmates may possess is not limited in number: ADC inmates are now 4 permitted to possess as many religious items as they can fit into a designated religious5 items box. (See Affidavit of Michael Linderman and attached policy revisions, Exhibit 6 A.) Moreover, the size of the approved religious-items box that inmates may possess has 7 been increased from 9" x 12" x 4" to 17.5" x 10.25" x 11.5." (Id.) Roy's claim that 8 Department Orders 904 and 909 interfere with his free exercise of religion because they 9 limit the number of religious items that he may possess (Count I--Complaint at 4-4E, 7) 10 is moot and is properly dismissed. 11 The Court's jurisdiction is limited to "Cases" or "Controversies," U.S. Const. art.

12 III, § 2, cl. 1, that is, disputes that are real and live at all times, not feigned, academic, or 13 conjectural, Russman v. Board of Educ. of Enlarged City School Dist. of City of 14 Watervliet, 260 F.3d 114, 118 (2d Cir. 2001); see also Lewis v. Continental Bank Corp., 15 494 U.S. 472, 477-78 (1990) (dispute must persist throughout the litigation; to sustain the 16 court's jurisdiction, it is not enough that a dispute was alive when suit was filed, the 17 parties must continue to have a personal stake in the outcome of the lawsuit). If, as here, a 18 dispute dissolves at any time due to a change in circumstances, the case becomes moot. 19 See DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974) (per curiam); Fox v. Bd. of 20 Trustees, 42 F.3d 135, 139-40 & n. 2 (2d Cir. 1994) (mootness strips court of subject21 matter jurisdiction and the matter must be dismissed); Al Najjar v. Ashcroft, 273 F.3d 22 1330, 1336 (11th Cir. 2001). "Any decision on the merits of a moot case or issue would 23 be an impermissible advisory opinion." Fla. Ass'n of Rehab. Facilities v. Fla. Dep't of 24 Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000). This Court is obligated to 25 consider whether Roy's religious-property claim is moot. 26 Defendants also note that in April 2005, Defendant Chaplain Sabbagh retired from 3

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1 State service. (Exhibit A.) To the extent that Plaintiff seeks injunctive relief against 2 Chaplain Sabbagh, that issue is moot as well. 3 WHEREFORE, Defendants Schriro, Linderman and Sabbagh request the Court

4 strike Plaintiff's "Supplemental Argument and Authorities in Support of Motion for 5 Summary Judgment"; dismiss Plaintiff's religious-property claim (Count I of the 6 Amended Complaint); and dismiss former ADC Chaplain Sabbagh from this lawsuit. 7 8 9 10 11 12 13 14 COPY of the foregoing mailed this 19 day of October, 2005 to: 15 Kevin M. Roy, #131699 16 ASPC-Eyman, Meadows Unit 17 P.O. Box 3300 Florence, AZ 85232-3300 18 19 s/CBailey Secretary, Attorney General's Office 20
928438

RESPECTFULLY SUBMITTED this

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day of October, 2005.

TERRY GODDARD ATTORNEY GENERAL

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

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