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

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ronald Flood, Plaintiff, v. Dora Schriro, et al., Defendants. Defendants1, by and through undersigned counsel, submit their Reply in Support of their Motion for Summary Judgment (Dkt. 35). The pleadings and supporting documents establish that Plaintiff fails to provide any evidence to establish that there is a genuine issue as to any material fact precluding entry of judgment for Defendants as a matter of law. This Reply is supported by the attached Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 25th day of May, 2006. TERRY GODDARD Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants
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No: CV03-2050-PHX-DGC (VAM) REPLY IN SUPPORT OF SECOND MOTION FOR SUMMARY JUDGMENT (DKT. 35.)

Dora Schriro, Conrad Luna and Barbara Shearer.
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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION For Ronald Flood ("Flood") to survive Defendants' Motion for Summary Judgment, he must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995). Flood's Response to Defendants' Motion for Summary Judgment ("Response") (Dkt. 37) fails to demonstrate that there is a triable factual issue. Flood fails to present any evidence that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Defendants continue to rely on their Second Motion for Summary Judgment (Dkt. 35) and supporting Statement of Facts (Dkt. 36). II. ARGUMENT A. Flood Fails to Establish That Defendants Violated His Eighth Amendment Right to be Free of Cruel and Unusual Punishment. To state an Eighth Amendment cruel and unusual punishment claim, Flood must establish that Defendants' "act(s) or omission(s)...result(ed) in `the denial of the minimal civilized measure of life's necessities'" and that Defendants were "deliberately indifferent" to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Flood fails to satisfy the initial objective component because he offers no additional evidence that the exercise afforded him while housed in the Special Management Unit ("SMU") II, denies him of the "minimal civilized measure of life's necessities." Amendment claim fails as a matter of law. 1. Direct Sunlight Thus, Flood's Eighth

Flood argues that depending on the time of year and the physical placement of the exercise area, it is possible that he may not receive any direct sunlight. He argues that some exercise areas do not receive any direct sunlight. Flood's argument is without merit.

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There is no dispute that depending on the time of year and/or the time of day, some inmates may not receive direct sunlight during their exercise periods. However, the Eighth Amendment prohibits "unnecessary and wanton infliction of pain, which includes any punishment incompatible with the evolving standards of decency that mark the progress of a maturing society." Zatko v. Rowlan, 835 F. Supp. 1174, 1179 (1993) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). When the amount of sunlight received by an inmate depends on the weather and not on the actions of defendants, the claim should be dismissed as factually frivolous. (Id.) Thus, Flood's argument fails. 2. Fresh Air

Flood argues that the air movement is limited and that not many breezes come straight down into the exercise area. There is no dispute that the exercise area is twenty-three feet long, eleven feet wide, and eighteen feet high. (Dkt. 36 at ¶ 6; Dkt. 37.) The walls and floor are concrete and the top is covered with a steel fencing. (Id.) As such, the area is exposed to the outside elements, i.e. temperature, rain, sunlight, air, etc... Lack of a breeze does not rise to the level of an Eighth Amendment violation and therefore his argument fails. 3. Exercise Equipment

Flood argues that because of the lack of exercise equipment he cannot work the major muscle groups, which leads to muscle atrophy. Again, there is no dispute that the exercise area only contains a hand-ball. (Dkt. 36 at ¶ 12; Dkt. 37.) Flood can work his major muscle groups by engaging in physical activity in the exercise area to include: jumping jacks; walking; running in place;

calisthenics; playing handball; etc.. (Dkt. 36 at ¶ 12, 25, 26.) Thus, Flood's argument fails.

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Keenan

Flood argues that SMU II has no real outdoor exercise. He cites Keenan in support of his position that "backdoor" cells are unconstitutional. The outdoor exercise area in SMU II is not like the cell utilized for exercise in Keenan. The outdoor exercise area in Keenan "restricted his exercise to a 8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third." Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996). Unlike Keenan, whose exercise area has a solid roof, the exercise area at SMU II has a perforated ceiling which allows exposure to all elements, especially the sun light. As such, Flood's argument fails. Because Flood fails to provide evidence that Defendants Schriro, Luna or Shearer deprived him of the "`minimal civilized measure of life's necessities," his Eighth Amendment claim fails as a matter of law. CONCLUSION For the foregoing reasons, Defendants request that the Court grant their Motion for Summary Judgment and dismiss the remaining exercise claim. RESPECTFULLY SUBMITTED this 25th day of May, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

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Original e-filed this 25th day of May, 2006, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Ronald Flood, #067127 ASPC-Eyman-SMU II Post Office Box 3400 Florence, AZ 85232 s/A. Palumbo Legal Secretary to Catherine M. Boland IDS04-0442/RSK:G2003-04659
#961977

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