Free Motion for Summary Judgment - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General State Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ronald Flood, Plaintiff, v. Dora Schriro, et al., Defendants.

No: CV03-2050-PHX-DGC (VAM) DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT

Defendants1, by and through undersigned counsel, respectfully move for Summary Judgment, pursuant to Fed. R. Civ. P. 56 and L. R. Civ. P. 56.1, as to Plaintiff's Eighth Amendment exercise claim. The pleadings and supporting documents, viewed in the light most favorable to Plaintiff, 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. The attached

Memorandum of Points and Authorities and concurrently filed Statement of Facts supports this pleading.

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Dora Schriro, Conrad Luna and Barbara Shearer.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff Ronald Flood ("Flood") is an inmate in the custody of the Arizona Department of Corrections ("ADC"). (Defendants' Statement of Facts filed concurrently with the Second Motion for Summary Judgment, hereinafter "DSOF", at ¶ 1.) Flood was validated as a member of the Aryan Brotherhood on November 7, 2002. (Dkt. 25 at ¶¶ 813.) On June 6, 2003, Flood was placed in Arizona State Prison Complex ("ASPC")Eyman, Special Management Unit ("SMU") II and remains there to the present date. (Dkt. 25 at ¶ 1.) On October 23, 2003, Flood filed a Complaint pursuant to 42 U.S.C. § 1983. (DSOF at ¶ 2.) Flood's Complaint alleged: (Count 1) he was denied due process when he was transferred to SMUII for an indefinite period of detention under the STG validation program; (Count II) the conditions of his confinement in SMUII, and the psychological and physical effects of those conditions, violate the Eighth Amendment prohibition against cruel and unusual punishment; and (Count III) his placement and continual confinement in SMUII are in retaliation for his exercise of his constitutional right against selfincrimination. (Id. at ¶ 2.) Flood seeks declaratory and injunctive relief against RESPECTFULLY SUBMITTED this 24th day of April, 2006. TERRY GODDARD Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General

Defendants. (Id.)

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Defendants and Flood both filed Motions for Summary Judgment. (DSOF at ¶ 3.) On March 31, 2006, the Court denied in part and granted in part Defendants' Motion for Summary Judgment. (DSOF at ¶ 4.) Defendants' motion was denied as to Flood's Eighth Amendment exercise claim (Count II), and was granted as to Flood's due process claim (Count I), his other Eighth Amendment claims (Count II), and his retaliation claim (Count III). (Id.) The Court further ordered Defendants have thirty (30) days to submit a motion for summary judgment as to Flood's remaining exercise claim. (Id.) II. FACTS PERTAINING TO EXERCISE CLAIM SMU II contains twelve clusters and each cluster contains six pods. (DSOF at ¶ 5.) Each pod has ten cells. (Id.) At the end of each pod is an outdoor exercise area which is twenty-three feet long, eleven feet wide, and eighteen feet high. (Id. at ¶ 6.) The walls and floor are concrete and the top of each area is covered with a steel fencing. (Id. at ¶¶ 5, 7.) The outdoor exercise area is exposed to fresh air and sunlight and the inmates can see the sky while in the exercise area. (See Dkt. 25 ¶ 25; DSOF at ¶ 7.) While an inmate can see the sky through the fencing, the sun is not directly visible from the outdoor exercise area during certain times of the year or certain times of the day. (DSOF at ¶ 7.) Only one inmate is allowed into the outdoor exercise area at a time because of security concerns. (See Dkt. 25 ¶ 25.) Thus, the inmates must use the outdoor exercise area in shifts. (Id.) A schedule is used to set the times for an inmate's outdoor exercise. (DSOF at ¶ 9.) The schedule rotates in order to ensure that each inmate has the

opportunity to receive equal exposure to the sun. (Id.) Inmates are advised of their scheduled outdoor exercise time by a monthly SMU-II newsletter distributed to all SMU-II inmates. (Id.) The exercise times vary on a day-to-day basis, however inmates are aware of their scheduled outdoor exercise times at least one week in advance. (Id.) Inmates may wear their prison-issued clothing while in the outdoor exercise area or can purchase "sweat clothing" from the commissary to wear in the outdoor area. (DSOF at

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¶ 10.) They can wear either their prison-issued sandals or canvas shoes. (Id.) They may also purchase sun block from the commissary for protection from the sun while in the outdoor exercise area. (Id. at ¶ 11.) While in the outdoor exercise area, inmates may engage in meaningful exercise to include calisthenics, running, walking or playing handball. (Id. ¶ 12.) Flood uses the recreation area regularly to walk and do

cardiovascular exercise. (See Dkt. 25 at ¶ 26.) He also exercises in his cell. (Id.) Prior to December 29, 2005, Flood was afforded a maximum of three hours per week in the outdoor exercise area. (DSOF ¶ 14.) The outdoor exercise occurred on three different days of the week and for one hour at a time. (Id.) Effective December 29, 2005, the ADC increased the hours of inmate outdoor exercise for inmates housed in Maximum custody units and inmates housed in a CDU and/or Detention Unit. (DSOF ¶ 15.) These inmates are now permitted outdoor exercise for six (6) hours each week. (Id.) The outdoor exercise periods are on different days of the week, for two hours at a time. (Id.) III. LEGAL ARGUMENT A. The Rule 56 Summary Judgment Standard is Satisfied Here.

A Court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving 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 stated herein, and Defendants are entitled to judgment as a matter of law, summary judgment is Properly granted here.

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B.

Flood Fails to State a Cruel and Unusual Punishment Claim

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 the Defendants were "deliberately indifferent" to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The test for "deliberate indifference" is a subjective one and requires an inmate to prove that the prison official knew of and disregarded an excessive risk to inmate health or safety. Id. at 837. Neither requirement is satisfied in this case.2 Flood does not satisfy the first requirement of an Eighth Amendment violation because he cannot establish that the limitations on outdoor exercise deny him "the minimal civilized measure of life's necessities" or expose him to increased violence or pain, much less unnecessary and wanton pain. See Farmer, 511 U.S. at 832. While Flood complains about his restrictions on exercise, these limitations do not offend the Eighth Amendment. Flood was permitted three hours of outdoor exercise per week when his suit commenced. He is now afforded six (6) hours per week of outdoor exercise. (DSOF at 14, 15.) Courts, including the Ninth Circuit, have generally found that five hours of recreation time per week is constitutionally sufficient. See, i.e. Spain v. Procunier, 600 F.2d, 189, 199-200; Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988); French v. Owens, 777 F.2d 1250, 1255-56 (7th Cir. 1985); Ruiz v. Estelle, 679 F.2d 1115, 1151-52 (5th Cir. 1982); Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980); Frazier v. Ward, 426 F. Supp. 1354, 1367-69 (N.D.N.Y. 1977). Other courts have approved less. See Hosna v. Groose, 80F.3d 298, 306 (8th Cir. 1996) (approving three hours per week for inmates in long-term administrative segregation unit with conditions similar to those in SMU II); Wishon v. Gammon, 978 F.2d 446, 448 (8th Cir. 1992) (forty-five minutes per week of
Flood does not mention Defendant Shearer in connection with his Eighth Amendment cruel and unusual punishment claim. (Dkt. 25, at ¶ 2.) Thus, the claim must be dismissed as to Defendant Shearer.
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outdoor exercise for inmate in protective custody unit where inmate "did not suffer any injury decline in health resulting from the limited outdoor exercise); Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (approving one hour per week). Flood cannot provide evidence that Defendants Schriro and Luna deprived him of the "`minimal civilized measure of life's necessities.'" Farmer, 511 U.S. 825, 834 (1994). In addition, Flood also does not satisfy the second requirement for an Eighth Amendment violation because he cannot establish that Defendants Schriro or Luna acted with "deliberate indifference" to an "excessive risk" to his health or safety. Flood has not alleged that the restrictions on his exercise causes "excessive harm" or that he has suffered, or will likely suffer in the future, any mental, physical or emotional injury due to the restrictions. Further he cannot establish that Defendants Schriro and Luna were

deliberately indifferent to a substantial risk of serious harm to him because there was no risk of serious harm to him. Because Flood fails to meet the objective prong and the subjective prong, Defendants are entitled to judgment as a matter of law as to the Eighth Amendment exercise claim. CONCLUSION For the above-stated reasons, the Court should grant Defendants' Second Motion for Summary Judgment as to Flood's exercise claim against Defendants and dismiss his Complaint in its entirety. RESPECTFULLY SUBMITTED this 24th day of April, 2006. TERRY GODDARD Attorney General

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

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Original and one copy filed this 24th day of April, 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/ Catherine M. Bohland__________ Catherine M. Bohland IDS04-0442/RSK:G2003-04659
#955326

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