Free Response in Opposition to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General COLLEEN M. AUER Assistant Attorney General State Bar No. 014637 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7698 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. No: CV03-2050-PHX-DGC (VAM) OPPOSITION TO PLAINTIFF'S CROSSMOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Defendants1 submit this opposition to Plaintiff's cross-motion for summary judgment2 and reply in support of their motion for summary judgment. Summary judgment on Flood's complaint is appropriate and warranted here because: (1) Flood fails to state a due process claim as a matter of law as it is undisputed that he receives annual reclassification reviews for which he is provided notice, an opportunity to present evidence, a written explanation of the reasons for his classification, an opportunity to appeal and there is "some evidence in the record" to support his placement in SMUII; (2) Flood fails to state a cruel and unusual punishment claim as a matter of law because he was not denied any basic necessity, indefinite
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Dora Schriro, Conrad Luna and Barbara Shearer.

Plaintiff's pleading entitled "Plaintiff's Motion for Summary Judgment" is actually a cross-motion for summary judgment as Defendants previously moved for summary judgment on June 30, 2005. Document 30 Filed 08/18/2005 Page 1 of 12

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confinement alone does not violate the constitution, and the confinement conditions (including exercise restrictions and dimmed cell lighting at night) are consistent with Constitutional requirements and serve legitimate security interests; and (3) Flood fails to state a retaliation claim as a matter of law because the reclassification hearings do not implicate Flood's Fifth Amendment privilege and SMUII confinement advances legitimate penological interests. This Opposition and Reply is supported by the attached Memorandum of Points and Authorities and Defendants' Response to Plaintiff's Statement of Facts in Support of Plaintiff's Motion for Summary Judgment filed herewith. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Flood is an inmate in the custody of the Arizona Department of Corrections ("ADC") housed in Special Management Unit II ("SMUII"). [DSOF at ¶ 1; PSOF at ¶¶ 1, 4.] SMUII is a Supermax3 prison in Florence, Arizona reserved for death row inmates, inmates under investigation for protective custody, inmates with high classification scores, and validated members of Security Threat Groups ("STGs"), also known as prison gangs. Flood was validated as a member of the STG, Aryan Brotherhood, on November 7, 2002 and confined to SMUII on June 6, 2003. [DSOF at ¶¶ 8, 17; PSOF at ¶1, 4.] Flood sues Defendants for alleged Due Process and Eighth Amendment violations in his continued confinement in SMUII. [DSOF at ¶ 2.] He seeks declaratory and injunctive relief from this Court that would, inter alia, enable him to behave his way out of SMUII and back into general population without having to renounce gang membership.4
The National Institute of Corrections defines a Supermax prison as, "[a] freestanding facility, or a distinct unit within a freestanding facility, that provides for the management and secure control of inmates who have been officially designated as exhibiting violent or seriously disruptive behavior while incarcerated. Such inmates have been determined to be a threat to safety and security in traditional high-security facilities and their behavior can be controlled only by separation, restricted movement, and limited access to staff and other inmates." Austin v. Wilkinson, 189 F.Supp. 2d 719, 722 n.2 (N.D. Ohio, 2002) (quoting Chase Riveland, Supermax Prisons: Overview and General Considerations 3 (1999)). 4 Plaintiff's Cross-MSJ at 5-6, 11. Document 30 Filed 08/18/2005 Page 2 of 12
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II. A.

ARGUMENT Flood Fails to State A Procedural Due Process Claim As a Matter of Law. Flood does not challenge the process he received prior to his STG validation and

transfer to SMUII.5 Rather, he argues that he has been denied due process after SMUII confinement because ADC's periodic reclassification reviews do not screen for "an actual act of misconduct," and punish him for remaining silent and not renouncing gang membership.6 (1) Flood Received Any Process Due Before SMUII Confinement. Flood has testified that he received all of the process due him under Wilkinson v. Austin,7 prior to transfer SMUII. [DSOF at ¶¶ 9-15.] In this recently decided case, the Supreme Court specifically addressed the issue of what, if any, process was due an inmate prior to permanent placement in a Supermax facility like SMUII. After finding that the combined conditions of confinement in Ohio's Supermax facility were sufficiently atypical to give rise to a state-created liberty interest, the Court concluded that Ohio's procedures which provided notice to the inmate of the factual basis leading to consideration for Supermax placement, a fair opportunity for rebuttal, a statement of the reasons for placement and a review process for any placement decision, were sufficient to safeguard the inmate's interests. Id. at 2394-98. ADC's STG policy provides these same procedures prior to placement in SMUII. [DSOF ¶¶ 4-6, 8-16.] Further, the Supreme Court made clear that where, as here, the State's interest implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442

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Id. at 6 ("[T]his action does not challenge the initial validation decisions."). Id. at 3-4, 6. 125 S.Ct. 2384 (2005).

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U.S. 1 (1979), and Hewitt v. Helms, 459 U.S. 460 (1983), provide the appropriate [procedural due process] model. Wilkinson, 125 S.Ct. at 2397-98. Greenholtz requires that inmates being considered for release on parole have the opportunity to be heard and notice of any adverse decision. 442 U.S. at 16. Hewitt requires that inmates being considered for transfer to administrative segregation receive some notice of charges and an opportunity to be heard. 459 U.S. at 473-76. ADC's STG policy provides the process due under both Greenholtz and Hewitt. And Flood admits that he received the process due under both Greenholtz and Hewitt. [DSOF at ¶¶ 9-16.]. Thus, assuming arguendo SMUII confinement conditions are sufficiently atypical to give rise to a state-created liberty interest, ADC's STG policy afforded Flood all of the procedural due process protections required by law prior to validation and SMUII confinement. Flood's reliance on the visiting judge's decision in Koch v. Lewis, 216 F.Supp.2d 994, 997-98 (D. Ariz. 2001), vacated as moot, 399 F.3d 1099 (9th Cir. 2005) to argue otherwise is improper.8 Koch was vacated and therefore is of no precedential value and, in any event, Koch does not represent the law in the Ninth Circuit or elsewhere on the process required prior to Supermax placement. Rather, the Ninth Circuit's decision in Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003), which post-dates Koch and also involved indeterminate confinement of an inmate based on gang affiliation, serves as binding precedent on this Court. There, prison officials validated the plaintiff as a gang member based on a report from the local Sheriff's Department, a probation report which stated that the co-defendant in the plaintiff's trial was a member of the same gang, and a statement from a prison informant. Id. at 1287-88. The Ninth Circuit noted that "any one of these three pieces of evidence would have sufficed to support the validation." Id. at 1288.

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Plaintiff's Cross-MSJ at 3, 5-6.
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The decision to validate Flood was admittedly supported by "some evidence in the record."9 The "some evidence" standard is "minimally stringent."10 "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board."11 Part of the reason for this low standard is "the wide-ranging deference [courts must accord] to prison administrators `in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.'"12 This low standard is more than met in this case. In validating Flood, the STG Hearing Committee relied on the following evidence: (1) two sheets of paper, recorded and signed for by inmate Flood on a Seized Property Receipt, containing names and ADC numbers of eighteen validated and three suspected members of the Aryan Brotherhood; (2) a letter, recorded and signed for by inmate Flood on a Seized Property Receipt, believed to have been authored by a validated Aryan Brotherhood member referencing other suspected and validated Aryan Brotherhood members; and (3) an Aryan Brotherhood membership list recovered from a validated Aryan Brotherhood member's address book that lists Flood's name and ADC number along with the names and ADC numbers of approximately 135 inmates, 113 of which are suspected or validated Aryan Brotherhood members. [DSOF at ¶ 14.] Thus, the decision to validate Flood was supported by "some evidence in the record." See Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003) (any one of the three pieces of evidence relied upon would have sufficed to support inmate's validation as a gang member). And district courts, both before and after Bruce, consistently grant prison officials' motions

Superintendent Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). See DSOF at ¶¶ 10, 14-15.
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Cato, 824 F.2d at 705. Id. (quoting Superintendent, 472 U.S. at 455-56) (emphasis in Cato).

Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
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for summary judgment where, as here, the officials point to evidence suggesting that the inmate is a member of a gang. See, e.g., Wolff v. Hood, 242 F.Supp. 2d 811 (N.D. Cal. 2002); Toscano v. Gomez, 1996 WL 571483 (N.D. Cal. Sept. 30, 1996), aff'd, 122 F.3d 1074 (9th Cir. 1997); Harrison v. McGrath, 2004 WL 1465698 (N.D. Cal. June 21, 2004). (2) Flood Received The Process Due After SMUII Confinement. ADC's reclassification reviews afford similar process to the original validation hearing.13 Prior to each annual re-classification review, the inmate receives written notice, has an opportunity to present evidence, is informed of his right to remain silent, receives a written explanation of the reasons for his classification, and has a right to appeal the classification decision. [DSOF at ¶ 18; Crabtree Aff.] Nothing further is required to comport with procedural due process. See generally Wilkinson, 125 S.Ct. 2384 (2005). Flood does not dispute that the decision to validate him as a member of the Aryan Brotherhood was supported by "some evidence in the record."14 He claims, however, that this "some evidence" standard requires proof of an "actual act of misconduct."15 His assertion is legally unsupported. See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Likewise, Flood's assertion that a "meaningful periodic review" "reviews for an act of misconduct" is legally unsupported.16 The U.S. Supreme Court has expressly rejected a requirement of "additional evidence or statements" to justify continued segregated confinement. See Hewitt, 459 U.S. at 477 n. 9 (emphasis supplied) ("The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner ­ which will have been ascertained when determining to confine the inmate to administrative
Inmates receive a reclassification review every 180 days. The Institutional Classification Committee ("ICC") examines ten Correctional Classification Profile ("CCP") factors during these reviews. When no CCP changes are required because there has been no change in the inmate's record, the inmate need only be present at the ICC hearing once a year. And the mid-year review for these inmates is then conducted by unit classification officers. DSOF at ¶ 18; see also generally Crabtree Aff.. 14 Defendants' MSJ at 10-11. 15 Plaintiff's Cross-MSJ at 5-6. 16 Id. at 4, 6. Document 30 Filed 08/18/2005 Page 6 of 12
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segregation ­ and on the officials' general knowledge of prison conditions and tensions, which are singularly unsuited for `proof' in any highly structured manner"); see also Madrid v. Gomez, 889 F.Supp. 1146, 1277-79 (N.D. Cal. 1995) (rejecting argument that at some point there is no longer "some evidence" to retain an inmate in the SHU, despite the absence of debriefing, where the inmate has not engaged in any prison gang activity and there is no new evidence confirming the inmate's continued association with the prison gang). And, as the Madrid Court made clear, requiring "additional evidence" to justify continued segregated confinement would render the STG policy meaningless and undermine the legitimate penological goals of safety, security and institutional order served by the policy. This is especially true since the lack of "misconduct" while in SMUII is not particularly probative of anything given that the very purpose of SMUII confinement is to prevent gang misconduct. See Madrid, 889 F.Supp. at 1278 ("We also note that opportunities for [gang] activity in the SHU are extremely limited. . ."). (3) Flood's Re-Classification Hearings Do Not Offend His Fifth Amendment Right to Avoid Self-Incrimination. Flood argues that because the only way for him to extricate himself from SMUII confinement is to renounce gang membership and debrief to prison officials, he is essentially being compelled to incriminate himself.17 The privilege against self-incrimination, however, is inapplicable in this context. It is well-settled that the "privilege applies when a defendant is compelled to be a witness against himself in his own criminal prosecution or when he is called to testify in any type of proceeding to answer questions which might serve to incriminate him in any future prosecution." United States v. Segal, 549 F.2d 1293, 1299 (9th Cir. 1977) (citing Lefkowitz v. Turely, 414 U.S. 70, 77 (1973)). ADC's STG policy, however, makes clear that none of the information obtained during debriefing is used against the debriefer in criminal proceedings. [DSOF at ¶ 24; see also DO 806.06 (DO 806 is Attachment A to the Affidavit of

17

Id. at 4.
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Todd Gerrish in Support of Defendants' Motion for Summary Judgment).] Flood does not submit any evidence to the contrary. * * *

Flood has been afforded any process due before and after SMUII confinement. He continues to be classified as a 5/5 inmate and confined to SMUII because of the security risk he poses to the institution as a validated Aryan Brotherhood member with four pieces of evidence linking him to this group, and because he has chosen not to debrief. [DSOF at ¶¶ 2023.] B. Flood Fails to State a Cruel and Unusual Punishment Claims as a Matter of Law. Flood does not dispute that Defendant Shearer (who is not referenced in his Eighth Amendment claim) is properly dismissed from that claim.18 Flood has not satisfied the initial objective component of the Eighth Amendment analysis. Specifically, Flood has offered no evidence that Defendants have denied him the "minimal civilized measure of life's necessities." To the contrary, he admits that he is afforded the basic necessities including food, clothing, shelter, hygiene, sanitation facilities and necessary medical attention. [DSOF at ¶¶ 27-32, 41.] Rather, he argues that three hours per week of exercise in an enclosed recreation area, 24-hour cell lighting (dimmed at night), a restricted diet and indefinite confinement deny him the "minimal civilized measure of life's necessities."19 Restrictions on exercise do not offend the Eighth Amendment absent proof of muscle atrophy or a threat to the inmate's health, not shown here.20 Flood does not dispute that he
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See Defendants' MSJ at 12. Plaintiff's Cross-MSJ at 7-10. See, e.g., Wishon v. Gammon, 978 F.2d 446, 446-49 (8th Cir. 1992) (out of cell recreation time of 45 minutes per week did not violate the Eighth Amendment); Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996), cert denied, 519 U.S. 860 (1996) ("Requiring an inmate to exercise in an enclosed area is not itself a per se violation of the Eighth Amendment . . . nor does a limitation of three hours per week of out-of-cell exercise necessarily violate the Constitution"); Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that one hour per week of outdoor exercise does not violate the Eighth Amendment). Document 30 Filed 08/18/2005 Page 8 of 12

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gets three hours of exercise per week. [DSOF at ¶¶ 25-26.] He does not dispute that the exercise area he uses is exposed to fresh air and sunlight. [Id. at ¶¶ 27-32, 41.] While he complains that an inmate does not get "direct sunlight,"21 this is misleading as the sunlight penetrates the steel mesh top of the recreation area and shines into that area throughout the day. Dimmed cell lighting in the evening hours does not offend the Eighth Amendment.22 And Flood has not offered a scintilla of evidence that he has suffered any health consequence as a result of dimmed cell lighting at night. Flood's restricted diet does not offend the Eighth Amendment. Flood's 2800 calorie, nutritionist developed, balanced diet, is well within Correctional Industry Standards. [DSOF at ¶ 31]. Flood receives three meals a day, five days a week and brunch and dinner on the weekends. [Id.] Moreover, during the month of December, Flood can also purchase food items from the inmate store including, dried beans, tortillas, Christmas cookies, different kinds of pastries and candy. [Id. at 32.] Flood relies on caselaw concerning quality not quantity of food23 and there is no evidence that STG-validated inmates do not receive the same quality of food as general population inmates. Further, Flood has offered no evidence that, as a result of his diet, he has suffered any health problems. Indefinite confinement does not offend the Eighth Amendment. Hutto v. Finney, 437 U.S. 678, 685-87 (1978) ("Even an indeterminate assignment to punitive isolation does not without more constitute cruel and unusual punishment" unless an inmate is segregated in the midst of indecent, unconstitutional conditions); Sweet v. S.C. Dept. of Corr., 529 F.2d 854, 861 (4th Cir. 1975) (noting that "isolation from companionship, restriction on intellectual stimulation[,] and prolonged inactivity, inescapable accompaniments of segregated
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Plaintiff's Cross-MSJ at 9. See, e.g., Eccleston v. State, No. 03-6148-KI, 2004 WL 2538304, at *5 (D. Or. Nov. 9, Plaintiff's Cross-MSJ at 9.

2004).
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confinement, will not render [that] confinement unconstitutional absent other illegitimate deprivations"). And Flood's arguments that SMUII confinement is improperly intended to "chastise or deter" in violation of the Eighth Amendment is based on hearsay deposition testimony from former Director Stewart in another matter that is not admissible in this case or attributable to these Defendants.24 The only evidence before this Court is that the purpose of SMUII confinement for STG-validated inmates is to minimize the threat that inmate gang activity poses to the safe, secure and efficient operation of Arizona's prisons. [DSOF at ¶ 3.] Flood likewise does not satisfy the subjective component of the Eighth Amendment analysis which requires him to show that Defendants knew of, and disregarded, an "excessive risk" to his health or safety. While Flood argues in general terms and without any evidentiary support, that Defendants Schriro and Luna are aware that SMUII isolation conditions will cause harm over long periods,25 he has not shown that confinement causes "excessive harm," that he personally suffered a mental, physical, or emotional injury as a result of SMUII confinement conditions, that he made Defendants aware of any excessive physical, mental or emotional injury or that Defendants consciously disregarded any excessive physical, mental or emotional injury. Prison officials who do not know of a risk, who do not know of the seriousness of the risk, or who act reasonably in response to a risk cannot be held liable for cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Meanwhile, Defendants have presented evidence that Flood was confined to SMUII for security and safety reasons. [DSOF at ¶¶ 3-6.] He remains in SMUII because he has refused to renounce gang membership and debrief and therefore poses the same security threat to the prison. [Id. at ¶ 20-22.] The security measures in place in SMUII are necessary for the safety and security of inmates and staff. [Id. at ¶¶ 25, 38.] The exercise limitations are necessary

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Id. at 8. Id. at 7-8.

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because ten inmates share one recreation area and must exercise alone in shifts, and one officer is responsible for supervising inmate exercise and handling all other aspects of inmate daily life. [Id. at ¶¶ 25, 43.] Finally, dimmed cell lighting in the evening is necessary to permit health, welfare and security checks. [Id. at ¶ 38.] Because Flood has not established that he was denied the "minimal civilized measure of life's necessities" or that Defendants Schriro and Luna knew of, and disregarded, an "excessive risk" to his health or safety, he fails to state an Eighth Amendment cruel and unusual punishment claim as a matter of law. C. Flood Fails to State A Retaliation Claim as a Matter of Law. Flood's retaliation claim is premised on the constitutional right against selfincrimination. However, neither the classification hearings nor the STG validation hearing implicate Flood's Fifth Amendment privilege against self-incrimination as ADC's STG policy states that "the purpose of debriefing is not to obtain incriminating criminal information or evidence against the [STG] member." [Id. at ¶ 24.] Flood does not submit any evidence otherwise. Further, Flood's SMUII confinement serves the legitimate penological goals of safety, security and orderly operation of the institution. [Id. at ¶ 3.] Accordingly, his retaliation claim fails as a matter of law. III. CONCLUSION For the reasons stated herein and in Defendants' Motion for Summary Judgment, the Court should deny Plaintiff's Cross-Motion for summary judgment and grant Defendants' Motion for Summary Judgment dismissing Flood's claims against Defendants in their entirety. RESPECTFULLY SUBMITTED this 18th day of August, 2005. TERRY GODDARD Attorney General s/ Colleen M. Auer Colleen M. Auer Assistant Attorney General Attorneys for Defendants

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Copy mailed the same date to: Ronald Flood, #067127 ASPC-Eyman-SMU II Post Office Box 3400 Florence, AZ 85232 s/ Colleen M. Auer Colleen M. Auer IDS04-0442/RSK:G2003-04659
#919488

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