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

1 2

ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY By: JOSEPH I. VIGIL State Bar No. 018677 [email protected] MARIA R. BRANDON State Bar No. 004249 [email protected] Deputy County Attorneys MCAO Firm No. 00032000

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 v.

CIVIL DIVISION Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206 Telephone (602) 506-8541 Attorneys for Joseph M. Arpaio and Captain Tate IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Alvin LaRue Pinkoson, Plaintiff, NO. CV03-1928-PHX-MHM (MEA) DEFENDANTS JOSEPH ARPAIO AND RON TATE'S MOTION FOR SUMMARY JUDGMENT

Joseph M. Arpaio, et al., Defendants.

Defendants, by and through undersigned counsel, hereby submit their Motion for Summary Judgment as to all counts in Plaintiff's Complaint as the Plaintiff cannot show that his housing situation at the Towers Jail in any way

deprived him of any fundamental rights. Additionally, the Plaintiff cannot show Case 2:03-cv-01928-ROS-MEA Document 41 1 Filed 01/04/2007 Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

that he suffered any injuries as a result of this alleged overcrowding. As such, Plaintiff's claim that the "totality of the conditions" at the jail must be dismissed. This Motion is supported by the following Memorandum of Points and Authorities and the accompanying Separate Statement of Facts. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND This case stems from the Plaintiff's time he spent in the custody of the Maricopa County Sheriff's Office from August 6, 2003 through December 31, 2003. (Defendants' Statement of Facts "DSOF" at ¶ 2.) During this time the Plaintiff was being housed in the Towers Jail, Floor 1, House 1, pod A. (DSOF at ¶ 3.) At the time the Plaintiff was in jail, the inmates were housed in cells with three inmates per cell. (DSOF at ¶ 4.) A. Plaintiff's Housing and Classification.

The Plaintiff was found guilty of two counts of burglary in the third degree on July 31, 2003. (DSOF at ¶ 1.) Plaintiff was booked into jail on August 6, 2003 pursuant to a bench warrant that was issued when he failed to show up for his trial. Once arrested, the Plaintiff was housed in the Towers Jail ­ Floor 1, House 1 - in a cell with two other inmates from August 8, 2003 to December 30, 2003. (DSOF at ¶ 3.) The cells were "triple" bunked with the third bunk

permanently installed. By having triple bunks, there was enough space in the

cells for the inmates to conduct their daily business. (DSOF at ¶ 4.) In addition Case 2:03-cv-01928-ROS-MEA Document 41 2 Filed 01/04/2007 Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

to the cell space, the inmates had access to the day room for approximately 16 to 18 hours a day. (DSOF at ¶ 4.) The Towers jail was allowed to have a population of 1080 inmates. This figure allows for triple bunking. Since the cells were triple bunked the jail has been inspected by the Fire Marshall and the Maricopa County Health Inspector and neither one of them has issued any citations or complaints about the housing. (DSOF at ¶ 5.) B. Religious Services

During the time the Plaintiff was being housed at the Towers jail he claimed he was Jewish and as a result he needed to be provided a Kosher meal. Throughout his stay he was given a Kosher meal in conjunction with his religious beliefs. (DSOF at ¶ 8.) In addition, he was allowed to attend religious services. To have a formal Jewish service, there needs to be a "minyan" or quorum of ten (10) adults for communal worship. (DSOF at ¶ 9.) Because there are so few Jewish inmates in jail, it is often difficult to have a minyan. Id. As an alternative, an inmate who is Jewish can receive Jewish religious services by requesting, via an inmate request form, to pray or worship with his rabbi or a representative of his temple. Additionally, the inmate may attend any other (DSOF at ¶ 10.) During

service, including a non-denominational service.

October 2003 church services were offered on at least 11 days, with the highest number of inmates participating being 10 and the lowest 3. (DSOF at ¶ 12.) Plaintiff could have attended any of these services. ...
Document 41 3 Filed 01/04/2007 Page 3 of 15

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2003.

The inmate may also request to see the Chaplain or pray on his own. There is no proof that Mr. Pinkoson ever submitted an inmate request form asking to receive a visit from his rabbi or that he be allowed to see the Chaplain. B. Recreation

Recreation in the jail is based on a number of factors ranging from inclement weather, flooded recreation yards, security issues, staffing,

construction or maintenance of recreation yards, etc. (DSOF at ¶ 15.) If these factors are not present inmates are offered recreation. However, an inmate does not have to participate in recreation. Inmates may also exercise in their cells (e.g. do sit ups, push ups, etc.) or in the day room as long as they are not in someone's way. (DSOF at ¶ 16.) C. Slip and Fall in Shower

Plaintiff claims he was assaulted by unidentified inmates on November 23, However, there is no evidence that any assault actually took place.

Rather, the evidence shows that the Plaintiff actually reported that he slipped and fell while taking a shower. (DSOF ¶¶ 17-18.) He not only told jail staff that he slipped and fell, but he also told the doctors at the hospital that he slipped and fell. Id. MCSO conducted an investigation as is routine, to make sure there was no assault and their investigation found no evidence of an inmate on inmate assault. (DSOF at ¶¶ 19-20.) ... ...
Document 41 4 Filed 01/04/2007 Page 4 of 15

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

D.

Plaintiff's Alleged Injuries

Plaintiff claims that he was injured both physically, because of the assault, and emotionally and mentally because of the "totality of the conditions" of the jail. However, there is no evidence that the injuries were in any way caused by overcrowding or that the Defendants in any way caused any injury. It is true that the Plaintiff was injured as a result of slipping in the shower on November 23, 2003. However, this was not the Defendants fault. Also, as Dr. Wilcox sets forth in his affidavit, the Defendant was booked into the jail with a number of medical conditions being found. He admitted to abusing crack cocaine, he had a history of violent behavior and psychiatric problems, and was found to have chronic arthritis. (DSOF at ¶¶ 24-25.) The psychiatric records do not indicate that his mental and emotional problems were a result of his incarceration. (DSOF at ¶ 26.) Rather, there is proof that they were pre-existing problems. (DSOF at ¶ 23.) There is proof in the medical records that the Plaintiff may have gained 14 pounds while in the Towers jail. (DSOF at ¶ 27.) However, there is nothing to indicate that this gain of weight was in any way unhealthy. On or about

September 16, 2003 the Plaintiff weighed 156 pounds and on December 26, 2003 he weighed 170 pounds. He is six feet tall. (DSOF at ¶ 27.) II. SUMMARY JUDGMENT STANDARD To obtain summary judgment, the moving party must demonstrate there is

no genuine issue as to any material fact and the moving party is entitled to Case 2:03-cv-01928-ROS-MEA Document 41 5 Filed 01/04/2007 Page 5 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14

judgment as a matter of law. Fed. R. Civ. P. 56(c). The materiality of a fact is determined according to the substantive law that governs the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact creates a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party may meet the burden by showing there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In determining whether summary judgment is appropriate, the court should view the facts and inferences from the facts in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Under these standards Defendants are entitled to summary judgment as a matter of law. III. LEGAL ARGUMENT A. Defendants Arpaio and Tate are Not Liable in their Individual Capacities. Supervisory

Joseph Arpaio is the elected Maricopa County Sheriff. 15

officials may not be held liable under 42 U.S.C. § 1983 on the basis of 16 respondeat superior; they may be held liable only for their own wrongful 17 conduct. Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989); McGrath v. 18 Scott, 250 F.Supp.2d 1218, 1222 (D.Ariz. 2003). Liability may be imposed on 19 an individual defendant pursuant to § 1983 only if the plaintiff can show that the 20 defendant proximately caused the deprivation of a right, privilege, or immunity 21 protected by the United States Constitution or federal law. See Leer v. Murphy, 22
Case 2:03-cv-01928-ROS-MEA Document 41 6 Filed 01/04/2007 Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

844 F.2d 628, 633 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which the plaintiff complains." Leer, 844 F.2d at 633. In this case, Plaintiff makes no allegation in his Complaint, nor can he present any evidence, that Defendant Arpaio and/or Tate took direct action to cause any deprivation of Plaintiff's constitutional rights. Defendants are entitled to summary judgment as to the claim against him in his individual capacity. B. Plaintiff's Constitutional Rights Were Not Violated.

Plaintiff was convicted of two counts of burglary in the third degree on July 31, 2003. As such, when he was booked into jail on August 7, 2003 he was booked into jail as a convicted felon, not a pretrial detainee. The Eighth Amendment prohibits the infliction of cruel and unusual punishment on those convicted of crimes. (1976). Estelle v. Gamble, 429 U.S. 97

However, the Eighth Amendment does not require that prisons be

comfortable or provide every amenity that one might find desirable. Rhodes v. Chapman, 452 U.S. 337, 345 (1981). Only those deprivations denying the

minimal civilized measure of life's necessities are sufficiently grave to form the basis of an eighth amendment violation. Id. An institution's obligation under the

eighth amendment is satisfied if it furnishes sentenced prisoners with adequate Case 2:03-cv-01928-ROS-MEA Document 41 7 Filed 01/04/2007 Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

food, clothing, shelter, sanitation, medical care, and personal safety. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) quoting Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981). Extreme deprivations are required to make out a conditions-of-confinement claim. Hudson v. McMillan, 503 U.S. 1, 9 (1992). Additionally, in evaluating an Eighth Amendment claim, each condition is viewed individually, not the totality of the circumstances. Hoptowit, 682 F.2d at 124647. However, some conditions may establish an Eighth Amendment claim in combination with others but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need. Wilson v. Seiter, 501 U.S. 294, (1991). To prevail on an unconstitutional conditions of his confinement claim the Plaintiff must show that the defendants were deliberately indifferent. Id. In other words, the official had to know of and disregard an excessive risk to an inmates health or safety. The official must both be aware of facts from which the

inference can be drawn and he must draw the inference. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 1. No Eighth Amendment violation.

Plaintiff was furnished with adequate food, clothing, shelter, sanitation, medical care, and personal safety. Although the crowded conditions may have resulted in an inconvenience or been uncomfortable, they do not rise to the level of violating the Eighth Amendment. There is no evidence presented by the

Plaintiff establishing that the triple bunking in a two man cell is a constitutional Case 2:03-cv-01928-ROS-MEA Document 41 8 Filed 01/04/2007 Page 8 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

violation. As a matter of fact, the Supreme Court has held that overcrowding itself is not sufficiently serious to establish a Constitutional violation. See

Rhodes v. Chapman, 425 U.S. 337, 348-49 (1981)(having two inmates in a cell designed for one does not, without more, violate the Eighth Amendment). Just as the housing of two inmates in a cell designed for one is not a Constitutional violation, the housing of three inmates in a cell that was originally suppose to house two is not a constitutional violation. Plaintiff claims that he was assaulted because of the overcrowded conditions. However, the facts simply do not prove this to be true. First, the facts suggest that it was a slip and fall that caused his injuries, not the alleged assault. This is what the Plaintiff told jail officials and the doctors. (DSOF at ¶¶ 17-18.) Second, even if there was an assault, there is no evidence linking the assault to the jail being overcrowded. In any event, Court's have held that a single incident of violence does not establish pervasive risk of harm necessary for a constitutional violation. Hobbs v. Evans, 924 F.2d 774, 775 (8th Cir. 1991). As for his claims that overcrowding did not allow him to receive adequate religious services or recreation because of the overcrowding, there simply is no proof that overcrowding played a part in his not attending enough church services, being able to pray or getting exercise. It is clear that the option to have church services was available to the Plaintiff. However, there is no evidence that he availed himself to these options. He did not submit inmate request forms ...
Document 41 9 Filed 01/04/2007 Page 9 of 15

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

asking to see a rabbi or to speak to the chaplain. (DSOF at ¶ 11.) 1 Additionally, had he wanted he could have exercised at any time, there were no restrictions. Clearly there was no violation of the Plaintiff's Eighth Amendment, or any other, constitutional rights. 2. No deliberate indifference.

As stated above, if there was a Constitutional violation, then the Plaintiff muse show that the Defendants were deliberately indifferent to the Plaintiff's health and safety. There is no such evidence of deliberate indifference. First, there is no evidence that placing three inmates in a cell originally meant to house two inmates created an excessive risk to inmate safety or that they disregarded any possible risks. Any crowding of the jails was a result of a burgeoning population that was out of the control of the Defendants. The

Defendants are required by law to take into custody those inmates referred to them by the Courts. See A.R.S. §§ 11-441(5) and 31-10. Sheriff Arpaio was taking steps to meet the demand by constructing new jails new jails. These jails were being built at the time the Plaintiff was in jail. (DSOF at ¶ 6.) The jail may have been at capacity at the time, but there was nothing that placed the Plaintiff's health and safety at risk. Plaintiff has not and cannot provide any evidence to support that Defendant Arpaio promulgated a policy or custom of overcrowding in the jail or
1

22

It is interesting to note that prior to being booked into jail the Plaintiff had not attended any church services while not being incarcerated nor had he attended any services while in prison prior to his time in Maricopa County Jail. (DSOF at ¶ 13.)

Case 2:03-cv-01928-ROS-MEA

Document 41 10 Filed 01/04/2007

Page 10 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

that there was a policy which effectively denied him access to religious services or prayer or even to recreation. As has been stated the Plaintiff had access to these activities while in jail. Additionally, there is no evidence that the Plaintiff was at all harmed beyond his mere unsupported averments that he was harmed. There is no medical evidence of any physical harm or any emotional or mental harm. Rather, the records show that the Plaintiff's mental and emotional

problems were pre-existing and they were not caused by any actions of the Defendants. (DSOF at ¶¶ 23-25.) Also, there is no evidence linking the physical injuries being claimed by the Plaintiff to any overcrowding or any action or inaction of the Defendants. Based on the foregoing, it is clear that there are no genuine issue of material fact and the Defendants are entitled to summary judgment. C. Plaintiff was not Harmed by Loss of his Legal Materials.

It appears that the Plaintiff is also claiming that he was harmed by the loss of his legal materials. However, as the Plaintiff has testified his criminal case that he was handling was ultimately dismissed and as such, that case was not harmed by the loss of the legal materials. (DSOF at ¶ 22.) Also, he was able to proceed with his civil cases and even though they may have been delayed for a while. (DSOF at ¶ 21.) Because there is not harm, any claims relating to the loss of legal materials should be dismissed. ... ...
Document 41 11 Filed 01/04/2007 Page 11 of 15

Case 2:03-cv-01928-ROS-MEA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

D.

Plaintiffs Claim for Compensatory Damages is Barred.

Plaintiff's claim for compensatory damages is barred because the Plaintiff fails to establish that he has any physical injury that is a result of the actions of the Defendants. The Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e(e), provides that, "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." This provision of the PLRA requires a prior showing of a physical injury that need not be significant but must be more than de minimis. Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002). In Oliver, the plaintiff claimed that he suffered back and leg pain from sitting and sleeping on benches and the floor, that he was assaulted by another prisoner and was injured, and that he developed a painful canker sore. Id. at 625-26. The Ninth Circuit Court of Appeals found these alleged injuries to be de minimis, and upheld the trial court's dismissal of the claims for emotional injury on the basis of § 1997e(e). The Plaintiff claims that as a result of the

overcrowding in the jail he was assaulted by two inmates and as a result he suffered significant physical injuries. However, the Plaintiff cannot provide any evidence that shows that he was assaulted as a result of any overcrowding in the jails or because of any actions or inactions of the Defendants. Rather, the evidence shows that the Plaintiff slipped and fell in the shower and that is how

Case 2:03-cv-01928-ROS-MEA

Document 41 12 Filed 01/04/2007

Page 12 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

he received his physical injuries. There is no claim that the slip and fall was a result of any constitutional violation. That leaves the Plaintiff with what he has described as "serious" mental and emotional suffering, "wretched" psychological stress and a vague reference to physical deterioration. (Plaintiff's Complaint, page 4, ¶ 4.) At best the

"physical" deterioration mentioned by the Plaintiff is de minimus, just as the injuries to the plaintiff in Oliver were de minimis. In reality, the Plaintiff has suffered no physical injuries and as such, his claim for compensatory damages is barred. E. Plaintiff Cannot Recover Punitive Damages. Plaintiff may not recover

Plaintiff seeks to recover punitive damages.

punitive damages against Defendants Arpaio and Tate in their official capacity. Municipalities are immune from punitive damages under § 1983. Newport v. Fact Concerts, Inc., 453 U.S. 257 (1981). City of

A suit against a

governmental officer in his official capacity is essentially a suit against the governmental entity itself. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Thus, Defendants Arpaio and Tate, in their official capacities, are also immune from punitive damages. See Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996). To recover punitive damages against Defendants Arpaio and Tate in their individual capacities, Plaintiff must show that Defendants' conduct was

motivated by an evil motive or intent, or involved reckless or callous indifference Case 2:03-cv-01928-ROS-MEA Document 41 13 Filed 01/04/2007 Page 13 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

to Plaintiff's federal constitutional rights.

See Smith v. Wade, 461 U.S. 30

(1983). Plaintiff cannot present any evidence to support that the Defendants acted in an individual capacity or that their actions were motivated by an evil motive or intent, or acted with involved reckless or callous indifference. The undisputed evidence shows that the Defendants are in charge of taking into the jail all persons placed there by law. They have no control over the population and must make accommodations for all pretrial and convicted inmates. New jails were being built to accommodate the expanding inmate population and the needs of the Plaintiff were being met to the best of the Defendants' ability. There simply is no evidence of evil intent or motive and as such, the Defendants are entitled to summary judgment as to the issue of punitive damages. IV. CONCLUSION For the foregoing reasons, Defendant requests this Court grant summary judgment for Defendant on all claims. There is no evidence that there was a Constitutional violation, and even if there was an Eighth Amendment violation, there is no proof that the Defendants were deliberately indifferent. Based on the foregoing, Defendants respectfully request that the Court grant their Motion for Summary Judgment and dismiss all of the Plaintiff's claims. ... ... ... ...
Document 41 14 Filed 01/04/2007 Page 14 of 15

Case 2:03-cv-01928-ROS-MEA

1 2 3 4

RESPECTFULLY SUBMITTED this

4th

day of January 2007.

ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

BY: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 s/Michele Haney 20
CJ05-407

s/Joseph I. Vigil JOSEPH I. VIGIL MARIA R. BRANDON Deputy County Attorney Attorneys for Joseph M. Arpaio and Captain Tate

ORIGINAL of the foregoing E-FILED and copies MAILED this _4th_ day of January 2007 to: Honorable Mary H. Murguia United States District Court Judge Sandra Day O'Connor U.S. Courthouse, Suite 525 401 West Washington Street, SPC 53 Phoenix, AZ 85003 Honorable Mark E. Aspey United States Magistrate Judge 123 North San Francisco Street, Ste 200 Flagstaff, AZ 86001 Alvin LaRue Pinkoson #127807 ASPC-Tucson Manzanita Unit PO Box 24401 Tucson, Arizona 85734 Plaintiff Pro Per

21 22

S:\COUNSEL\Civil\Matters\CJ\2005\Pinkoson CJ05-407\Pleadings\MSJ-010307.doc

Case 2:03-cv-01928-ROS-MEA

Document 41 15 Filed 01/04/2007

Page 15 of 15