Free Motion to Dismiss Case - District Court of Arizona - Arizona

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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

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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 ARPAIO AND TATES MOTION TO DISMISS

Joseph M. Arpaio, et al., Defendant. Defendants, Arpaio and Tate, by and through undersigned counsel,

19 hereby submit their Motion to Dismiss Plaintiff's claims of pertaining to not being 20 allowed to have recreation and no access to religious services because Plaintiff 21 has failed to exhaust his administrative remedies as required under the Prison 22
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Litigation Reform Act ("PLRA"), 42 U.S.C. §1997e(a). This motion is supported by the following Memorandum of Points and Authorities and attached affidavit. 1 MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND A. Plaintiff's Complaint. Plaintiff filed this 42 U.S.C §1983 Civil Rights suit, First Amended Complaint, on June 28, 2004. The Defendants filed their Answer on November 11, 2005. Plaintiff's Complaint claims that as a result of the "Totality of the Circumstances" the Defendants have violated his 8th Amendment Rights and that they were deliberately indifferent toward his health and safety. Specifically, Plaintiff claims that the jail was overcrowded and as a result he was not allowed recreation, that he was kept from religious services, he was assaulted and that his legal materials were taken from him. Plaintiff claims that as a result he was injured both physically and emotionally. B. MCSO Administrative Process.

The Maricopa County Sheriff's Office (MCSO) provides inmates with a system to register valid complaints pertaining to procedures and conditions within the jail. (See Affidavit of Sergeant Susan Fisher.) The inmate grievance and administrative appeal process is a three-tier system described in the "Rules

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Also, this Motion is filed in conjunction with a Motion for Summary Judgment as to all Defendants and all claims. Because the law distinguishes between the standards of proof for a motion to dismiss for failure to exhaust and a motion for summary judgment Defendants felt that it was necessary to separate the motions for the Court. Should the Court grant this Motion then the issues and claims set forth in Defendants' Motion for Summary Judgment will be pared down significantly.

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and Regulations for Inmates" as set forth in Procedure DJ-3 "Inmate Grievance Procedure." (See Exhibit A attached to the Affidavit of Sergeant Fisher.) Each inmate is provided with a copy of the Rules and Regulations during the booking process. (See Exhibit B attached to the Affidavit of Sergeant Fisher.) The three tiered system includes: (1) the initial grievance and decision by the Bureau Hearing Officer; (2) the Institutional appeal; and (3) the External appeal. Additionally, as Sgt. Fisher's affidavit attests to, nowhere in the content or language of Policy DJ-3 are there any restriction(s) as to the type of grievance or issue which may be grieved. (Affidavit of Sergeant Fisher, ¶ 4.) C. Plaintiff's Grievance Record.

The MCSO grievance records maintained for Plaintiff indicate that the Plaintiff actually filed a number of grievances during his time in jail, including grievances pertaining to overcrowding and him not receiving a proper Kosher diet. (Affidavit of Sergeant Fisher, ¶ 8.) These grievances were exhausted. Id. However, there is no record of any grievances pertaining to lack of recreation or not having access to religious services. Id. Nor is there any evidence that he filed a grievance pertaining to the alleged assault that took place on November 23, 2004. Additionally, when the Plaintiff grieved his issue of overcrowding he never mentioned that he did not have access to recreation or religious services. Id. ... ...
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II.

LEGAL ARGUMENT A. Motion to Dismiss is Proper Avenue for this Challenge.

The failure of a plaintiff to exhaust administrative remedies pursuant to the PLRA is treated as a matter in abatement, not going to the merits of the claim, and as such sis not properly raised in a motion for summary judgment. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), cert. denied, U.S 540 U.S. 810 (2003) and Ritza v. Int'l. Longshormen's and Warehousmen's Union, 837 F.2d 365, 369 (9th Cir. 1988). When the Court is ruling upon a non-enumerated motion such as this one, there is no presumption of truthfulness which attaches to the Plaintiff's allegations set forth in the complaint and "the existence of a disputed material fact will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims." Ritza, 837 F.2d at 369 quoting Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977)(citations omitted). Defendant has the burden of raising and proving the absence of exhaustion. Id. If the Court concludes that a prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the non-exhausted claims without prejudice. Id. B. Plaintiff Failed to Exhaust the Administrative Procedure.

The PLRA provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §1983], or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such Case 2:03-cv-01928-ROS-MEA Document 404 Filed 01/03/2007 Page 4 of 6

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administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is mandated regardless of the relief offered through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion applies to all inmate suits about prison life. Porter v. Nussle, 534 U.S. 516 (2002). This includes claims of excessive force. See Booth, 532 U.S. at 741. MCSO records indicate that the Plaintiff knew how to file a grievance and that he was given access to the grievance process. According the Sgt. Fisher, the Plaintiff filed a grievance relating to overcrowding and that it was appealed all the way to the external appeal. (See Affidavit of Sgt. Fisher, ¶ .) The Plaintiff never grieved any issues pertaining to lack of recreation or not having access to religious services. Nor did he appeal the issue pertaining to him being assaulted on November 23, 2003. These claims should be considered separate and apart from the Plaintiff's claim of overcrowding for the purposes of this motion and should be dismissed. It is obvious that the Plaintiff is attempting to co-mingle these issues to get around the fact that he did not grieve them. Plaintiff's own failure to abide by the rules mandates that those claims that were not grieved must be dismissed. III. CONCLUSION

Plaintiff had the opportunity to file grievances regarding all issues he has raised and he should have availed himself to that opportunity. The Plaintiff failed to comply with the mandates of the PLRA and his claims of lack of

recreation and not having access to religious services must be dismissed. Case 2:03-cv-01928-ROS-MEA Document 405 Filed 01/03/2007 Page 5 of 6

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RESPECTFULLY SUBMITTED this 3rd

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 20 s/Michele Haney 21
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 _3rd_ 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

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