Free Reply in Support of Motion - 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] REBECCA SALISBURY State Bar No. 022006 [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 Defendant Riddle IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Nathaniel Hearn Plaintiff, NO. CV03-1924-PHX-MHM (MEA) DEFENDANT PATRICK RIDDLE'S REPLY IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

Joseph M. Arpaio, et al., Defendants.

Defendant Patrick Riddle, by and through undersigned counsel, hereby submits this reply to Support his Motion for Summary Judgment and asserts that at no time did he retaliates against the Plaintiff for the Plaintiff's use of the inmate grievance system. Instead, the movement of the Plaintiff to Document 421 Filed 03/05/2007 Page 1 of 8

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administrative segregation was at the recommendation of a different Sergeant and it was approved by the Special Management Review Committee ("SMRC") in response to a fight that the Plaintiff had been engaged in while in jail. Plaintiff does not create a material issue of fact that would defeat summary judgment and as such Defendant asks that the Court dismiss this case in its entirety. 1 MEMORANDUM OF POINTS AND AUTHORITIES The Plaintiff in his Response to Defendant Riddle's Motion for Summary Judgment and supporting statement of facts makes a number of conclusory statements that are not supported by any evidence. Vague and conclusory

allegations in civil rights violations are insufficient to present a material issue of fact. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). As such, these conclusory statements, which are set forth in

Defendants Reply to the Plaintiff's Statement of Facts, cannot be used in considering this summary judgment. Even taking these statements at face value, it is clear that the Plaintiff cannot create a material issue of fact. As has been shown by the Defendant there are certain elements that the Plaintiff must show in order to prove his case. He must show: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.
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Defendant is also submitting a Supplemental Statement of Facts to support this Reply.

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Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000). See also Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)(the burden is on the Plaintiff to demonstrate "that there were no legitimate correctional purposes motivating the actions he complains of.") The Plaintiff cannot meet this burden. A. No Adverse Action Against the Plaintiff.

The Plaintiff cannot show that Defendant Riddle took any adverse action against him as a result of filing a grievance. The undisputable evidence shows that it was Sgt. Browning who recommended that the Plaintiff be moved into administrative segregation due to his involvement in a fight in the jail, not Sgt. Riddle. (Defendant's Statement of Facts, SOF, ¶ 4.) There was some delay prior to the Plaintiff being moved into administrative segregation; however, once the Lieutenant became aware that the Plaintiff had not been moved pursuant to Sgt. Browning's recommendation she notified the SMRC then reviewed the Plaintiff's file and made the decision to place the Plaintiff in administrative segregation, not Sgt. Riddle. (SOF, ¶ 7; and Defendant's Supplemental The decision to move the Plaintiff to

Statement of Facts, DSSOF, ¶ 8.)

administrative segregation was at the recommendation of Sgt. Browning and with the approval of SMRC. As for the one other Disciplinary Action Report in December, the Plaintiff did not suffer any adverse action. The DAR was submitted and it was

determined that the Plaintiff did not act intentionally. There was no adverse

consequence or action against him. (SOF ¶ 10.) Case 2:03-cv-01924-MHM-MEA Document 423 Filed 03/05/2007

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Plaintiff cites to the case of Miller v. Leathers, 913 F.2d 1085, 1088 (4th Cir. 1990) for the proposition that "retaliatory intent" can be inferred from an officers actions. However, this is not an accurate reading of the holding of the Fourth Circuit. Rather, what was at issue in Miller was whether or not the

Plaintiff in that case gave enough facts to support his claim that he was subjected to excessive force by the Defendant. Id. The Fourth Circuit found that the Plaintiff had given sufficient facts to defeat summary judgment. Id. However, unlike the specific facts set forth by the Plaintiff in Miller, the Plaintiff in this case cannot present sufficient facts to defeat summary judgment. Rather, he

presents only unsupportable allegations that Sgt. Riddle retaliated against him. As the undisputable facts show, Sgt. Riddle did not taken an adverse action again the Plaintiff and did not violate the Plaintiff's First Amendment Rights. Summary judgment in favor of the Defendant is appropriate. B. Any Action Taken Against the Plaintiff was a Result of His Conduct.

Plaintiff was the one who got into a fight and it was due to his getting into 16 the fight that he was sent to administrative segregation, not because he filed a 17 grievance against D.O. Glee. (SOF ¶¶ 4 ­ 6.) Once again the only evidence 18 that the Plaintiff can present is his own conclusory statements. The evidence is 19 undisputable that the Plaintiff caused this move, not Sgt. Riddle. 20 As for the one write-up by Sgt. Riddle, that write-up was done because 21 the Plaintiff did not follow the policies relating to clothing. Ultimately, there were 22
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no adverse consequences as a result of the write-up. The Plaintiff was allowed to be heard and it was determined that he did not intentionally violate any policy. C. Plaintiff Continued to Assert His First Amendment Rights.

Plaintiff does not show in his response that there was any chilling effect on his First Amendment rights. As a matter of fact, the evidence shows that the Plaintiff continued to assert his First Amendment rights. An example of this is when he filed a grievance on November 4, 2004 relating to the loss of the grievance and alleged affidavit. (See Exhibit C of Plaintiff's Statement of Facts.) Plaintiff took this grievance all the way through the proper grievance procedure. Also, the Plaintiff was able to file other grievances after the loss of that grievance and after being moved to administrative segregation. (DSSOF, ¶ 13.) As this shows the Plaintiff complained about being sent to administrative segregation (grievances 04-09726 and 04-09752), he grieved the actions of officer Glee (grievance 04-09226), as well as other issues. (DSSOF ¶ 13.) The Plaintiff has not shown and cannot show that there was any chilling of his First Amendment rights. A grievance was misplaced or somehow did not make it through the process. However, this did not stop the Plaintiff from using the grievance system. Also, had the Plaintiff chosen to do so, he could have filed another grievance and obtained another affidavit or statement from this mysterious, unnamed witness. He chose not to go this route. Because there is no proof of a chilling of his rights, Plaintiff's claim must fail. ...
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D.

Any Actions Taken Were to Promote the Safety and Security of the Institution.

Finally, as has been shown in the original Motion the actions taken to 3 move the Plaintiff into administrative segregation were for the safety and 4 security of the jail. He was required to be moved because the unit he was in 5 was a unit where vulnerable inmates were housed and it was and is the policy of 6 the Sheriff to make sure these inmates are protected. (SOF ¶ 2; DSSOF ¶ 9.) If 7 it is determined that someone may pose a threat and they get into a fight, they 8 will be moved. This is a legitimate correctional goal. 9 Plaintiff's only argument that it is not for the safety and security of the jail 10 is his mere statement that in his opinion, his being moved served no purpose. 11 Once again, this conclusory statement does not support his claim. Rather, the 12 undisputed evidence is that the Plaintiff posed a threat when he got into the fight 13 and he was moved in accordance with MCSO policy. 14 Also, it appears that Plaintiff is claiming that the DAR that was issued by 15 Sgt. Riddle relating to the Plaintiff rolling up cuffs in his pants and for sagging his 16 pants was in retaliation for filing the grievance about officer Glee. However, 17 other than his mere conjecture, there is no proof that this was in retaliation. 18 First, this was the only DAR submitted on Sgt. Riddle's behalf after the Plaintiff 19 was in the fight. Second, the DAR was issued because of a violation of MCSO 20 policy; however, it was determined that the Plaintiff was not acting intentionally. 21 Third, it was issued because it was a violation of policy and it is possible that an 22
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inmate can hide contraband in the cuffs of his pants and sagging can be a sign of gang affiliation. (SOF ¶ 10.) Both of these have a tremendous impact on jail safety and security and whether an inmate is acting intentionally or accidentally, there is a legitimate goal being preserved and that is the safety and security of the jail. Because there is no evidence showing otherwise, Plaintiff's claim must fail. III. CONCLUSION Based on the foregoing and the arguments set forth in the Defendant's Motion for Summary Judgment, Defendant respectfully requests that the Plaintiff cannot present a material issue of fact that would otherwise defeat this Motion for Summary Judgment. Additionally, the Plaintiff cannot meet his burden of proof under the law. Therefore, Defendant Riddle is entitled to summary

judgment and the Court should dismiss the Plaintiff's claim with prejudice. RESPECTFULLY SUBMITTED this _5th_ day of March 2007. ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

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s/Joseph I. Vigil JOSEPH I. VIGIL REBECCA SALISBURY Attorneys for Sgt. Riddle

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ORIGINAL of the foregoing E-FILED and copies MAILED this _5th_ day of March 2007 to: Honorable Mary H. Murgia 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 Nathaniel Hearn, #66155 ASPC Florence ­ MU Meadows Unit ­ Eyman #8A-32 P.O. Box 3300 Florence, AZ 85232 Plaintiff Pro Per

s/Michele Haney
CJ04-094 S:\COUNSEL\Civil\Matters\CJ\2004\Hearns CJ04-094\Pleadings\Replyto Support MSJ-030507.doc

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