Free Motion for Summary Judgment - 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 MOTION FOR SUMMARY JUDGMENT

Joseph M. Arpaio, et al., Defendants.

Defendant, Patrick Riddle, by and through undersigned counsel and pursuant to Rule 56, Federal Rules of Civil Procedure, hereby submits that the Plaintiff's claim of retaliation against Riddle must be dismissed as there is no

evidence that any of the actions of Riddle were in retaliation for the filing of Case 2:03-cv-01924-MHM-MEA Document 35 1 Filed 02/01/2007 Page 1 of 10

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grievances by the Plaintiff. Rather, any actions taken by Riddle were done for legitimate correctional purposes ­ promoting the safety and security of the jail. As such, the Defendant's Motion for Summary Judgment should be granted and the Plaintiff's complaint dismissed. This Motion is supported by the following Memorandum of Points and Authorities and the Separate Statement of Facts. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND A. Plaintiff's Claims of Retaliation

The Plaintiff claims that Sgt. Riddle retaliated against him for filing a grievance against detention officer Glee. In that grievance the Plaintiff

apparently claimed that D.O. Glee enlisted another inmate to physically assault the Plaintiff. (See Count X, Plaintiff's Complaint.) Plaintiff alleges that he

handed the grievance and what he terms and "affidavit" to Riddle and Riddle indicated he would take care of it. Id. Plaintiff claims that instead of taking care of the grievance, he was placed in administrative segregation and he alleges he never received a response to his grievance. Id. Finally, he claims that he was retaliated against through additional write-ups from Riddle. Id. B. MCSO policy

The Plaintiff was housed in the Madison Street Jail in Maricopa County. He was initially housed in what is known as the Nature of Charges, or "NOC" unit of the jail due to the charges against him. (SOF ¶ 1.) This is an area of the

jail where certain inmates are kept for their own safety. The policy of the Case 2:03-cv-01924-MHM-MEA Document 35 2 Filed 02/01/2007 Page 2 of 10

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Sheriff's Office is that inmates being housed in this unit are kept in the unit unless they become a safety and security risk. (SOF ¶ 2.) This can happen if the inmate is determined to be violent (e.g. starts a fight or is involved in a fight of some kind). At that point his classification status can be revisited and the inmate would be moved out of NOC and placed into administrative segregation for the inmate's safety and to protect the other inmates. (SOF ¶ 2.) In this area of the jail the inmate has all of the same privileges as when the inmate was in the NOC unit except they are kept in their cell for 23 hours a day and give an hour out of their cell. (SOF ¶ 3.) C. Plaintiff's History.

Because the Plaintiff was housed in the NOC unit he was subject to the policy set forth above. On June 14, 2004 the Plaintiff was involved in a multiinmate fight. (SOF ¶ 4.) Because of his involvement in the fight, a disciplinary action report "DAR" was written up by an Officer Zoutte. The DAR was reviewed by Sgt. Browning to make sure it was in proper form and Sgt. Browning, in accordance with MCSO policy, recommended that the Plaintiff be reclassified and moved to administrative segregation. (SOF ¶ 4.) A hearing was held by the hearing officer and sanctions were issued. (SOF ¶ 5.) Plaintiff appealed the determination of the hearing officer; however, the determination of the hearing officer was sustained. (SOF ¶ 5) At the time of the incident the Plaintiff, for some reason, was not

reclassified and moved in accordance with policy. (SOF ¶ 6.) It was not until Case 2:03-cv-01924-MHM-MEA Document 35 3 Filed 02/01/2007 Page 3 of 10

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there was a meeting with Lt. Kelly, Sgt. Riddlt and officer Glee that it was discovered that the Plaintiff should have been reclassified and moved in accordance with the recommendation of Sgt. Browning. (SOF ¶ 6.) After that meeting, it was determined by classification, not Riddle, to have the Plaintiff reclassified and moved to administrative segregation. (SOF ¶ 7.) The

Sergeants do not have the ability to reclassify and move inmates. At best, they can recommend reclassification based on the actions of the inmate. (SOF ¶ 7.) As far as any other write-ups, or DARs, Sgt. Riddle only was responsible for one other DAR pertaining to the Plaintiff. That DAR was dated 12-1-04 and it had to do with improper dress. (SOF ¶ 10.) The DAR was sent to a hearing officer and the hearing officer did not find that the Plaintiff intentionally violated any jail rules or regulations. (SOF ¶ 10.) There was one other DAR that was reviewed by Sgt. Riddle. (SOF ¶ 11.) It was dated June 9, 2004, prior to the fight that the Plaintiff was involved in, and it was authored by detention officer A7950. (SOF ¶ 11.) Sgt. Riddle reviewed the DAR and passed it on to the hearing officer. (SOF ¶ 11.) II. LEGAL ARGUMENT A. Summary Judgment Standard.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. Any disputed facts must be

material. Id. Substantive law determines which facts are material. Anderson v. Case 2:03-cv-01924-MHM-MEA Document 35 4 Filed 02/01/2007 Page 4 of 10

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those under the governing law which may affect the outcome of the case. Id. The dispute must also be genuine. Id. A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non moving party. Id. "If the evidence is merely colorable or is not

significantly probative, summary judgment may be granted." Id. at 249-50. A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings and discovery responses which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cartett, 477 U.S. 317, 323 (1986). The moving party who has the burden of proof on the issue at trial must establish all of the essential elements of the claim or defense for the court to find that the moving party is entitled to judgment as a matter of law. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986). However, the moving party need not disprove matters on which the opponent has the burden of proof at trial. Catrett, 477 U.S. at 322. If the moving party should meet its initial burden, the adverse party, in order to defeat the summary judgment motion, must "set forth facts showing that there is some genuine issue for trial." Liberty Lobby, 477 U.S. at 250. Thus, summary judgment is proper if the non moving party fails to make a showing sufficient to establish the existence of an essential element of his case on which

he will bear the burden of proof at trial. Catrett, 477 U.S. at 322. Case 2:03-cv-01924-MHM-MEA Document 35 5 Filed 02/01/2007 Page 5 of 10

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B.

Plaintiff Cannot Prove any Retaliation by Riddle.

Plaintiff's claim has to do with retaliation, which is a First Amendment claim under 42 U.S.C. § 1983. See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). To prove this claim the Plaintiff has the burden of showing five basic elements: (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. 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.") In analyzing a retaliation claim, the Court "must `afford

appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Pratt, 65 F.3d at 807 (9th Cir. 1995), quoting Sandin v. Conner, 515 U.S. 472, 482 (1995). In the case at hand, the Plaintiff cannot meet his burden. 1. Riddle did not take any adverse action against the Plaintiff.

First, the Plaintiff cannot show that Sgt. Riddle took any adverse action 19 against him. Sgt. Riddle was not the person who recommended that the Plaintiff 20 be moved into administrative segregation, nor was he the one who approved the 21 move. The move was recommended by Sgt. Browning because of the fact that 22
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the Plaintiff had become a security and safety risk in the pod where he was housed. (SOF ¶¶ 4-5.) The move took place later only after it was discovered that the move did not take place at the time the Plaintiff got into the fight. The change in his classification status and the approval for the move was done by classification, not Sgt. Riddle. (SOF ¶¶ 6 and 7.) As for any other "write-ups", there was only one DAR that was submitted by Sgt. Riddle. This DAR was done in December 2004 and ultimately, after the hearing officer held a hearing, it was determined that the Plaintiff did not intentionally violate any jail policies or rules. The Plaintiff did not suffer any adverse effects and there were no sanctions or an adverse action taken against him. 2. Any action against the Plaintiff was not because of protected conduct.

The Plaintiff suggests that his movement into administrative segregation 14 was based on his filing grievances against Detention Officer Glee. However, the 15 actual reason for his move was because the Plaintiff was in a fight and in 16 accordance with the policies and guidelines of the Sheriff's Office, inmates who 17 are housed in the NOC unit and who commit a major violation, such as getting 18 into fights, will be moved into administrative segregation. This was exactly what 19 happened with the Plaintiff. He got into a fight, was found to be an aggressor in 20 that fight and as a consequence it was recommended that he be reclassified and 21 moved to administrative segregation. There is no link between the filing of a 22
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grievance and this move. Nor is there any evidence suggesting that the DAR issued by Sgt. Riddle in December 2004 was in response to the Plaintiff filing a grievance. There simply is no causal link. 3. There was no chilling of the Plaintiff's First Amendment rights.

Should the Court determine that there was an adverse action against the 6 Plaintiff because of his protected conduct, then the Plaintiff must show that there 7 was some chilling effect on the exercise of his First Amendment rights. Barnett 8 v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). The Plaintiff has not and cannot 9 present any evidence that there was any chilling effect on his First Amendment 10 rights. Instead he continues to make conclusory statements that are not enough 11 to prove his claim. 12 4. 13 14 15 16 17 18 19 20 21 22 Any action was taken for a legitimate penological purpose.

Finally, it is clear that any actions taken were taken to advance a legitimate correctional goal. Specifically, the reason the Plaintiff was moved to administrative segregation was because of his violent behavior. The unit where the Plaintiff was being housed was the NOC unit, which is a form of administrative segregation. The inmates housed in that area of the jail are there because they have sensitive charges against them and it is the best way to house them to ensure their safety. If an inmate in that unit becomes violent, he then is no longer eligible to stay in that unit and will be moved to administrative

segregation, where he is allowed one hour out a day. Other than this change, Case 2:03-cv-01924-MHM-MEA Document 35 8 Filed 02/01/2007 Page 8 of 10

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he has the same rights and privileges that he had while in NOC. On June 14, 2004 the Plaintiff was in a fight. As a result it was

recommended that he be moved to administrative segregation. He was finally moved to administrative segregation in August. This was done for security and safety reasons, not in retaliation for filing grievances. Plaintiff has the burden to show that this did not advance a legitimate correctional goal and he cannot meet his burden. III. CONCLUSION Based on the foregoing, it is clear that the Plaintiff's claim of retaliation must fail. There is no way the Plaintiff can show any violation of his First

Amendment rights and it is his burden to do so. There is proof that the actions taken by MCSO were for a legitimate correctional goal ­ the safety and security of inmates and the institution. Defendant respectfully request that the Court grant his Motion for Summary Judgment and dismiss the last remaining count of Plaintiff's complaint. RESPECTFULLY SUBMITTED this _1st_ day of February 2007. ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

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Case 2:03-cv-01924-MHM-MEA

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 _1st_ day of February 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 District Court 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
CJ04-117 S:\COUNSEL\Civil\Matters\CJ\2004\Hearns CJ04-094\Pleadings\MSJ 1-30-07.doc

Case 2:03-cv-01924-MHM-MEA

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