Free Reply to Response to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Tel: (602) 263-7324 Fax: (602) 200-7837 [email protected] Attorneys for Defendants Cora Miles, Joe Gluch, Stella Ponce, Seferino Talamantes, and Timothy Cason UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Carlos Arthur Powell, NO. CIV 03-1819 PHX-JAT (LOA) Plaintiff, v. F. Garcia (Asst. Warden), C. Miles (Unit Manager/Bravo) E. Scalet (Ins. Inv.) Todd Mohn (DHO Hearing Officer) Defendants. DEFENDANTS CORA MILES , JOE GLUCH, STELLA PONCE SEFERINO TELAMANTES AND TIMOTHY CASON'S REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants Cora Miles,

Joe

Gluch,

Stella

Ponce,

Seferino Talamantes, and Timothy Cason (hereinafter Defendants), through counsel, hereby reply in support of their Motion for Summary pursuant to Federal Civil Rule 56 and Local Rule 56.1. The Reply is supported by the attached Memorandum of Points and Authorities, Defendants' Separate Statement of Facts, Defendants' Supplemental Separate Statement of Facts, and the pleadings and exhibits in this case. /// ///

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RESPECTFULLY SUBMITTED this 21 st day of March 2006. J ONES, S KELTON & H OCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES Introduction Defendants filed a Motion for Sum mary Judgment (Dkt. # 165), and Statement of Material facts on or about January 27, 2006. (Dkt. # 166). Powell filed his Response on or about March 6, 2006. (Dkt. # 170). Powell's Response Memorandum does not comply with F ED R. C IV. P ROC. 56(e) because he sets forth no specific adm issible facts showing there is a genuine issue for trial. Powell simply tries to rest upon his allegations without any supporting evidence. Since Powell does not provide evidence which would create an issue of fact for resolution by jury, Summary Judgment is appropriate. Standard A genuine issue of material fact exists only if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, if the non-moving party seeks to avoid summary judgment through an affidavit (as does Powell), the affidavit must raise a genuine issue of material fact by alleging specific, admissible facts of which a competent affiant has personal knowledge. Because Powell's filings come nowhere near this standard, Defendant is entitled to summary judgment. 2

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No litigant, including Powell, can raise a triable fact issue by filing a vague affidavit that generally disputes the movant's contentions. Rule 56(e) sets out precise standards governing the type of affidavit necessary to successfully resist a summary judgment motion; specifically, the Rule requires that "opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated herein." Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992). Fed. R. Civ. P. 56(e). Thus, responsive affidavits must (1) be based upon personal knowledge of the person supplying the answers; (2) set forth facts which would be admissible in evidence; and (3) affirmatively demonstrate that the person supplying the information is competent to supply the answers. Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F.Supp.2d 1054, 1057 (D.C.ARIZ. 2002). As the Supreme Court has repeatedly explained, :[g]eneral allegations of injury may suffice at the pleading stage, but at summary judgment plaintiffs must set forth `specific facts' to support their claim." Friends of the Earth, Inc. v. Laidlaw Evnt'l Servs. (TOC), Inc., 528 U.S. 167, 198 (2000) (citations omitted); see also, Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 560 (1997) (reversing denial of summary judgment because "Papai had the burden at summary judgment to `set forth specific facts showing that there is a genuine issue for trial [and] [h]e failed to meet it."). Thus, in addition to submitting a competent, admissible affidavit based on personal knowledge, Powell must set for specific facts that would be adm issible in evidence. The Court must grant sum mary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material facts and that the moving 3

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party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jesinger v. Nevada Fed. Credit Union. 24 F.3d 1127, 1103 (9 th Cir. 1994). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Jesinger, 24 F.3d at 1130. In addition, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Summary judgment is appropriate against a party who "failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548; see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9 th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex. 477 U.S. at 323, 106 S.Ct. 2548. Furthermore, the party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.. 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture. 53 F.3d 1044, 1049 (9 th Cir. 19956). There is no issue for trial unless there is sufficient evidence favoring the non-moving party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. /// 4

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Argument Plaintiff fails to set forth specific material facts showing the existence of a genuine issue for trial, and as a result summary judgment is appropriate. Retaliation A claim by a prisoner that he has been the victim of retaliation requires a showing that: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoners' protected conduct, and that such action (4) chilled the inm ate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. See, e.g., Resnick v. Hayes, 213 F.3d 443, 449 (9 th Cir. 2000). In this instance Plaintiff fails to show he was placed in the SHU because he was engaged in som e protected conduct which then chilled his exercise of his First Amendment rights. Plaintiff testified he was placed into the SHU as part of an investigation concerning an allegation that he was selling his legal work. (SOF ¶ 44). Plaintiff's testimony does not set forth with any specificity that he was placed into the SHU because he was filing grievances. There is no evidence other than that Plaintiff was put into the SHU as part of an investigation concerning wrongful conduct, then held there for his own safety as a result of threats. (SOF ¶ 44). Even the Plaintiff acknowledges he has no evidence of retaliation. W hen asked about the reasoning for his placement in SHU he did not implicate the Defendants in a retaliatory scheme, but admits he was placed there due to an investigation of prohibited conduct. (SOF ¶ 44). In this case, Plaintiff fails to provide specific facts that he was placed in SHU for a retaliatory reason. In addition, his placement in SHU did not prevent him continuing to exercise his First Amendment rights. Plaintiff was able to file and litigate this action after he 5

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was in the SHU. As a result, Plaintiff is unable to provide specific facts upon which he bears the burden of proof, to create a genuine issue for resolution by the jury that retaliation occurred. Because of this evidentiary failure Defendants are entitled to summary judgment. Snitch Jacket/Threat to Safety Powell produces no evidence that any Defendant called him a snitch which led to him being placed in danger. Powell was initially placed into the SHU on August 14, 2004 as a result of an investigation into whether he was selling legal materials to other inmates. (SOF ¶ 44). On or about September 7, 2003, and while Plaintiff was in SHU, inmate Jose Garcia (Ibbarra) informed a kitchen worker supervisor, Miss Gonzales, that if Plaintiff got out of SHU he would get hurt. (SOF ¶ 45). As a result of this conversation, Ms. Gonzales issued a CIM (Central Inmate Monitoring) notification concerning a threat to safety. (SOF ¶ 45). Plaintiff was then held in the SHU because of the perceived threat. (SOF ¶ 45). In this case, there is no dispute that threats to Plaintiff's safety arose after he was in SHU. The Plaintiff acknowledged the threats and the fact he was held in SHU because of threats. Plaintiff fails to set forth facts whereby he was placed in danger as a result of being labeled a snitch by any Defendant. Plaintiff states the reason he was in danger was because inmate Ibbarra was angry that Powell placed a detainer back on Ibbarra as a result of Powell's grievance to the INS. (SOF ¶ 45). The fact that Powell had a detainer placed on another inmate led to the threat of harm. Even if there were som e disclosure by Defendants' of Powell's conduct he was in SHU and protected. Because Plaintiff fails to set forth specific facts of deliberate indifference, and fails to show an affirmative link to damage he cannot sustain his burden at trial and summary judgment is appropriate. 6

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Powell also fails to provide specific facts that any Defendant ordered him to be escorted to the INS hearing and placed unprotected into the courtroom with other inmates. Powell's burden of proof is to show a Defendant's awareness or knowledge of facts that a substantial risk of harm to Powell exists and that with the knowledge the Defendants disregarded the risk and placed Powell in danger. Farmer v. Brennan, 511 U.S. 825 (1994). Here, Powell provides no specific facts that any named Defendant created a situation which placed Powell in a position where a substantial risk of harm would arise. Because Powell was in the presence of an officer at all times, he cannot show a "substantial" risk of harm to his safety. Powell's evidence and Affidavits do not address his claim s of an incident in the INS hearing room. Powell simply states Defendants' Affidavits are "fabricated." Again, Plaintiff simply has no specific facts which establish a viable claim or a genuine issue of fact for resolution by the jury. Monell Claims Plaintiff's claims against Defendant Gluch appear to involve a lack of post-incident investigation. Gluch is a regional director for CCA, and Plaintiff claims he sent a variety of complaints to him concerning retaliation. Powell does not attach any of the grievances nor does he provide specific facts to establish Monell liability. Powell still has not identified direct participation by Gluch in unconstitutional conduct nor unconstitutional conduct that implements a CCA policy. This failure is enough to grant summary judgment. Even if there is some conduct or identified policy Powell fails to provide a causal connection between the policy and the injury suffered. Since Powell fails to provide facts that establish Monell liability summary judgment is appropriate. /// /// 7

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Injury Powell has not established his diabetes was caused by any Defendants' action. His diabetic condition will cause certain physical complications without any action by Defendants. There is no medical evidence, including medical records or reports that Plaintiff suffered any injury as a result of the Defendants' actions. This failure is sufficient to grant summary judgment. Punitive Damages Plaintiff presents no argument concerning punitive damages and therefore judgment should be granted to Defendants on that issue. Brydges v. Lewis, 18 F.3d 651 (9 th Cir. 1994). Conclusion For the foregoing reasons, Defendants request the court grant Defendants' Motion for Summary Judgm ent. RESPECTFULLY SUBMITTED this 21 st day of March 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Cora Miles, Joe Glu ch, S t e l la Ponce, Seferino Talamantes, and Timothy Cason ORIGINAL of the foregoing electronically filed this 21st day of March 2006, with: Richard W eare, Clerk U NITED S TATES D ISTRICT C OURT /// /// 8

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COPY of the foregoing mailed this 21 st day March 2006, to: The Honorable James A. Teilborg U NITED S TATES D ISTRICT C OURT Sandra Day O'Connor U.S. Courthouse, Suite 523 401 W est Washington, SPC 51 Phoenix, Arizona 85003-2154 Carlos Powell, #10090-023 D/U 325 FCI-1 V ICTORVILLE P. O. Box 5300 Adelanto, California 92301-5300 Plaintiff Pro Se COPY of the foregoing faxed this 21st day March 2006, to: Office of the Pro Se Staff Attorney 602-322-7289

s/Dianne Clark 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1603883_1

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