Free Reply in Support of Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Mark E. Hampton, Plaintiff, v. Charles Ryan, et al., Defendants. No: CV03-1706-PHX-NVW (VAM) DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (DKT. 59)

Defendants1, through undersigned counsel, submit their Reply in Support of their Motion for Summary Judgment. (Dkt. 59.) The pleadings and supporting documents establish that Mark E. Hampton ("Hampton") fails to provide any evidence to establish that there is a genuine issue of material fact precluding entry of judgment for Defendants as a matter of law. This Reply is supported by the attached Memorandum of Points and Authorities.

RESPECTFULLY SUBMITTED this 13th day of November, 2006. TERRY GODDARD Attorney General s/ Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants
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Dora Schriro, Conrad Luna and Barbara Shearer.

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION
For Hampton to survive Defendants' Motion for Summary Judgment, he must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995). Hampton's Response to Defendants' Motion for Summary Judgment ("Response") (Dkt. 66) fails to demonstrate that there is a triable factual issue. Hampton does not present admissible evidence that any Defendant violated his constitutional rights. Defendants rely on their Statement of Facts in Support of their Motion for Summary Judgment ("Defendants' SOF"). (Dkt. 60.)

II.

ARGUMENT A. Hampton Fails to State a Procedural Due Process Claim as a Matter of Law.
To state a due-process claim, Hampton must first establish that he has an underlying

protected liberty interest. Hewitt v. Helms, 459 U.S. 460, 466 (1983). Defendants admit that Hampton has a protected liberty interest in avoiding indefinite placement in the Special Management Unit ("SMU") II. See Wilkinson v. Austin, 545 U. S. ___, 125 S. Ct. 2384, 2394 (2005). Therefore, he was entitled to the process as identified in Wilkinson prior to his placement in SMU II. However, that interest is subject to clearly established time limitations which bar his ex post facto argument.

(1)

Hampton's Argument Related to His Initial Validation Is Barred By The Statute Of Limitations.

Hampton argues that his initial validation as an STG member violated his right to Due Process Rights and the prohibition against ex post facto application.2 (Dkt. 66 at p. 7.) He argues that he was denied Due Process because the evidence the ADC relied on to

Defendants will respond to Hampton's ex post facto argument infra.

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support his initial validation was "invalid, improper, and questionable evidence." (Dkt. 66 at p. 2.)3 A claim arises under federal law "when a plaintiff knows or has reason to know of the injury which is the basis for his action." Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). In this case, Hampton knew the critical facts of his injury no

later than December 5, 1998, i.e. when his appeal was denied. See Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 2001) (Statute of limitations begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence"). The applicable statute of limitations for a § 1983 action is the forum state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266, 274-76 (1985). Arizona's statute of limitations for personal injury actions is two years. A.R.S. § 12-542(1); Madden-Tyler v. Maricopa County, 189 Ariz. 462, 465-66, 943 P.2d 822, 82526 (App. 1997) (two-year statute of limitations governs federal civil rights claims in state court). To challenge his initial validation and indefinite transfer to SMU II, Hampton must file suit on or before December 5, 2000. Hampton filed his original Complaint on September 3, 2003, and lodged his First Amended Complaint on September 30, 2005. (Dkt. 60 at ¶¶ 2-3). Therefore, his due process claim is time-barred and should be dismissed. (2) Hampton Received the Process Due Him Before His Confinement in SMU II.

Although his claim is barred by the applicable statute of limitations, Hampton argues that Defendants validated him as an STG member with "stale" evidence and classified him solely on "status" evidence, rather than "conduct" evidence. (Dkt. 66 at p. 9.) Hampton's

position lacks a practical, penological and constitutional foundation. The Court in Wilkinson
Hampton was validated as an Aryan Brotherhood ("AB") member on October 28, 1998, and his validation appeal was denied on December 5, 1998. (Dkt. 60 at ¶¶ 46-47.)
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applied the three-factor test articulated in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) to evaluate the sufficiency of process provided to inmates prior to transfer to a Supermax facility:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Wilkinson, 125 S. Ct at 2395 (quoting Mathews, 424 U.S. at 335). The first factor requires consideration of the significance of the inmate's interest in avoiding erroneous placement in a Supermax facility like SMU II. Id. at 2395. The second factor addresses the risk of erroneous placement under the procedures in place, and the probable value, if any, of additional or alternative procedural safeguards. Id. at 2395-96. Notice to the inmate of the factual basis and a fair opportunity for rebuttal and a review process for any decision recommending Supermax placement with power to overturn the decision satisfies this requirement. Id. at 2396. ADC's STG policy provides all of these procedural safeguards. See (Dkt. 60 at Exhibit A.) The third and dominate consideration is the State's interest to ensure the safety of guards and prison personnel, the public, and the prisoners themselves. Id. at 2396. Courts must therefore "give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior." Id. A balance of the Mathews factors confirms that ADC's STG policy (providing notice of the factual basis for the placement and an opportunity to be heard) is adequate to safeguard an inmate's liberty interest in not being assigned to SMU II on an indefinite basis. Wilkinson, 125 S. Ct. at 2395-97. Hampton received notice of the validation

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hearing and an opportunity to be heard. (Dkt. 60, ¶ 45.) As such, Hampton fails to present a viable argument that his right to due process was violated in his initial validation. (3) Hampton's STG Validation Did Not Require "Conduct" Evidence. Hampton argues that the evidence relied on for his STG validation did not include "conduct" evidence. (Dkt. 66 at p. 9.) Hampton's reliance on the visiting judge's decision in Koch v. Lewis, 216 F.Supp.2d 994, 997-98 (D. Ariz. 2001), vacated as moot, 399 F.3d 1099 (9th Cir. 2005) is improper and not precedence for Hampton's position.4 The Ninth Circuit's decision in Bruce v. YIst, 351 F.3d 1283 (9th Cir. 2003), which post-dates Koch serves as binding precedent on this Court. In Ylst the validation was based on a report from the local Sheriff's Department, a probation report which stated that the co-defendant in the plaintiff's trial was a member of the same gang, and a statement from a prison informant. Id. at 1287-88. The Ninth Circuit noted that "any one of these three pieces of evidence would have sufficed to support the validation." Id. at 1288. In addition, "conduct" evidence imposes additional evidentiary criteria for due process--i.e., an overt act of misconduct--found nowhere in the law and conflicts with the Supreme Court's holding in Wolff , that due process is satisfied if "there is any evidence in the record that could support the conclusion reached by the disciplinary [body]." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 456 (1985). Here there were five pieces of evidence in the record to support Hampton STG validation. (Dkt. 60 at ¶ 46.) Moreover this reactive approach to the gang threat conflicts with U.S. Supreme Court and Ninth Circuit authority mandating that prison administrators anticipate the threat and prevent the "overt act of misconduct" from happening. Farmer v. Brennan, 511 U.S.

Koch does not represent the law in the Ninth Circuit or elsewhere on the process required prior to Supermax placement. Case 2:03-cv-01706-NVW Document 71 Filed 11/13/2006 Page 5 of 11

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825, 842 (1994); Turner, 482 U.S. at 89; O'Lone v. Estate of Shabazz, 482 U.S. 342, 34950 (1987); Sutton v. Stewart, 22 F.Supp.2d 1097, 1102 (D. Ariz. 1998) aff'd, 185 F.3d 869 (9th Cir. 1999). There is no question that Hampton's STG validation was supported by "some evidence in the record." (Dkt. 60 at ¶ 46); see Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987); Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986). (4) Hampton's Validation as an STG Member Did Not Violate the Ex Post Facto Prohibition.

Hampton argues that the ADC violated the ex post facto clause because it relied on evidence to support his validation that pre-dated the designation of the Aryan Brotherhood as a STG group. (Dkt. 66 at p. 7.) Simply stated, Hampton argues that the ex post facto clause should be used as an evidentiary exclusionary rule to exclude facts which pre-date the designation of the AB's as an STG. A statute constitutes an ex post facto law if, among other things, it inflicts a greater punishment than the punishment originally assigned to the crime. State v. Beltran, 170 Ariz. 406, 407, 825 P.2d 27, 28 (App.1992); Noble, 171 Ariz. at 173, 829 P.2d at 1219; Aranda, at ¶ 23. "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of `disadvantage,' . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n.3, (1995). If the statute regulates civil, as opposed to criminal, law, it will not constitute an ex post facto law unless the party challenging the statute provides "the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil." Kansas v. Hendricks, 521 U.S. 346, 361 (1997). Proving that an act of civil law imposes punishment is a "heavy burden." Id. "[E]ven if the legislature's nonpunitive purpose was merely ancillary to another overriding or primary purpose of the

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statute, a court may conclude that the statute is not punitive." Russell v. Gregoire, 124 F.3d 1079, 1086 (9th Cir. 1997). Hampton cannot carry his burden of showing that the STG policy (DO 806) was meant to punish him for his past criminal acts. The policy is not a criminal statute. It does not alter the definition of criminal conduct nor does it increase the penalty for Hampton. The purpose of the STG policy is to minimize the threat posed by inmate gang or gang-like activity to the safe, secure, and efficient operations of the Arizona Prison System. (Dkt. 60 at ¶ 29.) The evidence that inmate Hampton "hung out" with other inmates prior to the AB's designation as a STG and prior to the other inmates' subsequent validation as STG members cannot be ignored under the guise of ex post facto. (5) Hampton Received Adequate Post Validation Due Process.

Hampton argues that he is denied "meaningful review" and that the procedures for leaving SMU II violate due process. (Dkt. 66 at pp. 10-12.) Hampton is afforded

reclassification reviews while housed in SMU II, and, as such, is provided appropriate due process. Reclassification reviews afford a similar process to the original validation hearing. See (Dkt. 60, Exhibit B generally.) Prior to each annual re-classification review, the inmate receives written notice, has an opportunity to present evidence, is informed of his right to remain silent, receives a written explanation of the reasons for his classification, and has a right to appeal the classification decision. (Dkt. 60 at ¶ 18; Dkt. 66, Exhibit A.) Nothing further is required to comport with procedural due process. See generally Wilkinson.

The U.S. Supreme Court has expressly rejected a requirement of "additional evidence or statements" to justify continued segregated confinement. See Hewitt, 459 U.S. at 477 n. 9 (emphasis supplied) ("The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner ­ which will have been ascertained when determining to confine the inmate to administrative segregation ­ and on the

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officials' general knowledge of prison conditions and tensions, which are singularly unsuited for `proof' in any highly structured manner"). (6) The Procedures for Leaving SMU II Do Not Violate Due Process.

Hampton incorrectly argues that debriefing and the Step-Down Program violate due process. Hampton argues that he is precluded from debriefing because it could bring him harm and because he lacks the information required to debrief. (Dkt. 66 at p. 12.) He further argues that the Step-Down program is defective because the program is entirely discretionary with prison officials.5 Neither violates Hampton's due process rights because he does not possess a liberty interest in debriefing or the Step-Down Program. See Rizzo v.
Dawson, 778 F.2d 527, 530 (9th Cir. 1985).

C. Defendants' Conduct Did Not Violate the Eighth Amendment. (1) Defendants Were Not Deliberately Indifferent to Hampton's Medical Needs.

Hampton must show that Defendants acted with deliberate indifference to serious medical needs. Farmer, 511 U.S. at 825. A defendant must purposely ignore or fail to respond to a prisoner's pain or medical need in order to establish deliberate indifference. Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006). A difference of opinion between medical personnel does not amount to deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Here, Jack F. Doris, M.D. ("Doris"), who never physically examined Hampton,

or even consulted with him, determined from a review of Hampton's medical records from 1996 through 2005 that his hernias, combined with pain, required surgery. (Dkt 66, Affidavit of Doris at ¶¶ 6-7; ¶¶ 1-6, Supplemental Declaration of Dr. Sharp "Sharp Supplemental,"

attached hereto as Exhibit 1.) The decision to decline surgical intervention was made by
Plaintiff wrongly asserts that the policy enacted on March 15, 2006, was brought about by pending lawsuits. (Dkt. 66 at p. 12, fn4.) The Step-Down Program was "founded upon the premise that because the vast majority of inmates will eventually be released back into society, a prison should be managed in [a] way that prepares inmates for that eventual return." Baptisto v. Ryan, 2006 WL 798879 *4 (D.Ariz.).
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ADC medical doctors who physically examined Hampton, as well as, the recommendations of the Medical Review Committee whom reviewed his ultrasound and MRI test results. (Sharp

Supplemental at ¶¶ 7-9.) Dkt. 60, Exhibit F at ¶ 7(N).) Most recently, Hampton was seen by
a general surgeon on November 8, 2006, for a determination as to treatment of his hernias. (Sharp Supplemental at ¶¶ 14-15.) The physician determined that his hernia was clearly reducible, though it has enlarged and may cause complications in the future.6 Supplemental at ¶¶ 14-16.) Furthermore, Hampton was diagnosed with Barrett's esophagitis on April 12, 2006, (Dkt. 60, Exhibit F at ¶ 7(G)), over six months after he amended his complaint to add the medical indifference claim (Dkt. 60 at ¶ 3). Hampton's Amended Complaint alleges (Sharp

deliberate indifference for his hernias, back pain, abdominal pain, and weight loss, not Barrett's esophagitis. (Id.) Hampton cannot argue medical indifference for a condition that had not yet been detected at the time he filed his Amended Complaint. Further, ADC

providers followed the outside provider's recommendation for treatment of the Barrett's esophagits and treat his mild inflammation with PPI's (Proton Pump Inhibitors), as well as,

Omeprazole. (Dkt. 60, Exhibit F at ¶ 67(G); Sharp Supplemental at ¶ 12-13, 16.)
Doris claims that Hampton receives Ibuprofen for Barrett's esophagitis which will possibly lead to a serious medical condition. (Dkt. 66, Affidavit of Doris at ¶ 8.) It is unclear whether Doris had access to Hampton's 2006 medical records to make that determination.7 While the medical records indicate that Hampton received Ibuprofen for his back pain in 2005 (Dkt. 60 at ¶¶ 127, 139), the records show that his Barrett's esphagitis was treated by Omeprazole, not Ibuprofen, and that he has not received any prescriptions for Ibuprofen in

A copy of the Consultation by Dr. Pedersen, occurring on November 8, 2006, was received by undersigned counsel on November 13, 2006, and will be tendered to opposing counsel with the copy of their Reply motion. Undersigned counsel obtained a copy of Hampton's medical file from 1996 through 2005, in February, 2006, and tendered a copy to opposing counsel. Dr. Sharp reviewed the inmate's file at the medical facility in Eyman in July, 2006. Hampton's file contained his records from January, 2006, to July, 2006, and Dr. Sharp provided information regarding Hampton's treatment during that time. Neither counsel had a copy of Hampton's medical file for this time period. As such, the records were ordered and will be forwarded to opposing counsel upon receipt. Case 2:03-cv-01706-NVW Document 71 Filed 11/13/2006 Page 9 of 11
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2006. (Sharp Supplemental at ¶¶ 12-13.) Defendants did not purposefully ignore or fail to respond to Hampton's medical needs but rather appropriately responded numerous times to them. (Dkt. 60 at ¶¶ 100-162.) The difference in medical opinion between Doris and ADC medical personnel does not amount to medical indifference. As such, Defendants should be granted summary judgment as a matter of law.

Hampton's Conditions of Confinement Do Not Violate the Eighth Amendment. Hampton argues that the inadequate food, pervasive lighting and denial of medical
treatment are related conditions of confinement, as well as, the denial of books/magazines, socialization, and limited visitation. Unless the conditions are intertwined, such as exposure to cold temperatures and lack of winter clothing, courts disfavor combining conditions. See generally Rhodes v. Chapman, 452 U.S. 337, 348 (1981); see also Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). The specific conditions Hampton mentions are not so closely related as to justify cumulative status and therefore Defendants should prevail. Hampton is afforded a constitutionally sufficient amount of exercise and he is exposed to the outdoor elements when he is in the exercise area. See Baptisto v. Ryan, 2006 WL 798879 *2 (D.Ariz.); Spain v. Procunier, 600 F.2d 189, 199-200 (N.D. Cal. 1976) (five hours of recreation time per week was constitutionally sufficient); French v. Owens, 777 F.2d 1250, 1255-56 (7th Cir. 1985); Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980). This Court can take judicial notice of the findings in Baptisto where the court held that the identical exercise conditions Hampton complains of in SMU II is constitutional. Baptisto, **31-35. In addition, Hampton is allowed to possess newspapers, magazines or books. Because he is not barred from these items summary judgment is appropriate as to this issue.8 (Dkt. 60 at ¶ 53.) Hampton also fails to establish that Defendants were deliberately indifferent to a substantial risk of serious harm to him. Because Hampton was not subjected to a risk of serious harm, his claim must fail. As such, Defendants are entitled to judgment as a matter of law as to Hampton's cruel and unusual punishment claims.

(2)

Hampton claims that a ban on these materials violates the First and Eighth Amendments. However, Hampton did not bring a First Amendment claim. (Dkt. 60 at ¶¶ 2-3.) Case 2:03-cv-01706-NVW Document 71 Filed 11/13/2006 Page 10 of 11

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#984614

RESPECTFULLY SUBMITTED this 13th day of November, 2006. TERRY GODDARD Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

Original and one copy e-filed this 13th day of November, 2006, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Robert L. Storrs Robert L. Storrs, P.C. 45 W. Jefferson, Suite 803 Phoenix, AZ 85003-2317 Attorney for Plaintiff s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS04-0363/RSK:GG04-20823

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