Free Motion for Summary Judgment - 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. Defendants1, by and through undersigned counsel, pursuant to Federal Rules of Civil Procedure 56(b) and Local Rule 56.1, submit their Motion for Summary Judgment. This Motion is supported by the attached Memorandum of Points and Authorities and concurrently filed Statement of Facts (hereinafter "SOF".) No: CV03-1706-PHX-NVW (VAM) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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Charles Ryan, Conrad Luna and Barbara Shearer.

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I.

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION

Plaintiff, Mark E. Hampton ("Hampton"), #037486, is an inmate in the custody of the Arizona Department of Corrections ("ADC"), currently housed in Arizona State Prison Complex ("ASPC") ­ Eyman, Special Management Unit ("SMU") II, serving a life sentence for murder. ("SOF") at ¶ 1.) On September 30, 2005, Hampton filed his First Amended Complaint pursuant to 42 U.S.C. § 1983 against the Defendants identified in his original Complaint alleging multiple Eighth Amendment and due process violations. (SOF ¶¶ 2, 3.) II. FACTS Parole - Hampton's original parole date was August 6, 2010. Due to disciplinary violation sanctions his parole date is now April 3, 2011. (SOF ¶¶ 8, 10-12.) Hampton's eligibility for parole is not affected by his STG membership. (SOF ¶¶ 13-14.) Classification - SMU II inmates receive periodic classification reviews every 180 days which examines a variety of information establishing a classification profile for the inmates.. (SOF ¶¶ 5, 15-19, 23.) Because STG members are an ongoing threat to the safety and order of the prison system they maintain a Public Risk Score ("P") of 5 and an Institutional Risk Score ("I") of 5 and are ineligible for score reductions. (SOF ¶¶ 21-22, 29, 38, 50.) STG Classification - Hampton has received a classification review every 180 days since his placement in SMU II on February 8, 1999. (SOF ¶¶ 26, 37, 48.) Absent security concerns and a Type 89 paperless review, Hampton is provided notice and the opportunity to appear and present evidence to the ICC. (SOF ¶¶ 24-26, 28.) Hampton refuses to renounce his STG membership and often refuses to attend the hearings. (SOF ¶¶ 27-28.) STG Validation - The Aryan Brotherhood was designated as a STG on August 31, 1995. (SOF ¶¶ 4, 30-31.) Hampton was given notice of his validation hearing and

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appeared and presented his defense. (SOF ¶ 45.) He was validated as a member of the Aryan Brotherhood on October 28, 1998 and appealed. (SOF ¶¶ 20, 32-35, 46.) His appeal was rejected on December 5, 1998 and he was transferred to SMU II on February 8, 1999, where he will remain until he renounces or completes the Step-Down Program. (SOF ¶¶ 36, 39-40, 47-49.) The purpose of debriefing is not to obtain incriminating criminal information, but rather to learn about the STG and determine needs for protection from other STG members. (SOF ¶ 39.) The Step-Down Program is an alternative to renouncing gang membership and debriefing. (SOF ¶ 43.) The Step-Down Program is in revised DO 806, effective March 15, 2006 and commenced in May 2006. (SOF ¶¶ 40, 44.) The program prepares inmates for their eventual return to society and requires the STG inmate to complete an 18 month program divided into six phases. (SOF ¶¶ 41-43.) Each phase requires that inmates complete certain programs and refrain from certain behavior, and if successful may earn their release from SMU II without renouncing their gang membership and debriefing or may remain within the program. (SOF ¶¶ 40-44, 49.) Hampton is eligible to participate in the Step-Down Program but has not been selected. (SOF ¶ 49.) Conditions of Confinement - All inmates housed in SMU II have certain privileges and are subject to various restrictions. Hampton can speak to other inmates in his pod and to prison staff and counselors. (SOF ¶¶ 6, 51, 52, 56.) He has access to reading materials, music tapes, television, books, magazine, newspapers, educational courses, can send and receive correspondence and has weekly visitation and phone privileges. (SOF ¶¶ 53-55, 59-60, 64.) He showers three times a week and has a sink and water in his cell to wash himself. (SOF ¶ 58.) His clothes and sheets are laundered once a week. (SOF ¶ 57.) Diet - Hampton receives three meals a day during the week and two meals a day on
weekends which consists of 2800 calories. (SOF ¶¶ 61-62.) Commissary privileges are

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limited to hygiene items and clothing, except during the month of December. (SOF ¶¶ 57,

63.) Lighting - All cells within SMU II are substantially identical. (SOF ¶¶ 65-68.) Each cell has a security night light consisting of a seven (7) watt fluorescent bulb2 which is comparable to a child's night light located over the sink. (SOF ¶¶ 68-76.) While inmates are not allowed to cover their entire face while they are sleeping, they are permitted to shield their eyes from the light. (SOF ¶ 72.) The light measurements at night in the bed area range from .20 to .33 foot candles. (SOF ¶¶ 7, 77-85.) Exercise - Attached to each pod is an area measuring twenty-three feet long and eleven feet wide, and eighteen foot high walls with a top covered in a steel fencing (inmate can see the sky and is exposed to the elements) used on a rotating schedule for outdoor exercise such as calisthenics, running, walking or playing handball. (SOF ¶¶ 89, 90-93.) During exercise time inmates wear either prison-issued clothing or sweats purchased from the commissary. (SOF ¶ 57.) Inmates are also permitted to exercise in their cells. (SOF ¶ 88.) Prior to December 29, 2005, SMU II inmates were provided a maximum of three hours per week in the outdoor exercise area. (SOF ¶ 87.) Effective December 29, 2005, inmates housed in the SMU II are provided exercise for six (6) hours each week on three different days of the week for two hour increments. (SOF ¶ 87.) Medical Treatment - SMU II inmates have access to the same medical, dental and mental health services as the general population. (SOF ¶¶ 94, 96-97.) As documented in the Declaration of Dr. Sharp, substantial medical testing, evaluation and treatment have been provided to inmate Hampton from as early as 1998 and specifically from September

The socket that the seven watt security bulb occupies can not tolerate a higher watt bulb. (SOF ¶ 86.)

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2001 to the present for back pain, abdominal pain, hernias, and weight loss, along with a variety of other complaints.3 (SOF ¶¶ 95, 98-99.) For example, between September 2001 and October 2003, Hampton initiated contact with SMU II medical staff on 53 occasions and he was seen by medical personnel no less then 47 times for those complaints. (SOF ¶¶ 100-109.) From 2003 to the present, Hampton was seen by the nursing staff on 15 occasions for various ailments. (SOF ¶¶ 110, 111, 114, 118, 120-121, 127, 131, 133, 135, 139, 144, 156.) He was seen by his Health Care Provider no less than 21 times for these ailments. (SOF ¶¶ 113, 115, 119, 122-124, 128-130 132, 136, 138, 140, 145-147, 149, 153-154, 158-159.) In addition, he received multiple medications or changes in his medications due to these ailments. (SOF ¶¶ 111, 114, 116, 118-122, 124-127, 130-131, 133-134, 135, 137, 139-144 146, 148, 153154, 156.) Hampton also received a bed wedge and additional abdominal binders. (SOF ¶¶ 112-113, 115-116, 128, 137.) Multiple tests were ordered to include: ultrasounds; lab
tests; blood tests; x-rays; Gastrointestinal (GI's); and, an Esophagogastroduodenoscopy

(EGD). (SOF ¶¶ 117, 123, 129, 140, 150-152, 157.) He has also received consultations for
neurosurgery evaluation and for general surgery to repair incisional hernias, which was denied by Medical Review Committee on February 14, 2006. (SOF ¶¶ 153, 155.) He is awaiting the results from his EGD. (SOF ¶ 157.) He has received five outside consultations since April

2003, all which resulted in normal findings. (SOF ¶ 160.) Hampton's medical issues are well documented and adequately treated. (SOF ¶¶ 161, 162.) He receives the same care he would receive if he were in general population and his medical care meets or exceeds the applicable standards of the medical community. (SOF ¶¶ 162-164.)

While Hampton complains that he failed to receive appropriate treatment from February 8, 1999, those claims are barred by the statute of limitations and is discussed supra. Further, the review focused solely on the issues of back pain, abdominal pain, hernias, and weight loss. Case 2:03-cv-01706-NVW Document 59 Filed 07/27/2006 Page 5 of 17

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III.

LEGAL ARGUMENT A. Summary Judgment Standard

Rule 56(c) of Fed. R. Civ. P. "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323. 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. v. Zenith Radio, 475 U.S. 574, 585-88 (1986), Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Summary judgment is proper, therefore, 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 at trial. See Celotex, 477 U.S. at 323. Due Process Prior to SMU II Confinement - The Due Process Clause of the
Fourteenth Amendment prohibits the states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Determination of a due process violation, involves a two-step analysis: (1) whether the inmate possesses a liberty interest with which the State has interfered (Sandin v. Conner, 515 U.S. 472 (1995)); and, (2) whether the interference was accompanied by sufficient procedural and evidentiary safeguards (See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). In Wilkinson v. Austin, 125

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S. Ct. 2384, 2394-98 (2005), the Court held that the combined conditions of confinement in Ohio's Supermax facility were sufficiently atypical to give rise to a state-created liberty interest. SMU II conditions are similar to those in Wilkinson, and as such, Hampton possesses a liberty interest in avoiding placement in SMU II. Hampton's confinement in SMU II satisfies the procedural and evidentiary safeguards required. An inmate's private interest in remaining free from super-max incarceration is not comparable to "the right to be free from confinement at all." Wilkinson, 125 S.Ct. at 2395. The interest must be evaluated "within the context of the prison system and its attendant curtailment of liberties." Id. The difference between the conditions of confinement in supermax may be substantially different than those of other prisoners, however they are less marked and therefore require less "process' than an initial criminal conviction. Id. The Wilkinson Court concluded that Ohio's procedures which provided notice to the inmate of the factual basis leading to consideration for super-max placement, a fair opportunity for rebuttal, a statement of the reasons for placement, and a review process for any placement decision, were sufficient to safeguard the inmate's interest. Id. at 2394-98. However, the dispositive question is whether Hampton received the process due him prior to his transfer to SMU II. The ADC's STG policy provides the procedures as outlined in Wilkinson, prior to placement in SMU II and Hampton admits he was afforded the process. (SOF ¶¶ 32-35, 45-47.)

Further, the Supreme Court made clear that where, as here, the State's interest implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979), and Hewitt v. Helms, 459 U.S. 460 (1983), provide the appropriate [procedural due process] model. Wilkinson, 125 S.Ct. at 2397-98. ADC's STG policy provides the process due under both Greenholtz and Hewitt. (SOF ¶¶ 32-35, 45-47.)

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Due Process During SMU II Confinement - Hampton's continued confinement is
accompanied by the proper procedural and evidentiary safeguards.4

When inmates are

housed in a more confined environment, prison officials must periodically review the inmate's confinement. Hewitt at 477 n. 9. Segregation may continue for as long as one year without a review. Toussaaint v. McCarthy, 801 F.2d, 1080 at 1101 (9th Cir. 1986). While the Ninth Circuit stated that yearly review may be insufficient, the Court did not take a position as to the number or frequency of reviews required. Id.
No "additional evidence or statements" are necessary to justify continued segregated confinement. See Hewitt, 459 U.S. at 477 n. 9 ("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 officials' general knowledge of prison conditions and tensions, which are singularly unsuited for `proof' in any highly structured manner"); see also Madrid v. Gomez, 889 F.Supp. 1146, 1277-79 (N.D. Cal. 1995, mandamus denied, 103 F.3d 828 (9th Cir. 1996), and cert. denied, 520 U.S. 1230 (1997) (rejecting argument that at some point there is no longer "some evidence" to retain an inmate in the SHU, despite the absence of debriefing, where the inmate has not engaged in any prison gang activity and there is no new evidence confirming the inmate's continued association with the prison gang).

Rather, 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
Hampton asserts in his Amended Complaint that debriefing violates his due process rights. However, he fails to identify the liberty interest that is implicated. No liberty interest exists in avoiding the label or name of snitch. Because Hampton does not possess a liberty interest in avoiding this label, the Defendants will not address the debriefing as a due process issue. While some inmates have asserted that debriefing was a form of retaliation in violation of the Eighth Amendment right to be free from excessive force, Hampton's retaliation claim was dismissed by the Court on September 3, 2003, for failure to exhaust his administrative remedies. (SOF ¶ 2.) Case 2:03-cv-01706-NVW Document 59 Filed 07/27/2006 Page 8 of 17
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to confine the inmate to administrative segregation ­ and on the officials' general knowledge of prison conditions and tensions, which are singularly unsuited for `proof' in any highly structured manner." Hewitt, 459 U.S. at 477 n. 9. The ADC policy provides that STG members are reviewed by the Institutional Classification Committee ("ICC") every 180 days or in person yearly for those inmates who
have "no change" in their classification scores as outlined in DO 801, Inmate Classification.

(SOF ¶¶ 23, 61.)

Prior to each annual re-classification review, the inmate receives written

notice; has the opportunity to appear at the hearings; can call relevant witnesses; can remain silent; can receive a finalized copy of the ICC's findings; and, can appeal any classification errors or overrides to the Administrator for Offender Services Bureau. (SOF ¶ 26.) Nothing further is required to comport with procedural due process. See generally Wilkinson, 125 S. Ct. 2384 (2005).

Substantive Due Process (Conditions of Confinement) - To comport with substantive due process, a deprivation of liberty must be supported by "some evidence in the record." Superintendent Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). The "some evidence" standard is "minimally stringent." Cato, 824 F.2d at 705. "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. (quoting Superintendent, 472 U.S. at 455-56) (emphasis in Cato). Part of the reason for this low standard is "the wide-ranging deference [courts must accord] to prison administrators `in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.'" Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)), cert. denied, 481 U.S. 1069 (1987).
The standard is more than met in this case. Hampton was validated as a member of the STG Aryan Brotherhood based on at least five pieces of evidence. (SOF ¶ 46.) See Bruce v.

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Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003) (any one of the three pieces of evidence relied upon would have sufficed to support inmate's validation as a gang member); e.g., Wolff v. Hood, 242 F.Supp. 2d 811 (N.D. Cal. 2002); Toscano v. Gomez, 1996 WL 571483 (N.D. Cal. Sept. 30, 1996, Aff'd., 122 F.3d 1074 (9th Cir. 1997)). Due Process (Parole) - "The fourteenth amendment prohibits the deprivation of liberty or property without due process of law." Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985). A due-process claim is cognizable when there is a recognized liberty or property interest at stake. Id. (citing Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972)). The liberty interest can arise from the Due Process Clause itself or from state law. Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). A liberty interest arises from the Due Process Clause when a prison's actions alter the terms of a sentence. Sandin v. Conner, 515 U.S. 472, 480 (1995). The Due Process Clause alone does not give prisoners a liberty interest in their conditions of confinement. Id. at 480. Various actions that prison officials take for security and administrative reasons fall "within the expected perimeters of the sentence imposed by a court of law." Id. at 485; see also Hewitt v. Helms, 459 U.S. 460, 468 (1983) (holding that the Due Process Clause does not create a liberty interest in remaining free of administrative segregation); Hernandez v. Johnson, 833 F.2d 1316, 1318 (9th Cir. 1987) (holding that a prisoner has no constitutional right to a particular classification status). Hampton asserts that because he is confined in SMU II that he is not eligible for parole. While it is possible that Hampton has a state-created liberty interest in seeking parole, (See A.R.S. § 31-411 et. seq.) there is no prison regulation prohibiting his parole eligibility based on the fact he is a validated STG member or confined in SMU II. Hampton's parole eligibility date is April 3, 2011. (SOF ¶¶ 10 - 12.) Cruel and Unusual Punishment Claim - The Eighth Amendment is not a basis for broad prison reform; it requires neither that prisons be comfortable, nor that prisoners be

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provided every desirable amenity.

Rhodes v. Chapman, 452 U.S. 337, 349 (1981).

Although prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety, routine discomfort or inconvenience does not constitute a constitutional deprivation under the Eighth Amendment. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). In addition, the "circumstances, nature, and duration of a deprivation of [ ] necessities must be considered in determining whether a constitutional violation has occurred." Id. To state an Eighth Amendment cruel and unusual punishment claim, Hampton must establish that Defendants' "act[s] or omission[s] . . . result[ed] in `the denial of the minimal civilized measure of life's necessities'" and that the Defendants were "deliberately indifferent" to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The first objective component requires that the Defendants denied Hampton "life's basic necessities." Id. at 832. The second subjective component requires that the Defendants knew of and disregarded an excessive risk to Hampton's health or safety. Id. at 837. Neither requirement is satisfied in the instant case. Eighth Amendment (Totality of Conditions) ­ Hampton alleges that unrelated conditions (i.e. virtually complete isolation; constant lighting; limited exercise opportunities; denial of food; educational and vocational programs; hygiene, recreational activities; and, humiliating treatment) taken together, amount to cruel and unusual punishment. (SOF ¶ 3.) However, a "number of unrelated conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation." Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). Related conditions are those that combine to deprive a prisoner of a discrete basic human need. Hoptowit v. Ray¸ 682 F.2d 1246, 1247 (9th Cir. 1982). Hampton fails this test. Eighth Amendment (Objective Test) - Hampton fails to satisfy the first requirement because he cannot establish that he was denied life's basic necessities. In

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terms of "life's necessities," Hampton, like all inmates housed in the SMU II, has certain restrictions upon his rights and privileges. (SOF ¶¶ 52-64.) These restrictions, however, do not rise to the level of constitutional violations as these are the reasonable necessities of running a maximum security facility. Isolation - While housed in the SMU II, Hampton has limited communication
privileges. (SOF ¶¶ 52, 54, 56, 59, 60.) Because Hampton is not barred from these various forms of communication, there is no violation.

Cell Lighting ­ Hampton's complaints of cell lighting are exactly the same as the STG inmates confined in SMU II raised in Baptisto v. Schriro, 2006 WL 798879 (D. Ariz. March 28, 2006). In Baptisto, this Court held the lighting conditions at SMU II (constant cell illumination ­ reduced at night) is reasonably related to a legitimate penological interests of staff and inmate security and does not violate the Eighth Amendment. Id at *28-*31. Exercise - Hampton's complaints related to out of cell exercise are also identical to the exercise claim raised by the STG inmates confined in SMU II in Baptisto. In Baptisto, this Court held that the limitations on the outdoor exercise do not constitute cruel and unusual punishment under the Eighth Amendment. Id at *31-*35. Diet - Hampton alleges that he is on a special, low calorie diet. (Dkt. 49 at p. 4.) The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health. See Le Maire, v. Maass., 12 F.3d 1444, 1445-46 (9th Cir. 1993). Again, Hampton's nutrition claims are identical to the nutrition claims raised by the STG inmates confined in SMU II in Baptisto. In Baptisto the Court held that the nutritionally-balanced 2,800 calorie per day diet provided at SMU II is constitutionally adequate in light of the sedentary lifestyle of the inmates confined within a super-max prison. Id at *26-*28. Educational and Vocational Programs - Hampton asserts that he is denied rehabilitation opportunities and other activities. (Dkt. 49 at p. 4.) "[I]dleness and lack of

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programs are not Eighth Amendment violations . . . There is no constitutional right to rehabilitation." See Hoptowit, 682 F.2d at 1254-55; Toussaint v. McCarthy, 801 F.2d, 1080, 1106-07 (9th Cir. 1986). See also (SOF ¶¶ 64.)

Hygiene - Hampton asserts he is only permitted three showers a week and denied winter clothing. (Dkt. 49 at p. 5.) Hampton is allowed three showers a week as well as admits to cleaning himself with the use of the sink and water in his cell. (SOF ¶ 64.) His
clothes and bedding are also laundered weekly. (SOF ¶ 63.) He can purchase sweats from the inmate store to wear during his outdoor exercise time in the winter. (SOF ¶ 57.) There is no binding precedence in this circuit holding that the hygiene opportunities Hampton is unconstitutional.

Restricted Personal Liberties - Hampton asserts that his personal liberties are restricted in that he has access to few books, magazines etc... and not permitted to purchase playing cards from the commissary. (Dkt. 49 at p. 5.) This is not a constitutional violation. See Hoptowit supra. Security Measures - Hampton alleges he is subjected to humiliating treatment such as defecation watch and excessive shackling. (Dkt. 49 at p. 5.) Prison officials are allowed to shackle inmates that they deem as violent when they are outside of their cells as long as the officials are not "deliberately indifferent" to the inmate's "health and safety." See Keenan, 83 F.3d at 1091; Le Maire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (holding that the district court correctly ruled that an inmate's claim that shackling him while in the shower did not constitute cruel and unusual punishment). Eighth Amendment (Subjective Test) ­ Hampton cannot establish that any of the named Defendants knew of, and disregarded, an "excessive risk" to his health or safety. Knowledge of a mere possibility of potential harm does not satisfy the requisite knowing disregard of an excessive risk required to establish an Eighth Amendment violation. See Farmer, 511 U.S. at 843 (requiring the prison official to have disregarded a substantial

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risk of serious harm) (emphasis added). Because Hampton was not subjected to a serious risk of harm, his claim must fail. Lack of Physical Injury - The deliberate indifference standard does not "require prisoners to suffer physical injury before obtaining court-ordered correction of objectively inhumane prison conditions." Farmer, 511 U.S. at 845. However, Hampton fails to show that he was subjected to a risk of either significant injury or the unnecessary and wanton infliction of pain. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). Eighth Amendment (Medical) ­ The law governing Eighth Amendment deliberate indifference to medical needs is well established. A defendant must act with "deliberate indifference to [Plaintiff's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The defendant must act with knowledge of a substantial risk of serious harm to the plaintiff and fail to take reasonable measures to abate that harm. Farmer, 511 U.S. at 847. The alleged constitutional deprivation must be, "objectively, `sufficiently serious,'" in that the official's "act or omission must result in the denial of `the minimal civilized measure of life's necessities.'" Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) & Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). "Mere negligence is insufficient for liability. . . . [T]he official's conduct must have been `wanton.'" Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002). Most importantly, "[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a section 1983 claim." Franklin v. State of Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). In response to his complaints, ADC medical staff provided Hampton numerous xrays to determine the extent of any injury, received a bed wedge for the back pain, and received multiple medications to reduce the back pain. (SOF ¶¶ 9, 100, 103,110-111, 114115, 127, 139-141, 145, 147, 152, 154, 160, 162.) MRI lumbar scans were ordered and the results indicated no significant findings and continue to support a non-surgical solution to

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his back problem. (SOF ¶¶ 152, 162.) Hampton received multiple abdominal binders, hernia belts, and medications for his hernias. (SOF ¶¶ 103, 112-113, 116, 128, 132.) His hernias were diagnosed as reducible and do not require surgical intervention. (SOF ¶¶ 104, 113, 161.) Hampton also received multiple medications, blood tests, ultrasounds, and outside consultations for numerous issues. (SOF ¶¶ 103, 106-107, 116, 122-124, 126, 129, 151, 160.) Hampton simply disagrees with the treatment plan provided by his Health Care Provider, who he failed to even name as a Defendant. A difference of opinion about the course of treatment between an inmate and prison medical providers is insufficient to form the basis for a § 1983 claim. Franklin, 662 F.2d at 1344; see also Sanchez, 891 F.2d at 242. While Plaintiff clearly disagrees with his treating physicians (not Defendants)

regarding his medical treatment, he does not allege any actions on behalf of Defendants upon which to base a medical indifference claim. Lack of Affirmative Involvement (Eighth Amendment Medical) - Hampton's medical claim fails for lack of affirmative involvement. Hampton must allege he suffered specific injury as a result of the specific conduct of an individual prison official, and show an affirmative link between the injury and the conduct of Defendants. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir. 1984); See Jones v. Community Redevelopment Agency, 733 F.2d 646. 649-650 (9th Cir. 1984) Any notices, inmate letters, grievances, grievance appeals, alleged correspondence to, or communication with Defendants after the alleged incident, are not sufficient to state a claim for 42 U.S.C. § 1983 relief. Subsequent knowledge or investigation, occurring "after the fact", is not a sufficient basis upon which to establish § 1983 liability. May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); see also

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King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Simply stated, Hampton cannot establish that Defendants ­ Director Ryan, Deputy Warden Luna, or Corrections Officer Barbara Schearer ­ were personally involved in his medical diagnosis or treatment, or that they directed, participated in, or had knowledge of the alleged misconduct at the time it occurred. Eighth Amendment Medical (Statute of Limitations) - Hampton's claim for damages based on 42 U.S.C. § 1983 is barred for charges incurred prior to September 30, 2003. Because Congress has not established a specific statute of limitations period

governing 42 U.S.C. § 1983, federal courts have borrowed the state's limitations period governing personal injury cases. Wilson v. Garcia, 471 U.S. 261, (1985). The limitation period for personal injuries in Arizona is two years. A.R.S. § 12-542 (1992). While Hampton filed his original Complaint on September 3, 2003, that Complaint did not allege any medical claims. (SOF ¶ 2.) On September 30, 2005, Hampton filed an Amended Complaint alleging for the first time an Eighth Amendment medical indifference claim for failure to receive proper medical treatment which do not relate back. See Rule 15(c), Fed. R. Civ. P. Thus, all medical claims based on incidents occurring prior to September 30, 2003 are barred by the statute of limitations. CONCLUSION For the reasons set forth herein, Defendants are entitled to summary judgment as a matter of law.

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RESPECTFULLY SUBMITTED this 27th day of July, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants Original and one copy filed this 27th day of July, 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
970999 V-2

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