Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

ROBERT L. STORRS, P.C.
Attorney At Law 45 West Jefferson, Suite 803 Phoenix, Arizona 85003-2317 State Bar No. 002224 Office: (602) 258-4545 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Mark E. Hampton, Plaintiff, vs. Charles Ryan, in his individual and official capacity, et al., Defendants. No. 03-CV-1706 PHX NVW PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND COMPLAINT

I.

Background Mr. Hampton is incarcerated in Arizona's "Supermax" prison, "SMU-II,"

unquestionably one of the restrictive environments within the United States. See generally Wilkinson v. Austin, __ U.S. __, 125 S.Ct. 2384 (2005) (describing rise of Supermax prisons in the United States, and the general conditions of confinement within such institutions). Mr. Hampton has been confined in SMU-II for over six years, and has no foreseeable hope of ever returning to general population or any lesser restrictive environment. As one can imagine, prosecution of a federal lawsuit within the confines of SMU-II is a difficult task. First, Mr. Hampton has no formal legal training. His access to legal materials in SMU-II is limited. He cannot conduct many of the basic functions required to

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prosecute a lawsuit, such as take depositions, interview witnesses, or the like. Moreover, the physical conditions within Mr. Hampton's isolated cell are not conducive for this activity. The temperature within Mr. Hampton's cell is never comfortable, usually exceedingly hot during the summer and unreasonably cold during the winter. See Plaintiff's Proposed Amended Complaint ¶ 15. Due to the constant lighting, sleep is difficult. Despite these restrictions, Mr. Hampton did file his federal complaint challenging his confinement in SMU-II in September of 2003. The State repeatedly references this date ­ suggesting that this litigation has been needlessly protracted ­ but fails to note that the State did not even answer Mr. Hampton's complaint until December of 2004, fifteen months after the complaint was filed, and that discovery did not even begin until the end of January of this year. Thus, the most important part of the case, the discovery phase, in which Mr. Hampton has the opportunity to obtain the background facts and evidence that would presumably prove his case, is only a few months old. The State's rush to judgment in this matter is interesting. While the State may be, or least have been, plagued with frivolous or questionable prisoner lawsuits, this certainly is not one of them. Within the past three months, the United States Supreme Court has issued an opinion directly relating to the very issues raised by Mr. Hampton, see Wilkinson, supra; another respected federal jurist had previously held (in a now vacated, but not overturned, decision), that the State's procedures involving SMU-II violate due process. See Koch v. Lewis, 216 F.Supp.2d 994, 997-98 (D.Ariz. 2001), vacated as moot, 399 F.3d 1099 (9 th Cir. 2005). The claims asserted by Mr. Hampton are serious, and deserve a fair airing and

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litigation, not the truncated and one-sided process urged by the State. Accordingly, Mr. Hampton urges this Court to grant his leave to amend the complaint. II. Discussion A. Standard of Review

The State's primary objection to Mr. Hampton's request to amend his complaint is that, according to the State, the amendment would be "futile." See State's Opposition, at p. 6. Although "[f]ederal policy strongly favors determination of cases on their merits and amendments to pleadings should be allowed with `extreme liberality'" Webb v. Fain, 2002 WL 31973729, *1 (D.Or. 2002) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir1981)), a motion to amend may be denied if the amendment is futile. Johnson v. American Airlines, Inc.., 834 F.2d 721, 724 (9 th Cir. 1987). However, "a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir.1988); see also Doe v. Nevada, 356 F.Supp.2d 1123, 1125 (D.Nev. 2004). In determining whether a proposed complaint is futile, the facts pleaded in the proposed amended complaint must be taken as true. See Doe, 356 F.Supp.2d at 1125 ("As denying a plaintiff's motion to amend due to the futility of the proposed amendment has the effect of granting a motion to dismiss the plaintiff's proposed claim, this Court construes all pleaded facts in the complaint as true and draws all inferences in favor of the plaintiff"). As set forth below, Mr. Hampton has alleged sufficient facts to withstand a motion to dismiss.1
1

The State cites to two cases from the Ninth Circuit, State of California on behalf of the California Dep't of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661 -3-

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B.

Mr. Hampton Has A Protected Liberty Interest In His Assignment To SMU-II.

The State asserts that Mr. Hampton does not have a liberty interest in his assignment to SMU-II. However, the State fails to cite the most recent Supreme Court pronouncement in this regard, Wilkinson, which holds unequivocally that Mr. Hampton does have such a liberty interest. Specifically, in Wilkinson, a unanimous Supreme Court held: For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP. Wilkinson, 125 S.Ct. at 2394-95 (emphasis added; citations omitted). Here, Mr. Hampton has alleged facts demonstrating that SMU-II is equally as harsh, if not more so, (9 th Cir. 2004), and Johnson v. American Airlines, 834 F.2d 721 (9 th Cir. 1987), in which the Ninth Circuit indicated that "[f]utility" includes the "inevitability of a claim's defeat on summary judgment." Neville Chemical, 358 F.3d at 673. The State, however, seems to suggest that these authorities transmogrify a motion to amend into the functional equivalent of a motion for summary judgment. For this amazing proposition, the State posits no authority. In the cases cited by the State, the procedural posture of the case was such that the record was sufficiently advanced that the district court could fairly determine whether an amendment would pass summary judgment muster. Here, in light of the fact that Mr. Hampton has effectively engaged in no discovery ­ the State objected to virtually all of his few written discovery requests ­ the record is devoid of the requisite factual basis to summarily deny the motion to amend. -4-

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than Ohio's supermax prison considered in Wilkinson. Thus, Mr. Hampton has pleaded sufficient facts to demonstrate his liberty interest in avoiding assignment to SMU-II.2 C. Mr. Hampton's Has Adequately Alleged A Due Process Claim Based Upon Ineligibility For Parole.

The State asserts that Mr. Hampton's eligibility for parole is not impacted by his assignment to SMU-II, an assertion contrary to Mr. Hampton's understanding (or, at least, that of his counsel). Nonetheless, the fact that the State's assignment of Mr. Hampton does not technically preclude parole begs the greater question of whether it effectively and in fact precludes parole. As the Supreme Court noted in Sandin v. Commer, 515 U.S. 472, 115 S.Ct. 2293 (1995), State action may violate due process where "the State's action will inevitably affect the duration of [an inmate's] sentence." Id. at 487, 115 S.Ct. at 2302. Mr. Hampton respectfully submits that discovery will show that assignment to SMU-II has the direct effect of eliminating an inmate's potential for parole. As such, Mr. Hampton's assertions in this regard are not futile.3

2

Defendants assert that Mr. Hampton's assignment to SMU-II does not impact his eligibility for parole (referencing solely the affidavit of ADOC's Time Management Computation Specialist), the only fact that distinguishes Wilkinson from the present matter. Nonetheless, in light of the many other facts alleged by Mr. Hampton, it is clear that his confinement in SMU-II is "atypical" of the penal environment, creating the liberty interest, even if his parole eligibility is not technically impacted. However, Mr. Hampton would further note that it is his understanding that SMU-II does impact his parole eligibility, and further, that even if not technically impacted, the assignment realistically precludes any request for parole. It bears note that Mr. Hampton's assertion in this regard was not necessarily an independent claim, but merely one of the many factors this Court must consider in determining the nature and extent of Mr. Hampton's protected liberty interest.
3

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D.

Mr. Hampton's Assertion That His Due Process Rights Were Violated When He Was "Validated" As A Member Of A Security Threat Group Are Not Time-Barred.

The State "validated" Mr. Hampton as a member of a "Security Threat Group" in 1998, and formally transferred him to SMU-II in February of 1999. Based upon the fact that Mr. Hampton did not file his present lawsuit until September of 2003, the State asserts that his due process claim is barred by the two-year statute of limitations. The State's contention, however, is incorrect due to the "continuing violation" caused by the State's denial of due process in 1998 and 1999. See, e.g., Rollins v. Lewis, 2002 WL 318332, *4 (N.D.Tex. 2002) (allegation that defendants had misclassified plaintiff as a sex offender and so treated him on parole constituted a continuing violation, tolling the statute of limitations). Moreover, the "continuing violation" is not simply that Mr. Hampton remains housed in SMU-II, but that his only way out is to ratify the incorrect and procedurally deficient determination made in 1998. See Plaintiff's Proposed Amended Complaint, at ¶¶ 19-21. According to the State's regulations, the only way an inmate can "earn" release from SMU-II is to both (1) renounce membership in the Security Threat Group, and (2) "debrief," which includes providing information regarding the STG and its members. A "false positive" in the initial classification procedure therefore dooms the impact inmate forever.4 In this regard, Mr. Hampton's claims differ from cases which have held that a "continuing violation" does not include the "continued consequences" of an earlier, discrete due process violation. See, e.g., McGregor v. Louisiana State University Bd. of Supervisors, 3 F.3d 850, 867 (5th Cir.1993) (plaintiff cannot use the continuing violation theory to resurrect claims about due process, concluded in the past, even though its effects persist). Here. The due process violation continues and is resurrected each time Mr. Hampton is "required" to ratify the incorrect result as the only way he can obtain
4

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In Wilkinson, the Supreme Court reiterated that "the risk of an erroneous placement" remains one of the fundamental factors in assessing a procedural due process claim, i.e., the risk of a "false positive." See Wilkinson, 125 S.Ct. at 2395. Here, the risk was unquestionably high ­ the evidence against Mr. Hampton consisted almost exclusively of claims that Mr. Hampton socialized with Aryan Brotherhood members before any formal pronouncement by ADOC that such brief and social association could and would be used against him. Mr. Hampton was not, and is not, a member of the Aryan Brotherhood. However, based upon flimsy evidence, he is compelled to spend the rest of his life in the harshest penitentiary in the United States, with his only hope for release being to "renounce" the false finding, and to "implicate" other members of a group he never belonged to. The State's reliance upon Bruce v. Ylst, 351 F.3d 1283 (9 th Cir. 2003), a decision predating Wilkinson, is misplaced. Indeed, if anything, Bruce highlights the due process infirmities in the present matter. Specifically, in Bruce, the plaintiff challenged his classification as a gang member, resulting in a higher security housing assignment. However, unlike the present matter, there was no contention that the plaintiff was sent to a "supermax" prison where life was "atypical" of a typical prison experience, resulting in a specific liberty interest. See Wilkinson, supra. For that reason, the Ninth Circuit denied the plaintiff's due process claim, noting that "the assignment of inmates within the California prisons is essentially a matter of administrative discretion." Id. at 1287. However, as the Supreme Court noted in Wilkinson, an assignment to a supermax prison is far more than release from SMU-II.

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simply a classification to a specific institution, and an inmate has a specific liberty interest in avoiding assignment to a supermax prison. The assignment of an inmate to a supermax prison is not simply a matter of "administrative discretion," but one requiring specific procedures and safeguards to ensure that only the truly deserving receive such a fate. Moreover, the evidence that the plaintiff in Bruce belonged to an outside street gang was far more compelling than that resulting in Mr. Hampton's SMU-II assignment in the case at hand. Specifically, the Ninth Circuit noted that the Los Angeles Sheriff's Department had determined that the plaintiff was an "associate" of the gang, a probation report indicating the plaintiff's involvement in the gang, and a statement by a confidential prison informant. Id. at 1287. This evidence is far more compelling than the circumstantial and questionable evidence used to "validate" Mr. Hampton in the case at hand. E. Mr. Hampton Has A Due Process Right To Fair Review Procedures Regarding His SMU-II Assignment.

The State acknowledges that Mr. Hampton has a due process right to "periodic reviews after his placement in SMUII," see State's Opposition, at p. 11, but claims that this right is adequately protected by the periodic opportunities for Mr. Hampton to renounce his non-existent membership in the Aryan Brotherhood and to "debrief" regarding this organization he knows little, if anything, about. Notably, this periodic review process differs dramatically from that described in the Wilkinson decision, and is intrinsically linked with the initial assignment decision. Thus, in many respects, for the reasons set forth above, the adequacy of the "subsequent" periodic reviews is only as meaningful as the initial classification decision. The two cannot be divorced, as the State would have this Court do. F. Mr. Hampton's Complaint Does Not Prejudice Defendants. -8-

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Finally, the State suggests that it would be "prejudiced" by permitting Mr. Hampton to amend his complaint. Notably, the State has indicated that it has taken Mr. Hampton's deposition and was prepared to file a summary judgment motion. See State's Opposition, at p. 15. Notably, Mr. Hampton has not taken any depositions, has been deprived of the ability to interview any witnesses, and only has limited responses to written discovery requests, in that the State objected to virtually all of Mr. Hampton's requests, and refused to respond to many, alleging that they exceeded the "maximum" number of requests.5 Simply put, the "prejudice" to the State is that, if amendment is granted, it will actually have to litigate this matter on the merits. This, by definition, is not prejudice. Cf. Harris v. Pulley, 852 F.2d 1546, 1558 (9 th Cir. 1988) (discussing "prejudice" from delay in context of habeas petitions, noting that prejudice generally requires some actual impediment to fairly defending against a claim). The only "actual" prejudice alleged by the State is that it has already taken Mr. Hampton's deposition and, presumably, without stipulation, could not redepose him on the new or supplemental claims. However, Mr. Hampton is willing to submit to an additional or Notably, the State's one-sided and limited method of responding to discovery requests was expressly disapproved of by a federal court in Allahverdi v. Regents of University of New Mexico, ___ F.R.D. ___, 2005 WL 1661508 (D.N.M. July 11, 2005). In Allahverdi, the court held that:
5

When a party believes that another party has asked too many interrogatories, the party to which the discovery has be propounded should object to all interrogatories or file a motion for protective order. The responding party should not answer some interrogatories and object to the ones to which it does not want to respond. By answering some and not answering others, the Defendants waived this objection. Id. (emphasis added). -9-

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supplemental deposition and, as such, any "prejudice" from the alleged inability to redepose Mr. Hampton is eliminated. With respect to "re-opening" discovery, while this case may have been pending since September of 2003, the window for actual discovery was extremely small, lasting only from late January through June of this year, and to be conducted by Mr. Hampton under very unfavorable conditions. Under the circumstances, re-opening of discovery will not work any sort of undue hardship on the State; rather, the State will simply have to engage in the discovery that is normal and reasonable in this type of matter. III. Conclusion Mr. Hampton has only recently obtained counsel. The issues in this case, involving the constitutionality of Arizona's "supermax" prison system, are very important. It is imperative that these issues be decided on the merits. The State has advanced no reason to deviate from the liberal standard governing amendment of pleadings, and Mr. Hampton would urge this Court to permit him to amend his complaint accordingly.6 RESPECTFULLY SUBMITTED this 16 th day of August, 2005. s/Robert L. Storrs

By __________________________________ Robert L. Storrs Attorney for Plaintiff

The State has argued that Classification Officer Shearer should not be named with respect to Mr. Hampton's "cruel and unusual" punishment claim, see State's Opposition, at pp. 13-14, a contention with which Mr. Hampton has no dispute.
6

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CERTIFICATE OF SERVICE ORIGINAL of the foregoing electronically filed this 16th day of August, 2005 with: Clerk of the Court United States District Court 401 West Washington Street Phoenix, Arizona 85003 Honorable Virginia Mathis United States District Court 401 West Washington Street Phoenix, Arizona 85003 And e-mailed to: Colleen M. Auer, Esq. Office of the Attorney General 1275 West Washington Street Phoenix, Arizona 85007

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