Free Response in Opposition to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General COLLEEN M. AUER Assistant Attorney General State Bar No. 014637 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7698 Fax: (602) 542-7670 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) OPPOSITION TO PLAINTIFF'S MOTION TO AMEND COMPLAINT

Defendants1 oppose Plaintiff's Motion to Amend Complaint on the grounds that the proposed amendments are futile, prejudicial to Defendants and will unduly delay this litigation. This opposition is based on the following Memorandum of Points and Authorities, the Affidavit of Susan Kaye and Hampton's deposition testimony. /// /// ///

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Dora Schriro, Conrad Luna and Barbara Shearer.
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MEMORANDUM OF POINTS AND AUTHORITIES I. RELEVANT FACTS

Procedural History Plaintiff, Mark E. Hampton, filed his pro per civil rights complaint in this matter on September 3, 2003 seeking declaratory and injunctive relief against Defendants Ryan, Luna and Shearer. The Court substituted ADC Director Dora B. Schriro for defendant Ryan on July 9, 2004.2 On September 20, 2004, Defendants moved to dismiss the complaint on exhaustion grounds. The Court granted the motion to dismiss in part, dismissing Count III of Hampton's complaint.3 Defendants Answered remaining Counts I and II on December 30, 2004. The Court issued its scheduling order on January 6, 2005 setting, inter alia, the following deadlines: discovery cutoff ­ March 31, 2005; deposition cutoff ­ April 29, 2005; dispositive motion cutoff ­ June 30, 2005; joint pretrial statement cutoff ­ August 31, 2005.4 Hampton was deposed on April 15, 2005.5 Defendants responded to discovery on March 14, 2005. The Court set a discovery conference for June 2, 2005.6 On May 31, 2005, Robert Storrs agreed to represent Hampton in the case, entered an appearance and moved to continue the discovery conference until he received pleadings in the case and the discovery at issue. The discovery conference was reset for July 11,

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7/9/04 Order at 5-6. 12/14/04 Order at 4. 1/6/05 Order at 1-2. Amended Notice of Deposition filed March 11, 2005.

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2005 at 1:30 p.m.7 The deadline for dispositive motions was enlarged, on Defendants' motion, to August 29, 2005. Prior to the discovery conference, Hampton's counsel indicated a desire to proceed with a motion to amend and additional discovery requests. At counsels' request, the July 11, 2005 discovery conference was converted into a status hearing on the issues of amendment and further discovery. The Court gave Hampton's counsel ten days to file a Motion to Amend and the parties forty-five days to propound additional discovery on issues "now before the Court."8 The Motion to Amend was filed July 26, 2005. Original Allegations In his original complaint, Hampton pled three counts against defendants Dora Schriro, Conrad Luna and Barbara Shearer in their individual and official capacities.9 In Count I (pled against all defendants), Hampton alleges that he was placed in SMUII on February 8, 1999 as a member of a security threat group ("STG") and continues to be confined indefinitely in SMUII without "meaningful reviews" in violation of his due process rights.10 In Count II (pled against Schriro and Luna), Hampton alleges that the conditions of his confinement in SMUII violate the Eighth Amendment prohibition against cruel and unusual punishment.11 In Count III (pled against all defendants), Hampton alleges that Defendants confined him to SMUII in retaliation for the exercise of his

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5/9/05 Order. 6/3/05 Order. 7/11/05 Civil Minutes. Complaint at 2. Id. at 4-4B.

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constitutionally-protected right not to incriminate himself.12 The Court dismissed Count III.13 Hampton seeks declaratory and injunctive relief on his claims.14 Proposed Amended Allegations In the proposed, amended complaint, Hampton, through counsel, seeks to add: (1) a due process claim based on a liberty interest in his classification;15 (2) a due process claim based on alleged ineligibility for parole while housed in SMUII and related factual allegations;16 (3) a due process claim based on the procedures used to classify Hampton as a STG member and transfer him to SMUII and related factual allegations;17 (4) a due process claim based on the relief provided by the review procedures in SMUII ­ i.e., an inmate must debrief before he can be released from SMUII; (5) a due process claim based on the conditions of confinement in SMUII;18 and (6) an Eighth Amendment medical deliberate indifference claim based on alleged failure to treat Hampton's serious medical needs and related factual allegations.19 He also seeks to add a request for: (1) monetary damages including pre-judgment and post-judgment interest;20 (2) a declaration that the procedures by which Hampton was

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Id. at 5-5A. Id. at 6-6A. 12/14/04 Order at 4. Complaint at 7. Amended Complaint at ¶ 25. Id. at ¶¶ 19, 23, 25. Amended Complaint at ¶¶ 8-14, 19-20, 25-26. Id. at ¶¶ 29, 34. Id. at ¶¶ 17, 18, 33.

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found to be a member of a STG violate due process;21 (3) a declaration that the conditions of confinement in SMUII violate due process;22 (4) a declaration that the denial of adequate medical care in SMUII violates the Eighth Amendment;23 and (5) injunctive relief in the form of an order requiring that Hampton receive reasonable medical care while he is housed in SMUII.24 Finally, he seeks to add former ADC Director Charles Ryan as a defendant in lieu of current ADC Director Dora Schriro.25 And he seeks to add Shearer as a defendant on the cruel and unusual punishment claim in Count II.26 With the exception of Hampton's sentencing information and a request for attorneys' fees and costs under § 1988,27 the remaining allegations of Hampton's Amended Complaint parrot the allegations in Hampton's original complaint. · Parties ­ Compare Amended Complaint ¶¶ 1-4 with Complaint at 1-2; · Jurisdiction and Venue ­ Compare Amended Complaint ¶¶ 5-6 with Complaint at 1; · SMUII Conditions of Confinement ­ Compare Amended Complaint ¶¶ 1516, 32, 34 with Complaint at 5-5A. · Reviews Received After SMUII Confinement ­ Compare Amended Complaint ¶¶ 19-22, 27 with Complaint at 4-4B.
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Id. at 8-9. Id. at 8. Id. Id. at 9. Id. Id. at ¶ 2. Id. at 9.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 II. A.

· Exhaustion of Administrative Remedies ­ Compare Amended Complaint ¶¶ 30, 35 with Complaint at 4, 5. · Relief ­ Compare Amended Complaint at 8, 9 with Complaint at 7. ARGUMENT HAMPTON'S MOTION TO AMEND HIS COMPLAINT SHOULD BE DENIED AS FUTILE. "`[T]he grant or denial of an opportunity to amend is within the discretion of the District Court," and denial of leave to amend is appropriate if the amendment would be futile." State of California on behalf of the California Dep't of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661, 673 (9th Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "`[F]utility includes the inevitability of a claim's defeat on summary judgment.'" Id. (quoting Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987)). And "`futility alone can justify the denial of a motion to amend.'" Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (quoting Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003)). 1. Hampton's Due Process Claim Based on a Liberty Interest In His Classification Fails to State a Claim. As a convicted felon, Hampton "has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system .

18 . . . The Constitution does not . . . guarantee that [he] will be placed in any particular 19 prison. Meachum v. Fano, 427 U.S. 215, 224 (1976). Thus, Hampton has no liberty 20 interest to remain in a preferred facility within a state's prison system or to a particular 21 classification status for confinement purposes. Moody v. Daggett, 429 U.S. 78, 88 n. 9 22 (1976) (Inmates have no constitutional right to a particular classification status); Meachum, 23 427 U.S. 215 (Due Process Clause does not apply to the classification decisions of prison 24 25 26
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officials); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (a prisoner has no Id. at ¶ 7, 8-9.
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constitutional right to a particular classification status); Casey v. Lewis, 837 F.Supp. 1009, 1019 (D. Ariz. 1993) ("there is no liberty interest implicated in a prison's reclassification and transfer decisions."). Therefore, it would be futile to allow Hampton to amend his complaint to add a non-existent due process claim based on his classification. 2. Hampton's Due Process Claim Based on Ineligibility For Parole While In SMUII Is Meritless. SMUII confinement does not make Hampton ineligible for parole. See Exhibit 1, Affidavit of Susan Kaye at ¶ 9. To the contrary, STG-validated, SMUII inmates remain eligible for parole. Id. Further, SMUII confinement does not result in the loss of earned release credits or Parole Class III time and therefore does not affect sentence length. Id. at ¶ 8. SMUII inmates simply cannot have lost credits restored or Parole Class III time rescinded while they are confined in SMUII. Id. Therefore, it would be futile to allow Hampton to amend his complaint to add a due process claim based on the false premise that he is ineligible for parole while housed in SMUII. 3. Hampton's Due Process Claim And Request For Declaratory Relief Based on His Validation and Transfer to SMUII are Time-Barred and Meritless. Hampton proposes to amend his complaint to allege: that "the procedures by which [he] was classified as a member of a Security Threat Group and transferred to SMUII

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violated [his] due process rights. . . .";28 and to request a declaration that "the procedures by which he was found to be a member of a Security Threat Group violate due process."29 Hampton's proposed amendments are time-barred and meritless.

20 Hampton was validated as a gang member and subsequently transferred to SMUII 21 22 reason to know of the injury which is the basis for his action." Cabrera v. City of 23 24 25 26
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on February 8, 1999.30 A claim arises under federal law "when a plaintiff knows or has

Id. at ¶ 26. Id. at 8. Complaint at 4; Amended Complaint at ¶¶ 13-15.
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Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). This occurs when "a plaintiff has knowledge of the `critical facts' of his injury, which are `that he has been hurt and who has inflicted the injury.'" Bibeau v. Pacific Northwest Research Found., 188 F.3d 1105, 1108 (9th Cir. 1999), amended on denial of reh'g, 208 F.3d 831 (9th Cir. 2000) (quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)). In this case, Hampton knew the critical facts of his injury no later than February 8, 1999. 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"); Bibeau, 188 F.3d at 1108 (a plaintiff who did not actually know that his rights were violated will be barred from bringing his claim after the running of the statute of limitations, if he should have known in the exercise of due diligence.) The applicable statute of limitations for this § 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. § 12-541(l); Madden-Tyler v. Maricopa County, 189 Ariz. 462, 465-66, 943 P.2d 822, 825-26 (App. 1997) (two-year statute of limitations governs federal civil rights claims in state court). Thus, to preserve his Due Process claim regarding his validation and transfer to SMUII, Hampton had to file suit on or before February 8, 2001. However, Hampton did not file his original complaint in this case until September 3, 2003. Accordingly, his proposed due process claim is time-barred. Further, Hampton has testified that he received all of the process due him under Wilkinson v. Austin, prior to transfer SMUII. 125 S.Ct. 2384 (2005). In this recently decided case, the Supreme Court specifically addressed the issue of what, if any, process was due an inmate prior to permanent placement in a Supermax facility like SMUII. After finding that the combined conditions of confinement in Ohio's Supermax facility were sufficiently atypical to give rise to a state-created liberty interest, the Court concluded that

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Ohio's procedures which provided notice to the inmate of the factual basis leading to consideration for Supermax 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 interests. Id. at 2394-98. ADC's STG policy provides these same procedures prior to placement in SMUII. Exhibit 2, Hampton Depo. at 39-50. 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. Greenholtz requires that inmates being considered for release on parole have the opportunity to be heard and notice of any adverse decision. 442 U.S. at 16. Hewitt requires that inmates being considered for transfer to administrative segregation receive some notice of charges and an opportunity to be heard. 459 U.S. at 473-76. ADC's STG policy provides the process due under both Greenholtz and Hewitt. And Hampton admits
that he received the process due under both Greenholtz and Hewitt. Exhibit 2, Hampton Depo. at 39-50. Thus, assuming arguendo SMUII confinement conditions are sufficiently atypical to give rise to a state-created liberty interest, ADC's STG policy afforded Hampton all of the procedural due process protections required by law prior to validation and SMUII confinement. 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) to argue otherwise is improper. Koch was vacated and therefore is of no precedential value and, in any event, Koch does not represent the law in the Ninth Circuit or elsewhere on the process required prior to Supermax placement. Rather, the Ninth Circuit's decision in Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003), which post-dates Koch and also involved indeterminate

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confinement of an inmate based on gang affiliation, serves as binding precedent on this Court. There, prison officials validated the plaintiff as a gang member 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. The decision to validate Hampton was admittedly supported by "some evidence in the record."31 The "some evidence" standard is "minimally stringent."32 "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board."33 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.'"34 This low standard is more than met in this case. See Amended Complaint at ¶ 12 (listing the evidence relied on to validate Hampton); Exhibit 2, Hampton Depo. at 50 (testifying to the evidence relied on to validate him as a group photograph, associations with Aryan Brotherhood members documented in two incident reports and his name on two lists found in Aryan Brotherhood member cells).

Thus, the decision to validate Hampton was supported by "some evidence in the record." See Bruce v. 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 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). See Amended Complaint at ¶ 12; Exhibit 2, Hampton Depo. at 50.
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Cato, 824 F.2d at 705. Id. (quoting Superintendent, 472 U.S. at 455-56) (emphasis in Cato).

Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
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gang member). And district courts, both before and after Bruce, consistently grant prison officials' motions for summary judgment where, as here, the officials point to evidence suggesting that the inmate is a member of a gang. See, 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); Harrison v. McGrath, 2004 WL 1465698 (N.D. Cal. June 21, 2004). Therefore, it would be futile to allow Hampton to amend his complaint to add a time-barred and meritless due process claim and request for declaratory relief based on his validation and transfer to SMUII. 4. Hampton's Due Process Claim Based on the Relief Provided By the Review Procedures in SMUII Fails to State a Claim. Hampton proposes to amend his complaint to allege that "the sole relief provided by the review procedures [in SMUII], requiring, among other things, that an inmate `debrief' and thereby be labeled as a snitch, violates both Mr. Hampton's substantive and procedural due process rights." Amended Complaint at ¶ 28. While Hampton has a right to periodic reviews after his placement in SMUII, he does not have a liberty interest, much less a due process right, to not have to renounce and debrief gang membership in order to reduce his classification scores. There is no legal basis for this assertion and Hampton cites none. To the extent Hampton is arguing that his continued confinement in SMUII should require proof of an actual act of misconduct, the law holds otherwise. See Hewitt, 459 U.S. at 477 n. 9 (there is no requirement of "additional evidence or statements" to justify continued segregated confinement); Madrid v. Gomez, 889 F.Supp. 1146, 1277-79 (N.D. Cal. 1995) (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).

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Hampton has already pled that he is denied meaningful reviews post-SMUII confinement.35 This proposed amendment adds nothing and is legally inaccurate. Therefore, it would be futile to allow Hampton to amend his complaint to add a nonexistent due process claim based on the relief provided by the review procedures in SMUII. 5. Hampton's Due Process Claim And Request For Declaratory Relief Based on the Conditions of Confinement in SMUII Fails to State a Claim. Hampton proposes to amend his complaint to allege that: "[t]he very conditions of confinement within the SMUII violate Mr. Hampton's substantive due process rights. . . ."36 He also seeks a declaration that: "the very conditions of confinement [in SMUII] violate due process."37 This is not a due process claim but rather an Eighth Amendment claim for cruel and unusual punishment already pled.38 Stated differently, confinement conditions do not violate due process, but rather, if those conditions are sufficiently atypical, they may give rise to a state-created liberty interest and procedural due process protections before an inmate can be placed in those confinement conditions. See discussion supra at II.A.3. Therefore, it would be futile to allow Hampton to amend his complaint to add a non-existent due process claim and request for declaratory relief based on the conditions of confinement in SMUII. 6. Hampton's Request For Monetary Damages Is Meritless. Hampton proposes to amend his complaint to add a request for monetary damages and pre-judgment and post-judgment interest.39 With the exception of alleged injuries

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stemming from medical deliberate indifference ­ proposed claims to which Defendants object40 ­ Hampton has not pled physical injury stemming from his validation, transfer and confinement in SMUII. As such, he has not pled a basis for damages in this case. (e) Limitation on recovery No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury. 42 U.S.C. § 1997e(e). The physical injury must be more than de minimis. Oliver v. Keller, 289 F.3d 623, 627-29 (9th Cir. 2002). Therefore, it would be futile to allow Hampton to amend his complaint to add a

9 meritless request for monetary damages. And ADC Director Schriro, not former ADC 10 Director Charles Ryan, is the proper defendant on the injunctive relief claims pled in the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 case. 7. Hampton Has Not Stated A Basis to Include Defendant Shearer in the Eighth Amendment Cruel and Unusual Punishment Claim. Classification Officer Shearer was not named in the original cruel and unusual punishment claim regarding the conditions of confinement in SMUII.41 Only ADC Director Schriro and Deputy Warden Ryan were named in that claim.42 In his proposed amendments to the Complaint, Hampton proposes to include Shearer in that claim, but does not plead any basis to show that Shearer, as a Classification Officer, has any
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Complaint at 5-5A. Amended Complaint at 8, 9. Hampton proposes to add injury claims in his amended complaint arising out of

medical deliberate indifference. Those claims were never part of this lawsuit, now pending for two years, (¶¶ 17-18) and cannot reasonably be added now without prejudicing Defendants and unduly delaying this litigation. See Discussion in II.B. & C.
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involvement or control over the conditions of confinement in SMUII. Therefore, it would be futile to allow Hampton to amend his complaint to add Shearer as a defendant to the cruel and unusual punishment claim. B. HAMPTON'S MOTION TO AMEND HIS COMPLAINT SHOULD BE DENIED ON THE GROUND THAT IT PREJUDICES DEFENDANTS. Hampton proposes to amend his complaint to add an entirely new claim for medical deliberate indifference and related requests for relief.43 The claim has no factual underpinnings in the original complaint. Therefore, Defendants had no notice of any such claim during investigation and discovery in this case. Hampton was not deposed on this claim. And discovery, including his deposition, would have to be re-opened at considerable time and expense to Defendants to their prejudice. This seems totally unwarranted given that Hampton, by his allegations, is asserting continuing deliberate indifference to his serious medical needs such that he could easily file a separate suit on this issue. And it is improbable that Director Schriro, Warden Luna or Classification Officer Shearer (the defendants in this litigation) are the proper defendants on a medical deliberate indifference claim. Such claims are properly brought against treating physicians and other knowledgeable medical personnel. In so far as the instant litigation is concerned, Hampton has already testified that he has access to medical, dental and mental health care while in SMUII. Exhibit 2, Hampton Depo. at 85-92. To the extent he challenges the adequacy of that care, he can readily file a separate suit against the medical care providers without delaying or prejudicing defendants in this suit. Therefore, the Court should deny Hampton's motion to amend to add medical deliberate indifference claims as prejudicial and unwarranted when a separate suit against appropriate defendants is easily filed instead. Zivkovic v. Southern Cal. Edison Co., 302

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F.3d 1080, 1087 (9th Cir. 2002) ("The district court may deny a motion for leave to amend if permitting an amendment would, among other things, cause an undue delay in the litigation or prejudice the opposing party"). C. HAMPTON'S MOTION TO AMEND HIS COMPLAINT SHOULD BE DENIED ON THE GROUND THAT IT WILL UNDULY DELAY THIS LITIGATION. This case has been pending since September 3, 2003. Defendants investigated Hampton's claims, deposed him, completed discovery and were prepared to file a Motion for Summary Judgment on June 30, 2005. Now almost two years into the litigation, Hampton seeks to add medical deliberate indifference claims that had no factual or legal underpinnings in the original complaint. So defendants were not on notice of these claims and did not investigate or take discovery on them. Therefore, to permit these claims to go forward would necessitate re-opening discovery and deposition and extending all of the litigation deadlines. This is a proper ground to deny Hampton's motion to amend. Zivkovic, 302 F.3d at 1087. III. CONCLUSION Hampton's proposed amendments to his complaint are either time-barred, meritless, fail to state a claim, prejudicial and unwarranted in this lawsuit, or parrot the allegations in the original complaint, with the exception of Hampton's sentencing information and the fees and costs request. Accordingly, the Court should deny Hampton's motion for leave to /// /// ///

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amend his complaint on grounds of futility, prejudice and undue delay, with the exception of the sentencing information and the fees and costs request which will not affect the status of the case. RESPECTFULLY SUBMITTED this 5th day of August, 2005. TERRY GODDARD Attorney General

s/ Colleen M. Auer Colleen M. Auer Assistant Attorney General Attorneys for Defendants
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