Free Motion for Summary Judgment - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Armando Bermudez, No. CV 03-1673 PHX SMM (MS) Plaintiff, v. Charles Ryan, et al., Defendants. Defendants,1 by and through undersigned counsel, respectfully move for Summary Judgment, pursuant to Fed. R. Civ. P. 56 and LRCiv. P. 56.1, dismissing this lawsuit in its entirety. The attached Memorandum of Points and Authorities and concurrently filed Statement of Facts supports this pleading. RESPECTFULLY SUBMITTED this 21st day of November, 2005. Terry Goddard Attorney General s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants
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DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Charles Ryan, Conrad Luna, and Lisa Fansler.
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MEMORANDUM OF POINTS AND AUTHORITIES I. RELEVANT FACTS Plaintiff Armando Bermudez ("Bermudez"), 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. (Statement of Facts in Support of Motion for Summary Judgment ("SOF") ¶ 1.) On August 28, 2003, Bermudez filed an Original Complaint ("Complaint"), pursuant to 42 U.S.C. § 1983 ("§ 1983"). (SOF ¶ 2.) Bermudez alleged that Defendants violated his constitutional rights as follows: (1) they denied him due process by indefinitely confining him in Special Management Unit ("SMU") II as a validated Security Threat Group ("STG") member (Count I); and (2) they subjected him to conditions of confinement in violation of the Eighth and Fifth Amendments (Counts II and III). (Id.) The Court dismissed Count I to the extent that Bermudez asserted a denial of due process in his original validation hearing. (SOF ¶ 4.) Thus, to the extent that Bermudez alleges a denial of due process in the reviews of his STG status, Count I remains. (Id.) Additionally, Counts II and III of the Complaint remain. (Id.) The ADC has implemented Department Order ("DO") 806, the STG policy, to minimize the threat of prison gangs in the Arizona prison system. (SOF ¶ 8.) The policy provides for the identification, validation, and reclassification of inmates determined to be members of an STG. (Id.) A "validated" STG member is segregated in a maximumsecurity facility--SMU II until released or he renounces his gang membership and debriefs. (SOF ¶¶ 17, 52.) Debriefing better enables the ADC to manage the STG

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population and to determine if the inmate needs protection from other STG members. (SOF ¶ 53.) ADC staff first transferred Bermudez to SMU II in December of 2000, after his validation as a member of the Surenos STG. (SOF ¶ 1.) Every inmate, including

Bermudez, receives a classification review approximately every 180 days. (SOF ¶ 55.) During this periodic review, the Institutional Classification Committee ("ICC") examines an inmate's records, considers input from the inmate, and renders a decision on whether to change or maintain the inmate's classification scores. (SOF ¶¶ 60-64 .) The ICC allows the inmate to be present, make a statement, present relevant information, and appeal their classification decision. (Id .) Officials designed SMU II to provide an environment for maximum custody and control of the inmate population. (SOF ¶ 18.) Inmates housed in SMU II are validated STG members, death row inmates, inmates under investigation for protective custody, and/or inmates with high classification scores. (SOF ¶ 19.) There are two correctional officers per pod on day shift to handle all aspects of daily prison life for the ten inmates of the pod. (SOF ¶ 27.) One officer stations himself in the control room and controls all the doors in the pod. (Id.) The other officer attends to all the other daily activities such as taking inmates to recreation and shower, laundry, distributing meals, delivering and collecting mail, conducting welfare and security checks, and facilitating health, mental and dental visits. (Id .) The ADC determined that, during the nighttime hours, using the current lighting policy, rather than flashlights, created greater visibility with fewer disturbances to the inmates. (SOF ¶ 25.) Cell lights remain on at all times, but not always at full illumination. (SOF ¶ 20.) During the day and early evening, the cell lights are turned on at normal illumination. (Id.) However, officials significantly dim the lights between the hours of 10 3

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p.m. and 4 a.m. (Sunday-Thursday) and midnight to 4 a.m. (Friday-Saturday) ensuring the safety of officers. (SOF ¶¶ 20-23.) Dimming the lights allows the inmate to sleep while simultaneously enabling the staff to observe the inmates. (SOF ¶ 22.) In addition, the dangerous and violent inmates in SMU II, if given the opportunity, may throw objects, including human excrement or weapons, at officers during welfare checks. (SOF ¶ 23.) Even with dimmed lighting, inmates in SMU II are still able to create weapons and other contraband in their cells. (SOF ¶ 24.) Finally, allowing the inmates to operate with several hours of darkness every day would severely hamper the ability of the ADC to maintain a safe environment in SMU II. (Id.) The SMU II staff permits Bermudez one hour of outdoor exercise three days a week in a designated recreation area. (SOF ¶ 37.) Only one inmate is allowed into the

recreation area at a time for security reasons. (Id.) The recreation area is exposed to fresh air and sunlight through the meshed netting on its roof. (SOF ¶ 38.) Although there is no exercise equipment, Bermudez may request the use of a handball in the recreation area. (Id.) Bermudez may also exercise in his cell. (SOF ¶ 37.) Because he suffers from an inguinal hernia, Bermudez's doctors have advised him to avoid strenuous exercise. (SOF ¶ 39.) Consistent with his doctors' orders, Bermudez only walks around the recreation area during his recreation time. (Id.) On the days that Bermudez is allowed to use the

designated recreation area, he also has the opportunity to shower. (SOF ¶ 40.) On days he does not shower, Bermudez may use the sink in his cell to wash. (Id.) The ADC feeds Bermudez a diet consistent with a less active lifestyle as determined by a nutritionist. (SOF ¶ 41.) On weekdays, he receives a hot breakfast, a sack lunch, and a hot dinner. (SOF ¶ 42.) On Saturdays, Sundays, and holidays he receives two slightly larger meals, a brunch and dinner. (Id .) Bermudez does not have commissary privileges,

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except for hygiene items. (SOF ¶ 43.) However, during the month of December, he may purchase food items from the inmate store. (Id.) Finally, Bermudez has weekly visitation and phone privileges. (SOF ¶¶ 35-36.) The ADC allows him one, non-contact visit a week. (SOF ¶ 35.) He is also allowed one five-minute phone call per week. (SOF ¶ 36.) Although he is not allowed face-to-face communication with other inmates, Bermudez may speak to prison staff and counselors. (SOF ¶¶ 28, 32-33.) Further, Bermudez has access to a library that contains legal

materials. (SOF ¶ 30.) He may check out available legal materials several times a week. (Id.) He may also obtain reading materials and music tapes through the mail. (Id.) Bermudez spends the time in his cell watching his personal television and listening to his radio. (SOF ¶ 48.) Bermudez states that he is five feet six inches tall, and he weighs approximately 160 pounds. (SOF ¶ 44.) Bermudez admits that, except for his hernia and an earache he suffered some time ago, his health is good. (SOF ¶ 45.) He asserts that he has never seen a mental health specialist while confined to SMUII. (Id.) II. A. LEGAL ARGUMENT 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 Corp., 477 U.S. at 323. 5

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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); 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, 24950 (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. B. Bermudez Has Not Been Deprived of Due Process in His Continued Confinement in SMUII.

The decision to reclassify an inmate and transfer him or her from the general population to a maximum security unit requires a certain amount of due process. See generally Wilkinson v. Austin, 125 S. Ct. 2384 (2005). The requirements of due process are met if the inmate receives written notice, has the opportunity to present evidence, is informed of his or her right to remain silent, receives a written explanation of the reasons for the classification or transfer, and has the right to appeal the decision. Id. Once the inmate has received his or her due process and is reclassified and confined in a maximum security unit, no additional evidence or statements are necessary to justify continued segregated confinement. Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983); see also Madrid v. Gomez, 889 F. Supp. 1146, 1277-79 (N.D. Cal. 1995) (rejecting the argument that, despite the inmate's refusal to debrief, at some point there is no longer sufficient evidence to retain an inmate in [maximum security] where he has not engaged in any prison gang activity and there is no new evidence confirming the inmate's continued association with the prison gang). 6

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Bermudez asserts that, because he refuses to debrief, he is being confined in SMUII without due process. Inmates such as Bermudez are afforded a classification review every 180 days. (SOF ¶ 54.) Each time his classification has been reviewed, Bermudez has received written notice informing him of his right to appear at the hearings, call relevant witnesses, remain silent, have the assistance of a willing employee, receive a finalized copy of the ICC's findings, and appeal classification errors or overrides to the Administrator for Offender Services Bureau. (SOF ¶¶ 54-61.) This review process

constitutes more due process than Bermudez is actually entitled to receive pursuant to Hewitt, 459 U.S. at 477. This process is also sufficient to comply with the requirements set forth in Wilkinson, 125 S. Ct. at 2384. Thus, Bermudez's claim that he continues to be confined in SMUII in violation of his due process rights fails as a matter of law. C. Bermudez Fails to State a Claim for Relief Under § 1983.

To state a claim for relief under § 1983, a plaintiff must establish an affirmative link between the alleged injury and the conduct of the individual defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S. Ct. 598, 604-05 (1976). To state a claim against an official, a civil rights plaintiff must allege that the official personally participated in the constitutional deprivation, or that an official was aware of widespread abuses, and with deliberate indifference to the inmate's constitutional rights, failed to take action to prevent further misconduct. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987). Bermudez fails to allege any facts, injuries, or actions by the named Defendants that rise to the level of a Constitutional violation. He cannot establish an entitlement to relief pursuant to § 1983 as to any of his claims.

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1.

Koch v. Lewis is not controlling precedent.

As a preliminary matter, Bermudez is mistaken in relying upon any of the rulings or findings in Koch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz. 2001). (SOF at ¶ 2.) The Ninth Circuit vacated all the Koch line of cases in Koch v. Schriro, 399 F.3d 1099, 1100-01 (9th Cir. 2005). Although the Koch case involved an STG inmate, the district court's findings in that matter are now legally inapplicable. 2. Bermudez Fails to State a 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 provided every desirable amenity. Rhodes v. Chapman, 452 U.S. 337 (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). To state an Eighth Amendment cruel and unusual punishment claim, Plaintiff 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 test for "deliberate indifference" is a subjective one and requires an inmate to prove that: the prison official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. Neither requirement is satisfied in the instant case.

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a.

Bermudez provided no evidence that the Defendants failed the objective test.

Bermudez does not satisfy the first requirement because he fails to allege that he is denied basic necessities--i.e., food, clothing, shelter, hygiene and sanitation facilities, and any necessary medical attention--because he is not. Id. at 832. In terms of "life's necessities," Bermudez, like all inmates in the SMU II, has certain restrictions upon his rights and privileges. (SOF ¶¶ 17-50.) Contrary to his assertions, however, the restrictions do not rise to the level of a constitutional violation. The restrictions are the reasonable necessities of running a maximum security facility. With respect to food and shelter, the ADC serves Bermudez, and others in similar circumstances, a diet recommended by a nutritionist as consistent with their sedentary life style. (SOF ¶ 40.) Bermudez receives three meals a day during the week and two larger meals on the weekends. (SOF ¶¶ 40-41.) While Bermudez may not routinely purchase food items from the inmate store, he is able to purchase hygiene items on a regular basis and specialty food items during the December holidays. (SOF ¶ 42.) The Eighth

Amendment requires only that prisoners receive food that is adequate to maintain health and Bermudez does not assert that this is not the case. See Le Maire v. Mass., 12 F.3d 144, 145-6 (9th Cir. 1993). On the contrary, Bermudez's main issue with his "shelter" involves the lighting in his cell. Although, it is true that the lights in SMU II stay on twenty-four hours a day, officers significantly dim the lights during the night while inmates are sleeping. (SOF ¶ 20.) In Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996), the large florescent lights were on in front of and behind Keenan's cell twenty-four hours a day, so "his cell was `constantly illuminated, and [Keenan] had no way of telling night or day.'" Id. at 1091. He alleged that this lighting policy caused him "`grave sleeping problems' and other mental and psychological problems." Id. The court found that there was "no legitimate penological 9

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justification for requiring [inmates] to suffer physical and psychological harm by living in constant illumination." Id. at 1090 (quoting LeMaire v. Maass, 745 F. Supp. 623, 626 (D. Or. 1990), vac'd on other grounds, 12 F.3d 1444). It held that the plaintiff produced sufficient evidence to make his lighting claim a disputed issue. Id. In contrast to the situation in Keenan, Bermudez does not live in constant illumination. The ADC does not maintain the same level of illumination in front of and behind an SMU II inmate's cell twenty-four hours a day; ADC officers significantly dim the lights in the SMU II during the night. (SOF ¶ 20.) Moreover, Bermudez does not allege or prove that the lighting policy prevents him from sleeping. Although he alludes to possible sleep deprivation, he never claims that the policy had or has actually caused him to lose sleep. During his deposition, Bermudez affirmatively stated that he sleeps seven or eight hours each night. (SOF ¶ 26.) Finally, keeping the lights on but dimmed is a reasonable compromise between the legitimate penological concern for security and an inmate's need for adequate shelter. The absence of at least minimal lighting would

severely hamper the ADC's ability to maintain a safe environment for both staff and inmates. (SOF ¶ 24.) With respect to exercise, Bermudez has recreation three times per week. (SOF ¶ 37.) The design of the exercise facility allows fresh air and sunlight through a mesh roof. (SOF ¶ 38.) Defendants are not constitutionally required to provide inmates with any particular type of exercise equipment, such as rowing machines or any other weight training exercise machines. Should Bermudez need more vigorous exercise he may

request the use of a handball. (Id.) The Defendants provide him with the minimal civilized means for exercising his body. In his deposition, Bermudez attributed his lack of vigorous, physical exercise to his hernia, rather than any conditions resulting from the design of the SMUII exercise facility. (SOF ¶ 39.) 10

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Bermudez has limited communication privileges and restricted educational opportunities. (SOF ¶¶ 28, 33, 35-36, 46.) Bermudez is permitted one phone call per week, is allowed visitation with his family, can communicate with other inmates, and with the prison staff. (SOF ¶¶ 28, 33, 35-36.) He is not eligible for work, vocational,

recreation, or educational programs, but can do in-cell programs unless he has special education needs. (SOF ¶ 46.) However, no legal authority supports the proposition that giving inmates opportunities to further their education is a minimal civilized measure of life's necessities. Bermudez fails to show that he was subjected to punishment or torture without penological justification. Bermudez was not placed in the SMU II as punishment or as a form of torture. Bermudez, like all the other similarly situated STG members, was placed in the SMU II to minimize the threat posed by STGs to the safe, secure, and efficient operations of the prison system, which is clearly a legitimate penological reason. Thus, Bermudez fails to allege that there has been any constitutional deprivation of a basic necessity of life. b. Bermudez provided no evidence that the Defendants failed the subjective test.

Bermudez does not satisfy the second requirement because he fails to establish that any Defendant knew of, and disregarded, an "excessive risk" to his health or safety. Bermudez alleges that the Defendants knew of the possibility that an inmate may suffer physical, emotional and/or psychological harm from long-term isolation. (SOF ¶ 3.) Even if this allegation was supported by evidence,2 knowledge of a mere possibility of potential harm does not satisfy the requisite knowing disregard of an excessive risk required to

Bermudez's only source for this assertion is the Koch line of cases, but this Court vacated them all in Koch v. Schriro, 399 F.3d 1099, 1100-01 (9th Cir. 2005).

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establish an Eighth Amendment violation. See Farmer, 511 U.S. at 843 (requiring the prison official to have disregarded a substantial risk of serious harm). Bermudez does not allege that he has personally suffered any injury (physical or otherwise) as a result of his confinement in SMU II. In fact, he admitted to generally good health. (SOF ¶ 45.) In terms of actual injury, Bermudez claims to suffer from a hernia, but he also states that the hernia was most likely a result of him "working out." (SOF ¶ 39.) Bermudez further asserts that he has never sought any treatment for any mental health or emotional problems. (SOF ¶ 45.) He admitted that he has only sought medical care for his hernia and an earache while confined to SMUII. (Id.) After a lengthy period of SMU II confinement, Bermudez has provided no evidence of actual harm. Aside from

conclusory statements of facts derived from the no-longer-valid Koch cases, Bermudez has not pointed to any evidence or record establishing that the Defendants were deliberately indifferent to his basic needs. Moreover, he has provided no evidence that the Defendants knew of the alleged unconstitutional conditions at the SMU II. A trier of fact could not conclude--without impermissibly speculating--that the Defendants knew of any risk to the inmates in the SMU II. Bermudez's allegations do not amount to a denial of the minimal civilized measure of life's necessities. He has never provided any evidence that the Defendants knew of and disregarded an excessive risk to his health or safety. Consequently, Defendants are

entitled to summary judgment as to Bermudez's claim that he suffered cruel and unusual punishment in violation of the Eighth Amendment. Bermudez's Eighth Amendment cruel and unusual punishment claim fails as a matter of law.

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3.

Bermudez Fails to State a Retaliation Claim.

Bermudez alleges that making prisoners place snitch labels on themselves to avoid further punishment is psychological torture and thus unconstitutional under the 5th and 8th Amendments. (SOF ¶¶ 2-3.) He further alleges that to be transferred out of the SMU II he must debrief and knowingly incriminate himself, which he has refused to do. (Id.)

Bermudez contends that the existence of alternatives may be evidence that the STG policy is unreasonable. (Id.) To state a claim for retaliation, Bermudez must show that Defendants acted in retaliation for the exercise of a constitutionally-protected right and that the action advanced no legitimate penological interest. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Neither requirement is satisfied here. His argument fails to meet the first

requirement because neither the classification hearings, nor the STG validation hearing, interfere with his Fifth Amendment right not to incriminate himself. Bermudez asserts that Defendants confined him in the SMU II in retaliation for his refusal to incriminate himself and others--i.e., renounce his gang membership and debrief in violation of his Fifth Amendment right against self-incrimination. The debriefing

process does not implicate Bermudez's Fifth Amendment rights. "The Fifth Amendment states that `[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'" Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 189 (2004) (citing U.S. v. Hubbell, 530 U.S. 27, 34-38 (2000)). Specifically, the Fifth Amendment privilege acts to protect "against disclosures that the witness believes could be used in a criminal prosecution . . . ." Id. at 190 (emphasis added). While Bermudez asserts that he could be subject to potential criminal ramifications should he debrief, he fails to introduce any evidence that the Defendants would use or intend to use any information gained through debriefing of prisoners for any purpose other 13

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than to bolster the security within the prison. He fails to allege that the debriefing process would force him to incriminate himself for use in a criminal prosecution. Id. He provides no evidence that the Defendants use or have used any information gained through debriefing of prisoners for any purpose other than for security within the prison. The debriefing may result in hardship at the personal level; it has nothing to do with potential criminal prosecution and not protected by the Fifth Amendment. Defendants maintain that the ADC only uses information obtained through inmate debriefing for internal security purposes. (SOF at ¶ 53.) Finally, Bermudez's segregation in the SMU II serves legitimate penological interests of the ADC. Confinement in the SMU II occurs after validation as a member of an STG. It is gang membership, not the failure to renounce that membership, which results in the SMU II confinement under ADC Policy. Bermudez does not allege, nor could he, that his placement and continued confinement in the SMU II has "advanced no legitimate penological interest." Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997), cert denied, 542 U.S. 936 (1998). To the contrary, his confinement in the SMU II "bear[s] a self-evident connection to the State's interest in maintaining prison security and preventing future crimes." See Overton v. Bazzetta, 539 U.S. 126, 133 (2003). Internal security is promoted by segregating all validated gang members from other gang members and the general prison population. Courts have concluded that the interests of prison officials in segregating gang members through a STG-type program in order to improve prison security and inmate safety are compelling interests. In re Long Term Administrative Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir.) cert. denied, 528 U.S. 874 (1999). Bermudez was confined in the SMU II because of his STG validation. His placement and continued confinement in the SMU II

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serves the legitimate penological goals of security, safety, and deterrence. Bermudez therefore fails to state a retaliation claim as a matter of law. D. Defendants are Entitled to Qualified Immunity.

State officials sued in their individual capacity are entitled to qualified immunity from liability for civil damages unless their conduct violates clearly established constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). This immunity is not merely from liability, but from suit. Id. When a party asserts qualified immunity, the court must determine "whether, in light of clearly established principles governing the conduct in question, the [party asserting qualified immunity] objectively could have believed that his conduct was lawful." Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). A qualified immunity defense is subject to a two-step analysis. The initial inquiry is whether the alleged facts show that the defendant violated Bermudez's constitutional rights. See Saucier, 533 at 201-202; Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). If the allegations show that the defendant indeed violated the Bermudez's constitutional rights, the second inquiry is whether the law at the time of the alleged constitutional violation was clearly established. See Saucier, 533 U.S. at 201-202. "[T]he right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). To

determine that the law was clearly established, the "standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that [his] conduct deprived a victim of his rights, [he] is not entitled to 15

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qualified immunity." Haugen v. Brosseau, 339 F.3d 857, 873 (9th Cir. 2003), see also Pelzer, 536 U.S. at 740 n. 10 ("The object of the `clearly established' immunity standard is not different from that of `fair warning' . . . .") (Citation and alteration omitted). Defendants are entitled to qualified immunity in this suit. There are no facts establishing that Defendants violated the Fifth, Eighth, or Fourteenth Amendments. Defendants assert that Bermudez has failed to allege a deprivation of any constitutional right. Therefore, Bermudez fails the first Saucier test. If the Court construes Defendants' actions as involving a constitutional violation, however, Defendants legitimately believed their actions to be lawful, and are, therefore, entitled to qualified immunity. Furthermore, Defendants are unaware of any circuit precedent holding that the conduct at issue in this matter violated a clearly established law. Defendants, therefore, are entitled to qualified immunity.

III.

CONCLUSION Based on all of the foregoing reasons, there is no evidence that Defendants violated

Bermudez's constitutional rights, Defendants are entitled to qualified immunity, and the entire Complaint must be dismissed.

RESPECTFULLY SUBMITTED this 21st day of November, 2005. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original e-filed this 21st day of November, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Armando Bermudez, #130901 ASPC ­ Eyman-SMU II P.O. Box 3400 Florence, Arizona 85232 s/ Colleen Jordan Secretary to: Susanna C. Pineda IDS04-0243/RSK:G04-20520
#934533.1