Free Reply to Response to Motion - 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 Kristofer M. Seneca, No. CV 03-1350 PHX SRB (ECV) Plaintiff, v. State of Arizona, et al., Defendants. Defendants1, by and through undersigned counsel, respectfully file the following Reply to their Motion for Summary Judgment on Plaintiff's claim that the Arizona Department of Corrections improperly limits the sources from which Plaintiff can obtain his religious property, including ADC's prohibition against the donation/gifting of religious items to particular inmates. I. Exhaustion. Plaintiff first asks this Court to strike any argument pertaining to exhaustion. Plaintiff argues that this claim should have been brought in an Unenumerated Rule 12(b) Motion State of Arizona, ADC Director Dora Schriro, Mike Linderman, Sandra Walker and Wanda Hofmann.
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REPLY TO MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNT II ISSUES

Case 2:03-cv-01350-SRB

Document 135

Filed 02/07/2006

Page 1 of 5

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and that Defendants failure to file such a motion resulted in a waiver of that argument. Contrary to Plaintiff's contention, Defendants preserved their exhaustion argument in their answer. (Dkt. 22.) Additionally, a review of this Court's screening order indicates that Plaintiff's claims regarding the source of religious property never passed screening under 28 U.S.C. § 1915A(a). (Dkt. 6.) The only issue that survived this Court's screening was Plaintiff's claim that ADC's numeric limitation on religious property violated RLUIPA. (Id.) Thus, until this claim was deemed raised, Defendants were under no obligation to respond, let alone address whether Plaintiff had exhausted his claim. Plaintiff does not contest the fact that he failed to exhaust his administrative remedies prior to bringing suit. 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). This Court must dismiss. II. Plaintiff's Prior Motion for Summary Judgment did not Require a Response.

Plaintiff next argues that Defendants' alleged failure to address these claims when he raised them in his first Motion for Summary Judgment precludes a "second bite at the apple." However, as noted above, this Court never permitted these issues to proceed. (Dkt. 6.) Count II was limited solely to Plaintiff's claim that ADC's policy limiting him to seven religious items violated RLUIPA. (Id.) Although Defendants acknowledge that the 2
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better practice would have been to note that this Court had not allowed these issues to proceed, there is no requirement that Defendants address non-existent claims. See Tucker v. Union of Needletrades, Industrial and Textile, 407 F.3d 784 (6th Cir. 2005) (Plaintiff cannot raise new claims of action in summary judgment motions). III. Plaintiff has failed to Counter Defendants' Motion. As previously stated, Plaintiff's claim raises no actual case or controversy but rather seeks an advisory ruling from this Court. Plaintiff's blanket complaint that he cannot receive donated items does not specify what item he desires to have donated to him, that a donor has offered to give him an item, and how his inability to receive the particular item has substantially burdened his ability to exercise his religion. Without specificity, this Court cannot determine whether the policy in question substantially burdened Plaintiff's ability to practice his religion, and thus, cannot determine whether the policy violates RLUIPA. Cutter v. Wilkinson, 544 U.S. ___, 125 S.Ct. 2113, 2114 (2005). As a threshold matter, Plaintiff must show, "that there is a substantial burden on his ability to exercise his religion." Murphy v. Missouri Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (citing 42 U.S.C. § 2000cc-2(b)) (emphasis added). To establish a substantial burden Plaintiff must demonstrate that ADC'S policy significantly inhibited or constrained conduct or expression that is part of his belief or that it denied him a reasonable opportunity to engage in his religious activities. See e.g. Murphy, 372 F.3d at 988. He cannot do so by making blanket allegations without any specificity regarding the items in question. In fact, it 3
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appears that the question of whether an item can be donated is totally dependent on whether there is a donor willing to donate the item. Plaintiff has made no showing that a donor exists. He merely seeks an advisory ruling based on speculation. As such, his claim must be dismissed. He states no case or controversy. Plaintiff also counter any of Defendants evidence showing no RLUIPA violation by way of ADC's vendor or donation policy. IV. Plaintiff fails to Show How Arizona's Constitution Has Been Violated By ADC Inmate Stores.

Finally, Plaintiff, for the first time appears to extend his claim regarding the sale of religious items to the use of public funds to the employment of prison chaplains. Plaintiff cannot expand his claim regarding the sale to include a new issue. V. Conclusion. For the reasons stated above, and those stated in their Motion for Summary Judgments, Defendants respectfully requests that this Court dismiss the remaining portion of Count II of Plaintiff's Complaint. Plaintiff failed to exhaust his administrative remedies prior to brining suit, and fails to state a valid RLUIPA claim. Defendants Linderman, Walker, and Hofmann, none of whom has authority to promulgate ADC policy, also respectfully request that this Court dismiss them from this action because they cannot provide the injunctive relief Plaintiff seeks. Wherefore, these Defendants requests the Court dismiss them from this lawsuit and award them costs and fees, including attorney's fees expended in their defense. 4
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RESPECTFULLY SUBMITTED this 7th day of February, 2006. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants Original e-filed this 7th day of February, 2006, 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: Kristofer M. Seneca #113423 ASPC - Eyman - Meadows Unit P.O. Box 3300 Florence, AZ 85232-3300 s/ Colleen Jordan Secretary to: Susanna C. Pineda IDS03-0340/RSK:G03-03514 #945881

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