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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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, Plaintiff, v. State of Arizona, et al., Defendants. Defendants1, by and through undersigned counsel, respectfully move for Summary Judgment, pursuant to Fed. R. Civ. P. 56 and LRCiv. P. 56.1, dismissing the remaining portion of this lawsuit in its entirety. The attached Memorandum of Points and Authorities and concurrently filed Statement of Facts supports this pleading. RESPECTFULLY SUBMITTED this 19th day of December, 2005. Terry Goddard Attorney General s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General State of Arizona, ADC Director Dora Schriro, Mike Linderman, Sandra Walker and Wanda Hofmann.
1

No. CV 03-1350 PHX SRB (ECV) MOTION FOR SUMMARY JUDGMENT ON REMAINING COUNT II ISSUES

Case 2:03-cv-01350-SRB

Document 123

Filed 12/19/2005

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. Relevant Procedural History.

Attorneys for Defendants On July 13, 2003, Plaintiff filed his Complaint alleging that Defendants had violated his right to free exercise of his religion and RLUIPA by implementing particular policies at the Arizona Department of Corrections ("ADC"). (SOF ¶ 1.) Of his three claims for relief, Count I and Count II were permitted to proceed following this Court's 28 U.S.C. § 1915(a) screening. (SOF ¶ 2.) Count III, involving religious books, was dismissed. (SOF ¶ 3.) Count I of the remaining counts alleged that ADC policy requiring verification before Plaintiff could change his religious preference violated his right to free exercise of religion. (SOF ¶ 4.) Count II alleged that ADC policy which limited the number of religious items an inmate may possess to seven unduly restricted the exercise of his religion in violation of RLUIPA. (SOF ¶ 5.) It also alleged that ADC policy required that inmates purchase their religious items through the inmate store "limited to the items ADOC has picked to sell in the inmate store" and prevents the donation of religious items. (Id.) Subsequently, the parties each filed Motions for Summary Judgment. (SOF ¶ 6.) As this Court subsequently noted, neither motion for summary judgment addressed that portion of Count II that discussed Plaintiff's claim that he was required to obtain religious items through the prison store and could not obtain the items through donation. (Id.) On September 1, 2004, this Court granted Defendant's Motion for Summary Judgment in part, and denied it in part. (SOF ¶ 7.) This Court dismissed Count I of Plaintiff's complaint as 2
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

moot, and left Count II-the question of whether ADC's policy restricting the number of religious items an inmate may possess to seven items significantly infringed on Plaintiff's ability to practice his religion. (Id.) During the July 2005 final pretrial conference, Plaintiff noted that the parties had not addressed that portion of Count II limiting where inmates may obtain their approved religious items (i.e., via the inmate store or, if unavailable there, from an approved vendor, but not from donations). (SOF ¶ 8.) When the Defendants questioned whether Plaintiff had exhausted this issue, this Court questioned Plaintiff on the exhaustion issue and advised him to exhaust his claims if he hadn't already done so. (Id.) The matter was then set for trial. (Id.) Before the trial date, Defendants moved for dismissal of Plaintiff's claim that ADC's restriction on the number of religious items he could possess violated the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"). (SOF ¶ 9.) ADC had amended its religion and religious property policies to allow inmates to possess as many items as will fit in a designated religious-items box, mooting Plaintiff's claim. (Id.) On November 17, 2005, this Court granted Defendants' motion. (SOF 10.) The Court further noted that the parties had not addressed the religious-property-source claim and granted the parties the opportunity to address this issue, including exhaustion. (Id.) This Motion addresses the religious-property-source-limitation issue, including ADC's prohibition against the donation/gifting of religious items to particular inmates. 3
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 3 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

II. Relevant Factual Background. Plaintiff filed his suit in July 2003. (SOF 1.) Review of all of Plaintiff's inmate grievances filed since 2002 indicates that the first time Plaintiff raised any issue regarding the purchase or receipt of donated religious items was in his September 7, 2005 inmate letter submitted two years after he brought his suit. (SOF ¶ 11.) In his September 7, 2005 inmate letter, after requesting approval of seven of alleged religious items and asking what documentation is necessary for approval of the items, he states: "[T]he items should be able to be received by donation of a family/friend order it." (SOF ¶ 12.) Unsatisfied with the response to his letter, he filed a formal grievance again seeking the seven requested items and requesting a policy change. (SOF ¶ 13.) Specifically, he asked that policy be changed to allow family and friends to order the item from an approved vendor, the vendor to donate the item, and the inclusion of additional vendors from which to choose the particular religious item. (Id.) He also argued that "ADOC cannot limit inmates to purchasing items only from vendors they select or limiting it to a particular item ADOC chooses . * * * * Futhermore, ADOC cannot prevent inmates from receiving gifts or donations from the outside when it relates to materials protected by the First Amendment." (Id.) Again unsatisfied by the response, Plaintiff filed a grievance appeal. (SOF ¶ 14.) In it he states, "[T]his Grievance was taken as part of federal Judge Susan R. Bolton telling me to exhaust this issue." (Id.) He then goes on to discuss his requested religious items. (SOF ¶ 15.) He has subsequently appealed the denial of his seven requested religious 4
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 4 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

items, as well as nineteen other alleged religious items, to the director's level. (SOF ¶ 15.) In his appeal to the director, he makes no mention of the donation issue. (Id.) As of December 8, 2005, his appeal was still pending. (SOF ¶ 16.) Given the fact that Plaintiff has only now attempted to grieve a claim that donations should be permitted, it is clear that this issue was not exhausted before bringing suit and must be dismissed. In reference to his claim that ADC limits his religious items to those in ADC's inmate stores, DO 904, contains no requirement that an approved religious item be one stocked by the inmate store. (SOF ¶ 17.) Instead, if an approved religious item is not available through the inmate store, it can be ordered and purchased through an approved source. (Id.) If the item is not available through a previously approved source, DO 904, subsection 1.1.4 permits an inmate to provide the name of a vendor for ADC approval. (Id.) The pertinent ADC policies governing possession and procurement of religious property are the following: 909.05 PROPERTY ­ GENERAL 1.1 All inmates are authorized to possess property items in accordance with this Department Order and with the Inmate Store/Property List (See Attachment A), unless: 1.1.2 An item is appropriately authorized by another Department Order, a court order or other legitimate governing source (such as religious items, typing ribbons for previously authorized typewriters, etc.) 1.2 Items available for store purchase are prohibited from being received or purchased by inmates from any other source, i.e., postage 5
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 5 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

stamps. 909.02 INCOMING MAIL 1.6 Inmates may receive prepaid publications mailed directly from the publisher/retailer. The contents of these publications may be inspected. 904.04 RELIGIOUS ACCOMMODATIONS

1.1.3 Inmates shall be authorized to possess religious property consistent with the practices of the inmate's chosen religion, as outlined in Department Order #909, Inmate Mail/Property and Stores, Attachment A. 1.1.4 An inmate who wishes to purchase religious items shall submit the request, using an Inmate Letter, to the Senior Chaplain, which shall include the size and description of the item requested and shall list all previously approved items in their possession. 1.1.4.4 Staff assigned to Inmate Banking shall accept and process orders for approved items from approved sources on a list published and distributed by the Pastoral Activities Administrator. If a source has not been identified, the inmate shall provide a source acceptable to the Pastoral Activities Administrator, from which to obtain the item. 1.1.4.4.1 When an approved item is unavailable for purchase through approved sources, for example an eagle feather, the Warden, in consultation with the Pastoral Activities Administrator, shall determine the method for obtaining the item. (SOF ¶ 18.) By statute, ADOC inmate stores are run by private entities contracted by the department to establish and maintain inmate stores. (SOF ¶ 19.) Such stores are "to offer for sale . . . toilet articles, candy, tobacco products, notions and other sundries to the 6
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

persons confined." (Id.) Because the stores are privately run, no state funds are used to purchase the items offered for sale. II. 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); 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

7
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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. II. Legal Analysis. A. The PLRA Mandates Dismissal Because Plaintiff failed to Exhaust His Claim Before Bringing Suit.

The Prison Litigation Reform Act of 1996 ("PLRA") mandates exhaustion of administrative remedies prior to suit for all inmate claims "brought with respect to prison conditions under section 1983 of this title, or any other federal law." 42 U.S.C. §1997e(a) (emphasis added); Porter v. Nussle, 534 U.S. 516, 517 (2002). Exhaustion of all remedies for all claims is a prerequisite to suit and cannot be waived on grounds of futility, inadequacy, default or for lack of being "plain, speedy, and effective." Booth v. Churner, 532 U.S. 731, 739-740 (2001); see also Porter, 534 U.S. at 532. The failure to exhaust administrative remedies under the PLRA is treated as a matter in abatement and is properly raised in an unenumerated Rule 12(b) motion. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). "In deciding a motion for a failure to exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. "If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120. A court may not stay an action to provide the plaintiff a further opportunity to exhaust. McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). 8
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 8 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. ADC Inmate Grievance System At the times relevant to Plaintiff's complaint, the ADC's three-tiered administrative remedies procedure was governed by ADC Department Order ("DO") 802. (SOF ¶ 11.) DO 802, Inmate Grievance System (effective March 3, 2000), provides that an inmate may use the grievance process for issues relating to "property, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (Id., DO 802.01 § 1.1.1. (emphasis added).) An inmate is required to attempt to resolve all allowed grievance issues informally before submitting a formal grievance. (Id., DO 802.01 § 1.1.3.) An inmate must submit an inmate letter to his assigned Grievance Coordinator within ten workdays of the action that caused the complaint. (Id., DO 802.08 § 1.1.) If the inmate complaint cannot be resolved informally, the inmate may submit a formal inmate grievance to his prison facility's Grievance Coordinator within ten calendar days from the date the inmate receives the Inmate Request/Response form from his CO III (prison counselor). (Id., DO 802.09 § 1.1.2.) If the inmate receives an unfavorable response, he may appeal to the Warden/Deputy Warden within ten calendar days of receipt of the grievance form returned from the grievance counselor. (Id., DO 802.09 § 1.3.1.) If 9
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 9 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

the inmate wishes to appeal the Warden's/Deputy Warden's response, he may appeal to the Director via the Grievance Coordinator within ten calendar days of receipt of his grievance form from the Warden/Deputy Warden. (Id., DO 802.09 § 1.4.1.) Within thirty calendar days of receipt of the grievance appeal, the Director shall review the grievance and provide a written response to the inmate specifying the reasons for the decision. (Id., DO 802.09 § 1.4.3.) The Director's response is final, thereby exhausting available administrative

remedies through the ADC's Inmate Grievance System for standard grievances. (Id., DO 802.09 § 1.4.4.) 2. Plaintiff Failed to Exhaust His Claims Prior to Bringing This Suit.

Plaintiff claims that ADC's policy which precludes him from seeking donated religious items violates RLUIPA. It is apparent by Plaintiff's own actions that he failed to exhaust his remaining claim prior to bringing suit. In his recent grievance proceedings, Plaintiff acknowledges that he was attempting to exhaust his administrative remedies as directed by this Court, and advises that he will notify the Court of the upcoming exhaustion or "file a new civil suit." (SOF ¶ 15.) He has effectively acknowledged that his claims were not exhausted at the time he brought his suit in 2003. Dismissal is thus required. Exhaustion under DO 802 occurs when the inmate has appealed to and received a response from the Director. (SOF ¶ 11, DO 802.09 § 1.4.4.) Because Plaintiff presented his claim to the Director after he brought his suit, he failed to comply with the PLRA 10
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 10 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

requirement of exhaustion of administrative remedies prior to filing the instant suit. The remaining portion of Count II must be dismissed for failure to exhaust administrative remedies. Any matter that he had failed to exhaust must be dismissed. McKinney v. Carey, 311 F.3d at 1199-1200. B. Plaintiff Fails to Demonstrate How ADC's Policy Violates RLUIPA

Additionally, Plaintiff's claim raises no actual case or controversy but rather, he merely 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 11
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 11 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

question. In fact, it 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. Moreover, to allow Plaintiff to receive donated religious property, in contradiction to the general property policy which prohibits incoming items which presents a serious security and operational risk. (SOF ¶ 22.) Allowing inmates to receive personal donations increases the potential for the introduction of contraband into the prison. (Id.) The requirement that prisoners purchase personal property items from a legitimate retail outlet reduces this potential. (Id.) Anyone wishing to donate an item directly to an inmate has the option of sending the inmate the necessary funds to purchase the item from the inmate store or an approved vendor. (Id.) Additionally, contrary to Plaintiff's assertions, donations of religious literature, materials and supplies are accepted by ADC. (SOF ¶ 23.) However, they become property of the Department. (Id.) These donations cannot be specified to a particular inmate or a particular prison unit. (Id.) They are also not distributed to inmates for personal

possession but are made available for use by all inmates. (Id.) Disallowing specific placement reduces the chance that someone may attempt to conceal contraband for a particular inmate as donators do not know where their donations will be utilized. (Id.) C. Plaintiff fails to Show How Arizona's Constitution Has Been Violated By ADC Inmate Stores. 12
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 12 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff, without any factual support, claims that Article II, § 12 is violated by the sale of various religious items at the inmate store. Plaintiff apparently believes that these items are purchased with state funds. He is wrong. As noted above, inmate stores are maintained and operated by private entities that contract with the state to provide a service to persons who are incarcerated. (SOF ¶ 19.) See also A.R.S. § 41-1604.02. There is no showing that public funds are expended on the items these entities stock in inmate stores for purchase by those incarcerated in Arizona's prisons. See Jones v. Community

Redevelopment Agency, 733 F. 2d 646, 649-50 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim and insufficient to defeat a motion for dismissal). Having failed to show that any public moneys are expended for the purchase of religious items, Plaintiff's claim must fail. D. Defendants Linderman, Walters and Hofmann Must Be Dismissed As They Cannot Provide Plaintiff the Injunctive Relief He Seeks.

Assuming this Court does not dismiss for failure to exhaust or failure to state a claim, Defendants Linderman, Walker and Hofmann must be dismissed from this matter as neither is in a position to give Plaintiff the relief he seeks. Defendants Linderman and Hofmann were each named in this action on the basis that they allegedly provided erroneous advice, legal and religious, to the ADC Director regarding the religious property policy in question. Defendant Walker was named because she followed the policy implemented by the Director. (SOF 1.) They, however, do not control ADC policy and 13
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 13 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

cannot provide Plaintiff the relief he seeks: under statute, only the Director of ADC, Defendant Schriro, is authorized to promulgate policy. See A.R.S. §§ 41-1604(A)(1) (The Director shall be responsible for the overall operations and policies of the department) and 41-1604(B)(1) (Director may adopt rules). The power to establish policy cannot be delegated. See A.R.S. § 41-1604(B)(2)(d). Because Defendants Linderman, Walters and Hofmann cannot provide Plaintiff the relief he seeks--a policy change--they must be dismissed. III. Conclusion. For the reasons stated above, 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.

14
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

RESPECTFULLY SUBMITTED this 19th day of December, 2005. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants Original e-filed this 19th day of December, 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: 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 #939078

15
Case 2:03-cv-01350-SRB Document 123 Filed 12/19/2005 Page 15 of 15