Free Motion to Withdraw - 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, hereby withdraw that portion of their Motion to Dismiss as Moot that pertains to the question regarding the number of religious books an inmate may actually possess. On October 19, 2005, ADC administrators advised that undersigned had been given an incorrect interpretation of the new policy changes. Contrary to what had been previously stated, there was no change to the classification of Religious books. They are books subject to the seven book limit set forth in D.O. 909, Attachment A. As a result, Plaintiff's claim that he is only permitted to DEFENDANTS' MOTION TO WITHDRAW MOOTNESS ARGUMENT AS IT PERTAINS TO BOOK LIMITATION

State of Arizona, ADC Director Dora Schriro, Mike Linderman, Sandra Walker and Wanda Hofmann.
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possess seven religious books in his cell remains accurate. Defendants however, continue to assert that Plaintiff has failed to exhaust this claim. As noted in their Motion to Dismiss as Moot, although Plaintiff has repeatedly claimed that Count II involved religious books, this Court found that Plaintiff had not exhausted his administrative remedies as it pertained to his book claim. Specifically, this Court found that "Plaintiff's Reply [Dkt. 66] and its attachments indicate that Plaintiff merely challenged the policy limiting inmates to seven books in the abstract; he did not attempt to appeal the denial of any specific book(s)." (Dkt. 73, p. 4.) Having not exhausted his book claim, this Court cannot hear this claim. The Prison Litigation Reform Act of 1996 ("PLRA"), (codified as amended at 42 U.S.C. §1997e), has made the exhaustion provisions of 42 U.S.C. § 1997e(a) mandatory, rather than discretionary. Booth v. Churner, 121 S.Ct. at 1819, 1825 (2002). Exhaustion is required regardless of the relief offered through the administrative procedures. Id. at 1825 n.6. Therefore, whether the Plaintiff is seeking injunctive relief or monetary relief, he must first exhaust all administrative relief available. "[O]ne "exhausts" processes, not forms of relief." Id. at 1820. Prisoners are required to exhaust any available administrative remedies before bringing their actions. Morgan v. Arizona Department of Corrections, 976 F.Supp. 892, 895 (D. Ariz. 1997). Thus, although there has been no policy change regarding the number of religious books an inmate may possess, the matter must still be dismissed. Plaintiff's religious item 2
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claim has been mooted, and his failure to exhaust all remaining claims precludes this Court from hearing the matter. RESPECTFULLY SUBMITTED this 19th day of October, 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 19th day of October, 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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Kristofer M. Seneca #113423 ASPC - Eyman - Meadows Unit P.O. Box 3300 Florence, AZ 85232-3300 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS03-0340/RSK:G03-03514 #930347