Free Reply to Response to Motion - 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, hereby file their reply to their motion to dismiss this case as moot. I. Argument. Plaintiff asks that this Court not dismiss his action as moot. He states that he brought his lawsuit for the purpose of obtaining all the religious items and books he alleges are necessary for the practice and study of his chosen religion, and not to change ADC policy limiting religious items and books to seven. However, as this Court recognized from the beginning and as Plaintiff has consistently advocated, his suit sought to remove

No. CV 03-1350 PHX SRB (ECV) DEFENDANTS' REPLY TO THEIR MOTION TO DISMISS AS MOOT

State of Arizona, ADC Director Dora Schriro, Mike Linderman, Sandra Walker and Wanda Hofmann.
1

Case 2:03-cv-01350-SRB

Document 111

Filed 09/29/2005

Page 1 of 6

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

what he described as an arbitrary numerical limitation on his possession of religious items.2 When he brought his suit, he possessed the numeric limit of religious items allowed by ADC policy and ADC had refused to consider any item beyond that numerical limit, i.e., no more than seven religious items and no more than seven books, irrespective of the book's content. During the July 29, 2005 final pretrial conference, Plaintiff acknowledged that ADC's July 11, 2005 policy change no longer limited him to seven religious items and that portion of his claim was moot. He claimed, however, that the claim was not completely moot because the question remained whether ADC's numerical limit on religious books violated RLUIPA. Undersigned counsel advised this Court that the July 2005 policy change did not appear to affect that policy, but that she would inquire. Subsequently, ADC reclassified religious books, removing them from the general book limitation. Now, like all other religious items, possession of religious books is governed by the religious policy and the numerical limitation no longer exist. Plaintiff's remaining claim has thus been mooted. Dismissal is required. In an attempt to preclude dismissal, Plaintiff now claims that ADC has not approved all of the religious items he requested. He further claims that the specific items were part of his original complaint. It is obvious that they were not. As Plaintiff's own actions demonstrate, Plaintiff recognizes that these claims regarding the approval of individual religious items are not ripe for consideration in federal court. By his own admission, he In his Motion for Summary Judgment, Plaintiff indicated that he would be satisfied if he were able to possess all religious items that would fit into the 9"x12"x4" designated religious box. (Dkt. # 27 at 6.) 2
2

Case 2:03-cv-01350-SRB

Document 111

Filed 09/29/2005

Page 2 of 6

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

has recently submitted a request for approval of those items that had been rejected under the old ADC policy and he is grieving those items that have subsequently been rejected. (Dkt # ___ at 5.) In essence, any claim pertaining to an individual item has not been exhausted and thus, cannot be heard by this Court. 42 U.S.C. §1997e. Plaintiff's claim that he can now exhaust his claim after he has filed suit and his reliance on Francis v. Marquez, 741 F.2d 1127 (9th Cir. 1984) is erroneous. Exhaustion must be completed before filing suit, not after. McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (a prisoner must exhaust administrative remedies before, not after, filing suit in federal court). Because Plaintiff has not exhausted his administrative remedies regarding the particularized items, his suit cannot survive. This Court should reject any invitation by Plaintiff to circumvent the grievance process and PLRA to allow Plaintiff to keep this matter alive. Moreover, he cannot bootstrap new claims to old. Permitting him to do will prejudice the Defendants. See Elliott Industries Ltd. Partnership v. BP America Production Co., 407 F.3d 1091, 1121 (10th Cir. 2005) (A plaintiff cannot wait until the last minute to ascertain and refine the theories on which he intends to build his case if permitting a plaintiff to change his theory will prejudice the other party in maintaining its defense.) Since the inception of this case, Defendants have dealt with one issue-whether ADC's numeric restrictions violated RLUIPA. There has been no examination of, or need to determine, whether the recent rejection of a particular religious item would survive a 3
Case 2:03-cv-01350-SRB Document 111 Filed 09/29/2005 Page 3 of 6

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

court challenge under RLUIPA. Defendants should not be prejudiced by trying new issues at this late juncture. As for Plaintiff's allegations that circumstances may change, or that ADC may one day have a new Director who will change the current policy, resulting in the current policy reverting to the old, they are nothing more than conjectural and preclude review. Russman v. Board of Educ. of Enlarged City School Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). Finally, Plaintiff tries to resurrect his case by claiming that this Court has yet to rule on his Petition for Order to Show Cause (Dkt. #55). He is wrong. This Court denied his Petition. (Dkt. # 73.) In doing so, this Court noted that his petition for contempt referenced his ability to change religious preferences and that his petition was premature because "no constitutional violation has yet been established." (Id.) Subsequently, Plaintiff's ability to demonstrate the necessary constitutional violation disappeared when the underlying claim was dismissed as moot. (Dkt. # 76.) As a result, had this Court not previously denied his Petition, it would now be moot. Finally, Plaintiff's desire to have the alleged acts of Defendants Linderman, Walker and Hofmann deemed unconstitutional does not preclude dismissal. His claims are moot. His desire that this Court go through the academic exercise of trial to show that something that is no longer was unconstitutional does not vest this Court with the jurisdiction needed to hear the case. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990) (It is not 4
Case 2:03-cv-01350-SRB Document 111 Filed 09/29/2005 Page 4 of 6

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

enough that a dispute was alive when suit was filed, the parties must continue to have a personal stake in the outcome of the lawsuit.) II. Conclusion. For the reasons stated above, Defendants respectfully requests that this Court dismiss this action, in its entirety, as moot. RESPECTFULLY SUBMITTED this 29th day of September, 2005. Terry Goddard Attorney General

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

5
Case 2:03-cv-01350-SRB Document 111 Filed 09/29/2005 Page 5 of 6

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

Original e-filed this 29th day of September, 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 S. Jordan Secretary to: Susanna C. Pineda IDS03-0340/RSK:G03-03514 #926546

6
Case 2:03-cv-01350-SRB Document 111 Filed 09/29/2005 Page 6 of 6