Free Motion to Dismiss Case - 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, MOTION TO DISMISS AS MOOT v. State of Arizona, et al., Defendants. Defendants1, by and through undersigned counsel, hereby move to dismiss this case as moot. I. Relevant Procedural History. On July 13, 2003, Plaintiff filed his Complaint alleging that Defendants had violated his right to free exercise of his religion by implementing particular policies at the Arizona Department of Corrections ("ADC"). 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. (Dkt. 6.) Count I alleged that ADC policy requiring verification before Plaintiff could

State of Arizona, ADC Director Dora Schriro, Mike Linderman, Sandra Walker and Wanda Hofmann.
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change his religious preference violated his right to free exercise of religion. (Dkt. 1, 6.) 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. (Id.) Subsequently, the parties each filed Motions for Summary Judgment. (Dkt. # 27 and Dkt. # 72.) On September 1, 2004, this Court granted Defendant's Motion for Summary Judgment in part, and denied it in part. (Dkt. # 82.) This Court dismissed Count I of Plaintiff's complaint as 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.) This Court, in response to Plaintiff's Motion for Reconsideration, also appears to have broadened the scope of Count II to include the numeric limitation on the number of religious books Plaintiff could possess under ADC's general book limitation.2 (See Dkt. # 60.)

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). 2
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Plaintiff's Complaint alleged that his religion requires the use of twenty items and that ADC's policy restricting his possession to seven items substantially burdened his ability to practice his religion. (Dkt. # 1.) He has also complained that ADC's general book limitation, again limited to seven, infringed on his ability to study his religion. In his Motion for Summary Judgment, he sought an order that would declare these ADC policies unconstitutional and allow him to possess all items that would fit in the then 9"x12"x4" box permitted by ADC for religious items. (Dkt. # 27 at 6.) On July 11, 2005, ADC changed its religious policy and the corresponding property policy by eliminating the numerical restriction on the number of religious items an inmate may possess. (See DO 904--"www.azcorrections.gov/Policies/904.htm."). That newly implemented policy allowed inmates, including Plaintiff, to possess as many religious items3 that could be stored in the then designated 9"x12"x4"box without numeric limitation as long as the items do not pose a security risk to the prison. Plaintiff acknowledged this policy change in his Reply to his Motion for Reconsideration, as well as at the Final Pretrial Conference held in this case on August 29, 2005. (Dkt. # 102 at p. 5.) During that conference, undersigned counsel advised this Court that additional changes to the ADC Religious Property Policy were being contemplated by the ADC Director, including the question of whether religious books would be categorized under religious

The issue involving religious books and the general book limitation was not resolved by the July 11, 2005 policy change. 3
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items and whether the size of the religious box would be increased to accommodate said items. On September 12, 2005, ADC Director Dora Schriro approved additional changes to Departmental Orders 904 and 909. Specifically, all religious property items are now to be stored in a designated religious property box with exceptions (upon approval) "for those items not available in a size that will allow them to fit in the designated box." (Exhibit A: Director Schriro's approval of DO 904.04 1.1.4.5, and Attachment A to DO 909.) Additionally, religious books are no longer subject to the general book limitation, but considered religious items. (Id.) The designated Religious box will now be the same size as all other standard inmate property boxes. (Id.) Previously, this box was limited to 9"x12"x4". Under these new revisions, an inmate may place approved religious items, including religious books, into his designated religious box. Given that the allegedly offensive policies have been changed, and that Plaintiff may now possess as many approved religious items as will fit in his religious property box, including religious books, Plaintiff's claim that ADC's previous limitations on the possession of religious property violated RLUIPA is now moot. During the final pretrial conference, however, Plaintiff claimed that DO 904 has "other problems" that he believed required that the matter not be dismissed. Specifically, Plaintiff claimed that not all of his requested religious items have been approved and that the policy prohibits him from receiving "donated" items for the practice of his religion by 4
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requiring that they be purchased from an approved source.4 Contrary to Plaintiff's claim, the only issue that remained in Count II of his complaint was his claim that ADC's former policy placed a numerical limit on the items he requested, i.e., his claim that "defendants have made a blanket ban on all religious items in excess of seven (7) without taking into consideration the needs of any particular religious belief." (Dkt. #1 at p. 5; Dkt. #6 at pp. 3-4.) Given the nature of his claim, and the documents he has filed regarding steps taken prior to bringing suit, any claim regarding which religious items have not been approved, and whether he can have religious items donated instead having to purchase them have not been exhausted. Specifically, in his Complaint, Plaintiff alleged that ADC did not consider any item for approval beyond the original limitation of seven. At the time Plaintiff brought this action, the disapproval of his requested religious items was a blanket disapproval based on a numerical limit. Disapproval of those religious items was not made on an item by item basis for purposes of determining if the restriction was the least restrictive given ADC's security concerns. Additionally, given the fact that this numerical restriction was only eliminated on July 11, 2005, and that he is only now able to seek approval to possess additional religious items shows that this issue has not been exhausted. A grievance denied on the basis that an item exceeded the numerical limitation does not satisfy a claim that a specific item was refused because it caused a security concern. The policy contains no requirement that the item be one stocked by the inmate store. DO 904 (effective July 11, 2005). Instead, if an item is approved for possession and is not available for purchase through an "approved source", subsection 1.1.4 permits an inmate to provide the name of a possible source for obtaining the approved item. Id. 5
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As for his claim that ADC policy does not allow an item to be donated, like his earlier claim regarding religious books, Plaintiff has provided no proof that he sought to have a religious item donated, that his request was rejected, and that he grieved that issue to the Director's level. At the time Plaintiff brought his suit, he was permitted to possess seven religious items and did so. The question of whether, after obtaining approval for additional items, he must purchase them from an approved vendor, is yet to be grieved. Thus, those claims should not be addressed in this now moot case. II. Legal Analysis. The federal courts are courts of limited jurisdiction; their powers circumscribed by the terms of Article III of the Constitution, which states that they may hear only "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. At the core of the case-or-controversy requirement lies the principle that the dispute before the court must be real and live at all times, not feigned, academic, or conjectural. Russman v. Board of Educ. of Enlarged City School Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). The requisite dispute must persist throughout the litigation. To sustain the court's jurisdiction, it is not 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. Lewis v. Continental Bank Corp., 494 U.S. 472, 47778 (1990). Thus, should the dispute dissolve at any time due to a change in circumstances, the case becomes moot. See DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974) (per curiam); Fox v. Bd. of Trustees, 42 F.3d 135, 139-40 & n. 2 (2d Cir. 1994). When a case 6
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becomes moot, the federal court lacks subject-matter jurisdiction and the matter must be dismissed. Fox, 42 F.3d at 140; Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001). "The question of mootness is . . . one which a federal court must resolve before it assumes jurisdiction." North Carolina v. Rice, 404 U.S. 244, 246 (1971). "Any decision on the merits of a moot case or issue would be an impermissible advisory opinion." Fla. Ass'n of Rehab. Facilities v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000). This Court is obligated to consider whether this action is moot. The exceptions to the mootness doctrine are narrow, and apply only in exceptional situations. Al Najjar, 273 F.3d at 1336 (quoting Dow Jones & Co. v. Kaye, 256 F.3d 1251, 1256 (11th Cir.2001)). In County of Los Angeles, the Supreme Court articulated a two-part test for mootness:

Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. We recognize that, as a general rule, voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. But jurisdiction, properly acquired, may abate if the case becomes moot because (1) it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. 440 U.S. at 631 (citations and quotations omitted). 7
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A matter is moot if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur and the interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Lindquist v. Idaho State Bd. Of Corr., 776 F.2d 851, 854 (9th Cir. 1985). That is true here. There is absolutely no indication that ADC will abandon the policy changes that have taken place. The policy changes are approved and in the process of being codified into a formal, published ADC administrative order that will be published to all inmates, including Plaintiff. Plaintiff acknowledged during the final pretrial conference that although the contemplated revisions to DO 909 (property policy) had not been finalized given the changes to DO 904 (religion policy), in practice, they had been implemented. He was permitted to possess more than seven religious items and was in the process of seeking approval of the items he desired. Given the fact that additional policy changes have been formally approved that have eliminated the numerical limitation, change the classification of religious books from books to religious items, and increased the size of the religious property box where these items are to be stored, this Court must presume that the issues have been mooted. Defendants have no history of adopting new regulations when faced with legal challenges only to subsequently revert back to the old procedure when the action was dropped. Under these circumstances, "the possibility that the challenged practice will be resurrected is purely a `speculative contingency' that is insufficient to cause a case to survive a motion to dismiss on mootness grounds." Burbank v. Twomey, 520 F.2d 744, 8
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748 (7th Cir. 1975) (upholding dismissal of prisoner lawsuit as moot when defendant voluntarily changed allegedly offensive policy and published the change, and there was no indication that it had a history of thwarting court proceedings by mooting issue only to return to allegedly offensive behavior once suit dismissed). Here, like Burbank, there is absolutely no reasonable indication that ADOC will abandon its recently made religious property-policy changes once the case is dismissed. The matter is moot and this Court must dismiss. III. Defendants Linderman, Walters and Hofmann Must Be Dismissed As They Cannot Provide Plaintiff the Injunctive Relief He Seeks. Assuming this Court denies Defendant's Motion to Dismiss as Moot, 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 constitutionality of the former religious property policy in question. Defendant Walker was named because she followed the policy implemented by the Director. They, however, do not control ADC policy and cannot provide Plaintiff the relief he seeks. That function is that of the Director of ADC, Defendant Schriro. 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-

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1604(B)(2)(d). Because Defendants Linderman, Walters and Hofmann cannot provide Plaintiff the relief he seeks--a policy change--they must be dismissed. IV. Conclusion. For the reasons stated above, Defendants respectfully requests that this Court dismiss this action as moot. ADC's religious and property policy changes allows Plaintiff to possess as many religious items that will fit into his religious property box as long as they do not pose a threat to the security of the institution. The injunctive relief sought by Plaintiff has been given in the form of the policy change noted. In the alternative, Defendants Linderman, Walker, and Hofmann, neither of which have control of ADC policy, respectfully request that this Court dismiss them from this action because they cannot provide the injunctive relief he seeks. RESPECTFULLY SUBMITTED this 20th day of September, 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 20th 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:

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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 #912907