Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 983

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 IAFRATE & ASSOCIATES 649 North Second Avenue Phoenix, Arizona 85003 (602) 234-9775 Michele M. Iafrate, #015115 miafrate@iafratelaw.com Attorneys for Defendant Sheriff Chris Vasquez IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Albert Ramon Ibarra Tejeda, Plaintiff, vs. Sheriff Chris Vasquez, Defendant. ) ) ) ) ) ) ) ) ) ) NO. CV-07-712-PHX-NVW (MEA) DEFENDANT VASQUEZ'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS Defendant Sheriff Chris Vasquez, through his counsel undersigned, files this Reply in support of his Motion to Dismiss. Plaintiff's claim against Defendant Vasquez should be dismissed because Plaintiff failed to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. ง1997e(a). This Reply is supported by the following Memorandum of Points and Authorities. /// /// /// 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF ADMITS HE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES AND FAILED TO PROVIDE EVIDENCE OF UNAVAILABILITY OF ADMINISTRATIVE REMEDIES Plaintiff failed to exhaust the administrative remedies available to him prior to filing his law suit. An inmate must first exhaust administrative remedies before bringing suit. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Plaintiff cannot circumvent this requirement by unsupported statements that he was unable to do so. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Here, Plaintiff wrote a letter to the judge alleging that because the jail was so corrupt he could not file grievances. (Doc. #8) He stated that the grievance system recently started. (Doc. #8). However, Plaintiff's allegation is belied by his grievance history. Here, Plaintiff filed seven grievances that were unrelated to his Complaint. (See Doc. #5; Ex. 3, ถ 12.)This shows that a grievance system existed; Plaintiff was aware of the system; and Plaintiff used the system. However, Plaintiff failed to exhaust the administrative remedies regarding the issues raised in his Complaint. In his Response, Plaintiff fails to provide evidence that any officer denied him his administrative remedies or made them unavailable. General argument and speculation are insufficient to relieve Plaintiff of the statutory mandate to exhaust administrative remedies. See Neese v. Arpaio, 397 F.Supp.2d 1178, 1183 (D.Ariz. 2005). Defendant Vasquez has shown that administrative remedies were available to Plaintiff. Plaintiff failed to produce any evidence to the contrary. Plaintiff's letter was not served or sent to Defense counsel. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 II. CONCLUSION Therefore, Plaintiff's Complaint should be dismissed for failure to exhaust his available administrative remedies. DATED this 10th day of July, 2007. IAFRATE & ASSOCIATES By: s/Michele M. Iafrate Michele M. Iafrate Attorneys for Defendant Sheriff Chris Vasquez ORIGINAL of the foregoing electronically filed this 10th day of July, 2007, with: Clerk of the Court United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, AZ 85003 COPIES of the foregoing mailed this 10th day of July, 2007, to: Honorable Neil V. Wake UNITED STATES DISTRICT COURT Sandra Day O'Connor U.S. Courthouse 401 W. Washington St., Ste. 524, SPC 52 Phoenix, Arizona 85003 Honorable Mark E. Aspey United States Magistrate Judge UNITED STATES DISTRICT COURT 123 N. San Francisco St., Ste. 200 Flagstaff, Arizona 86001 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Albert Ramon Ibarr Tejeda #087108 Pinal County Jail PO Box 2610 Florence, Arizona 85232 By: s/Jill Lafornara 4

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