Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01049-EWN-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04-cv-01049-EWN-PAC MITCHELL GARRAWAY Plaintiff, v. KENNETH LINCOLN, LEE RITTENMEYER, MARK ROBLES, Defendants. ________________________________________________________________________ FINAL PRETRIAL ORDER ________________________________________________________________________ 1. DATE OF CONFERENCE Date of Final Pretrial Conference: Friday, December 22, 2006, at 10:30 a.m. Counsel for Plaintiff: Plaintiff, pro se Counsel for Defendants: Mark S. Pestal and Amy L. Padden, Assistant United States Attorneys 2. JURISDICTION This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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3. CLAIMS AND DEFENSES A. Plaintiff's Claims: I, Mitchell T. Garraway, the plaintiff in the above captioned civil action, claim defendants Kenneth Lincoln, Lee Rittenmeyer, and Mark Robles violated my Eighth Amendment right prohibition against cruel and unusual punishment on February 12, 2003, on or about 9:15A.M., in the Special Housing Unit's lieutenant's office at U.S.P.Florence, Colorado. While docile and while wearing hand and leg restraints, Robles struck me in the chest in an attempt to cause me to fall backwards. Lincoln then struck me in my jaw three times. In his second attempt cause me to fall, Robles used his foot to anchor the leg iron chain attached to my ankles, and used his forearms to strike me in the face and neck, violently, causing me to fall. As I lay on the floor, Rittenmeyer jerked violently on my hand restraints causing abrasions and kicked me in my face causing cuts and abrasions. As a result of this un-warranted an unprovoked assault, I originally sought $15,000.00 dollars in punitive damages and $15,000.00 in compensatory damages from each Lincoln, Rittenmeyer, and Robles. I have also submitted a settlement offer in which, among other things, I request $80,000.00. Force was not applied in a good faith effort to restore discipline. Statement from a staff witness that I was re-strained, docile, and not aggressive indicates that force was applied in my case "maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, at 4, 7-9, 503 U.S. 1(1992).

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"Where no ligitimate (sic) penological (sic) purpose can be inferred from a prison employee's alleged conduct ... the conduct itself constitutes sufficient evidence that force was used `maliciously and sadistically for the very purpose of causing harm.' " Giron v. Corr. Copr. Of Am., 191 F.3d 1281, 1290(10th Cir. 1999)(quoting Whitley v. Albers, 475 U.S. 312, 320-321)(1986). Defendants Lincoln, Rittenmeyer, and Robles claim I am unable to present evidence that I was subject to a violation of my Eighth Amendment rights. They further claim that I made a threatening move towards officers. This claim has been disproven by the statements of officer Santiago who said I was docile and not aggressive or assaultive and be the defendant Bureau of Prisons' own expungement of the 12 Feb 03 charge of attempted assault. B. Defendants' Defenses: The defendants deny that plaintiff's constitutional rights were violated when he was present in Lieutenant Rittenmeyer's office at the United States Penitentiary in Florence, Colorado (USP Florence) on February 12, 2003. Although plaintiff, a federal inmate serving a life sentence for murder, was ordered to report to the Special Housing Unit (SHU) Lieutenant's office, he refused. As a result of his refusal, after being restrained, he was escorted by several correctional officers to the office. After being seated in a chair in the office, Garraway moments later got out of the chair without permission and lunged at the escorting officers. Because he posed an immediate physical

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threat to the safety of the officers present, he was subdued with reasonable and necessary force. The use of reasonable force by the defendants and other officers was done in a good faith effort to restore order and protect the safety of the officers present and the institution. At no time did the defendants (or the other officers present) act with a malicious or sadistic motive to cause plaintiff injury or pain. The force used did not cause Garraway more than de minimis, if any, physical injury. 4. STIPULATIONS None at this time. 5. PENDING MOTIONS Plaintiff has filed a motion to compel discovery. 6. WITNESSES a. Non-Expert Witnesses

Plaintiff's Will Call Witnesses (1) Kevin Grigsby FCI-Florence, P.O. Box 6500 5880 State Highway 67 South Florence, CO 81226.

To testify in person. Telephone unknown. (2) Steven Santiago FCC-Coleman 811 Northeast 54 th Terrace Coleman, FL 33521-8997 (352)330-3050

To testify in person. 4

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(3)

Claude Spann FCI-Bastrop, P.O. Box 730 Highway 95 Bastrop, TX 78602 (512) 321-3903

To testify in person. (4) Denise Huett Bureau of Prisons Office of Internal Affaris 791 Chambers Road, Suite 500 Aurora, CO 80011

To testify in person. Phone unknown. (5) Hector Alfonso Rios USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226

To testify in person. (6) Mike Maroni USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9423

To testify in person. (7) Guy Drennan FCI-Leavenworth 1300 Metropolitan Ave. Leavenworth, KS 66047 (913) 682-8700

To testify in person.

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(8)

Joseph Gunja Bureau of Prisons, Western Regional Office 7590 Dublin Blvd., 3 rd Floor Dublin, CA. (925) 803-4700.

To testify in person. (9) Abraham Celest Santos-Collins FMC-Springfield 1900 West Sunshine, P.O. Box 4000 Springfield, MO 65801-4000 (417) 862-7041

To testify in person. (10) Leonel Ortega Federal Bureau of Prisons, Central Office 320 First Street, N.W., Washington, D.C. (202) 305-3800.

To testify in person. Phone unknown. (11) Benjamin Valle FCI-Herlong, P.O. Box 900 741-925 County Road, A-25 Herlong, CA 96113

Unable to locate phone number. To testify in person. (12) Dale Grafton Federal Correctional Complex, USP-Coleman 846 NE 54 th Terrace, P.O. Box 1023 (Staff Mail) Coleman, FL 33521-1029

Unable to locate phone number. To testify in person.

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(13)

Richard Sams USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9423

To testify in person. Defendants' Will Call Witnesses The following witnesses will testify in person. (1) Kenneth Lincoln Lieutenant USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454 Mark Robles Senior Officer Specialist USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454 Lee Rittenmeyer Lieutenant, Emergency Preparedness Officer USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454 Celeste Collins Mid-Level Practitioner U.S. Medical Center for Federal Prisoners 1900 W. Sunshine St. Springfield, MO 65807-2240

(2)

(3)

(4)

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(5)

Andrew Watson Senior Officer Specialist USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454

Defendants' May Call Witnesses: The following witnesses may be called to testify in person. (1) Dale Grafton Case Manager UPS Coleman II, P.O. Box 1024 Coleman, FL 33521-1024 (352) 689-7000 Leonel Ortega Lieutenant FCI Three Rivers Highway 72 West ThreeRivers, TX 78071 (361) 786-3576 Hector Rios Warden USP Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454 Richard Sams Counselor USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454

(2)

(3)

(4)

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(5)

Steven Santiago Senior Officer Specialist USP Coleman II, P.O. Box 1024 Coleman, FL 33521-1024 (352) 689-7000 Claude Spann Senior Officer FCI Bastrop, P.O. Box 730 1341 Highway 95 North Bastrop, TX 78602 (512) 321-3903 Benjamin Valle Lieutenant FCI Herlong, P.O. Box 9000 741-925 Herlong Access Rd. A-25 Herlong, CA 96113 (530 827-8000 Mike Maroni Inmate Systems Officer USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454 Bureau of Prisons Records Custodian Any witness needed for foundation, impeachment, or rebuttal. Any witness listed by plaintiff. Expert Witnesses

(6)

(7)

(8)

(9) (10) (11) b.

The parties do not intended to call any expert witnesses endorsed pursuant to Fed. R. Civ. P. 26(a)(2).

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7. EXHIBITS Plaintiff: 1. 2. 3. 4. 5. 6. Incident Report No. 1074859, dated 12 Feb 2003. Memo from L. Rittenmeyer to L. Ortega, 12 Feb 2003. Memo from K. Lincoln to Lt. Rittenmeyer, 12 Feb 2003. Memo from M. Robles to L. Rittenmeyer, 12 Feb 2003. Memo from A.Watson to L. Rittenmeyer, 12 Feb 2003. USP-Florence Special Housing Unit Staff Visiting-Sign In Log,

Department-C-Unit Team, Sunday through Saturday. 7. 8. 9. 10. 11. 12. 13. Memo from R. Sams to Operations Rittenmeyer, 12 Feb 2003. Memo from D. Grafton to Lieutenant Rittenmeyer, 12 Feb 2003. Inmate Injury Assessment and Followup, 12 Feb 2003. Form 583 - Report of Incident, 12 Feb 2003. Form 586 - After Action Review Report, 12 Feb 2003. Memo from C. Spann to L. Rittenmeyer, 12 Feb 2003. Interrogatories for Officers C. Spann and Santiago. Regarding 12 Feb 2003

Incident Report, 3 May 03. 14. 15. Discipline Hearing Officer Report-Inmate Copy, BP-5305.052. USP-Florence Special Housing Unit Staff Visiting-Sign In Log,

Department: Duty Officer, Other, 9 Feb 03, Sunday through Saturday.

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16.

Memo from Mitchell Garraway 38096-066 to Mr. Drennan, Re: Removal of

Clothing, 12 Feb 2003. 17. USP-Florence Special Housing Unit Staff Visiting-Sign In Log,

Department: Warden, AWO, AWP. 18. Memo from Mitchell Garraway 38096066 to Mr. Gunja, Warden, Re:

Removal of Clothing, 12 Feb 2003. 19. 20. 21. Restraint Application Review Form, Shift: Evening Watch, 12 Feb 2003. Restraint Application Review Form, Shift: Evening Watch, 13 Feb 2003. Memo from Mitchell Garraway 38096066 to Mr. Ortega, Captain, Re:

Removal of Clothing, 12 Feb 2003. 22. Memo from Mitchell Garraway 38096066 to Mr. Rios, Assistant Warden,

Re: Removal of Clothing, 12 Feb 2003. 23. 24. 25. 26. 27. 28. 29. 30. Restraint Application Review Form, Shift: Day Watch, 12 Feb 2003. Restraint Application Review Form, Shift: Morning Watch, 13 Feb 2003. Restraint Application Review Form, Shift: Day Watch, 13 Feb 2003. Restraint Application Review Form, Shift: Day Watch, 14 Feb 2003. Special Housing Unit Log, 11 Feb 03 to 12 Feb 03. Special Housing Unit Log, 12 Feb 03, Morning watch continued. Special Housing Unit Log, 13 Feb 03, Morning watch, R. Esparza. Special Housing Unit Log, 14 Feb 03, Morning watch, A. Bradfield.

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31.

USP-Florence Special Housing Unit Staff Visit-Sign In Log,

Department: Health Services 32. USP-Florence Attempt at Informal Resolution, Form FLP 1330.13D, date

form issued: 18 Feb 03 to Mitchell Garraway, Reg. No 38096-066. 33. Request for Administrative Remedy, from Mitchell Garraway, dated 20 Feb

2003, BP-229(13). 34. USP-Florence Attempt at Informal Resolution, Form FLP 1330.13B, date

form issued: 30 Apr 03 to Mitchell T. Garraway, 38096-066. 35. Request for Administrative Remedy, from Mitchell Garraway, dated 16

May 03, BP-229(13). 36. Copy of envelope displaying certified mail and return receipt slips, mail to

J.E. Gunja, USP-Florence. 37. Request for Administrative Remedy, part B-Response, Inmate Name:

Garraway, Mitchell T., Case Number 302900-F1, 8 Jul 03. 38. Regional Administrative Remedy Appeal, from Mitchell Garraway, dated

14 Jul 03, BP-230(13). 39. Regional Administrative Remedy Appeal, Part B-Response, Name: Mitchell

Garraway, Case Number 302900-R1, 24 Jul 03. 40. 03. Memo to: Administrative Remedy Clerk, from: T. Quintana, dated 30 Sep

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41. 03. 42.

Memo to: Administrative Remedy Clerk, from: T. Quintana, dated 28 Aug

Receipt Administrative Remedy, date 25 Oct 03, from Administrative

Remedy Coordinator BOP Central Office, to: Mitchell T. Garraway, Remedy ID: 302900A1. 43. 44. Administrative Remedy Generalized Retrieval, 15 Jan 04. U.S. Government Memo-Federal Bureau of Prisons, date: 10 Dec 03, from:

Administrative Remedy Coordinator-National Inmate Appeals, to: Mitchell (sic) Garraway, Reg. No. 38096-066, USP-Florence. 45. USP-Florence Attempt at Informal Resolution, date form issued: 24 Dec 03

to Mitchell Garraway, 38096-066. 46. 47. 48. Plaintiff's Prisoner Complaint pursuant to 28 USC 1331. Plaintiff's Memorandum of Lay, date: 21 Jun 04. Memo for: J.E. Gunja, Warden, USP-Florence, from: G.L. Hershberger,

Regional Director, date: 6 March 2003. 49. 50. 51. 52. Ricardo Molina - USEOFFORCECHECK.wpd. BOP Program Statement 5566.05 - Use of Force/Use of Restraints. BOP Program Statement 3420.09-Standards of Employee Conduct. Discipline Hearing Officers Worksheet, Document 110.22, Filed 16 Sep 05

by the defendants, page 14 of 76, regarding Incident Report 1074859.

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Defendants' Exhibits 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Inmate Profile Inmate Discipline Data Judgment and Conviction Sentence Computation and Monitoring Data Daily Assignment Roster February 12, 2003 Assignment History Report Photographs of USP SHU Diagram of SHU Lieutenant's Office Inmate medical file Hand and leg restraints (for demonstrative purposes) Any exhibit listed by plaintiff. Any exhibit needed for foundation, impeachment, or rebuttal.

Copies of listed exhibits must be provided to opposing counsel no later than 30 days after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served (by electronic means, hand delivery or facsimile) no later than eleven days after the exhibits are provided. 8. DISCOVERY Discovery has not been completed. See next paragraph.

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9. SPECIAL ISSUES (1) Plaintiff: Counsel for defendants has not fulfilled discovery requests I believe are important for trial. Plaintiff's original discovery request was served on defendants prior to court imposed 1 Aug 05 deadline. I intend to submit to the court plaintiff's motion to compell discovery prior to entry of Final Pretrial Order. (2) Defendants: None. 10. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 11. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE a. b. c. Trial will be to a jury. Trial is anticipated to take 3 days. Trial Date: Trial Preparation Conference: 15

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DATED this ________ day of December, 2006. BY THE COURT:

________________________________ EDWARD W. NOTTINGHAM United States District Judge FINAL PRETRIAL ORDER TENDERED FOR REVIEW: TROY A. EID United States Attorney s/Mark S. Pestal Mark S. Pestal Amy L. Padden Assistant U.S. Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 303-454-0100 [email protected] [email protected] Attorneys for Defendants

Mitchell T. Garraway Reg. No. 38096-066 USP-Lewisburg P.O. Box 1000 Lewisburg, PA 17837 570-523-1251 Plaintiff, pro se

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