Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. ROBERT A. HOOD, R. WILEY, and MICHAEL NALLEY, Defendants.

PROPOSED FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The Final Pretrial Conference was held on July 19, 2006, at 9:30 a.m., at the Alfred A. Arraj, United States Courthouse, 901 19th St., Denver, Colorado, 80294. Present at the conference were John Riley and Carmen Reilly, Montgomery, Little, Soran, Murray & Kuhn, P.C., representing Plaintiff Ahmed Ajaj. Representing Defendants were Assistant United States Attorneys Amanda Rocque and Elizabeth Weishaupl, United States Attorneys Office for the District of Colorado. 2. JURISDICTION Jurisdiction over Robert Hood, Ron Wiley, and Michael Nalley ("the Federal Officers") is appropriate pursuant to 28 U.S.C. §§ 1346, 1331, 1343, and 1361. 1

1

Service has not yet been returned on Wiley and Nalley. Plaintiff sent waivers of service on November 3, 2006. Defense counsel will attempt to obtain signatures for waivers as soon as possible and will promptly inform

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3. ELEMENTS OF CLAIMS AND STATEMENTS OF CLAIMS AND DEFENSES I. STATEMENT OF PLAINTIFF'S CLAIMS AND ELEMENTS OF CLAIMS Defendants have violated Mr. Ajaj's procedural due process rights with regard to his continued detention at ADX without a meaningful right to step down. Indefinite administrative detention at ADX, under the conditions that Mr. Ajaj is subject to, is a deprivation of his liberty interest. The notices denying Mr. Ajaj placement in step-down at ADX gives him notice of nothing, and therefore deprive Mr. Ajaj of any meaningful opportunity to either object to, or to appeal from, the denial of a step down.

Claim Three(B): Violation of the Fifth Amendment Due Process Clause against Hood, Wiley and Nalley, for Plaintiff's continued confinement at the ADX Plaintiff has burden of proof by a preponderance of the evidence Elements: (1) deprivation of a life, liberty or property interest; deprivation of a liberty interest is the imposition of atypical and significant hardship in relation to the ordinary incidents of prison life (a) Plaintiff's was deprived of a liberty interest by his transfer and continued confinement at the ADX as the ADX imposes atypical and significant hardships in relation to ordinary incidents of prison life. (Testimony of Plaintiff.) Plaintiff will testify to the conditions of confinement described above including extreme social isolation, limited outdoor activity which at times is not provided for weeks at a time, lock down for approximately 23 of 24 hours a day, limited ability to speak to other inmates unless yelling, limited access to telephones, limited nocontact visits, restraints each time he is moved within the institution, strip searches when enters and leave cells and exposure to high levels of noise. (Testimony of Plaintiff; Testimony of Brenda Clark and other ADX staff; Testimony of Omar Rezaq). When outdoor recreation is allowed, it is in small cages in the outdoor recreation yard. (Testimony of Plaintiff.) These conditions of confinement are atypical and significant hardships

Plaintiff's counsel of any problems. Because he is no longer an employee of the Bureau of Prisons, Defendant Hood maintains that he is not a proper Defendant for the remaining claim for injunctive relief and has filed a Motion to Clarify this Court's Order. (Doc.262).

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compared to Plaintiff's condition of confinement prior to his transfer to ADX and prior to September 11, 2001. (Testimony of Plaintiff.) (2) without due process of the law (a) The review process concerning Mr. Ajaj's continued confinement at the ADX is meaningless. (Testimony of Plaintiff.) In 2004, Mr. Ajaj met the criteria to step-down at the ADX, yet was denied the opportunity to step down. (Testimony of Plaintiff; Exhibit 6; Testimony of Mark Collins; Exhibit 24; Exhibit 6). On July 15, 2005, Mr. Ajaj was recommended for decrease, but was denied decrease due to his original conviction. (Exhibit 2). (b) Defendants continued to deny Plaintiff due process by his continued confinement at ADX because there is no objective process to determine who is stepped down at the ADX and Plaintiff has never been provided any justification for his original placement at the ADX. (Testimony of Defendant Hood, Burrell, Duncan, Chester- it is anticipated these witnesses will testify that the most critical factor in determining an inmate's readiness to progress to and through step-down program is subjective and will be whether the factors, which originally lead to the inmate's placement at ADX, have been sufficiently mitigated to indicate the inmate can function successfully in a less-restricted unit without posing a threat to the security or orderly running of the institution.) (d) Plaintiff was transferred to the ADX as part of the Bureau of Prisons decision that several groups of inmates would be placed in at the ADX following the events of September 11, 2001. (Testimony of Greg Hershberger; Exhibit 101-104). Mr. Ajaj cannot mitigate the fact of September 11, 2001 or his original conviction. There is nothing else Mr. Ajaj can do to mitigate the reason for his placement at the ADX. (Testimony of Plaintiff; Testimony of Defendant Duncan.) (e) Since Mr. Ajaj's placement in administrative detention on September 11, 2001 until the present, he has never received a hearing or the opportunity to meaningfully challenge his confinement at the ADX. (Testimony of Plaintiff). II. STATEMENT OF DEFENDANTS' DEFENSES AND ELEMENTS OF AFFIRMATIVE DEFENSES

Defendants Hood, Wiley and Nalley deny that they violated Plaintiff=s Fifth Amendment rights, and deny that Plaintiff is entitled to any injunctive relief for Claim 3(B) in the Complaint. Affirmative Defense to Claim Three: Lack of Process. 3

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Plaintiff bears the burden of proof of demonstrating that all Defendants have been served. Elements: (1) Plaintiff must demonstrate that all Defendants have been properly served. Plaintiff has not effected service on Defendants Nalley or Wiley.

a.

Defense to Claim Three: Failure to Exhaust Administrative Remedies. Plaintiff bears the burden of proof of demonstrating exhaustion of administrative remedies by a preponderance of the evidence. Elements: (1) Plaintiff has failed to exhaust his administrative remedies for Claim Three because an inmate's grievances must be sufficiently specific as to the nature of the grievance to give prison officials notice of the type of problem of which the inmate complains. Grievance 302265, Grievance 286714 and Grievance 290668, all of which were offered to prove exhaustion of Claim Three, do not address Plaintiff=s factual allegations that his transfer to and indefinite detention at the ADX were done without the requisite procedural due process. (Exhibit 29, Grievances 302265, 286714 and 290668). Claim Three should be dismissed because the PLRA requires exhaustion of administrative remedies as a Aprecondition@ to bringing litigation, and requires dismissal where a litigant has failed to complete such exhaustion prior to initiating a lawsuit. Plaintiff initiated this lawsuit on October 2, 2003. (Docket No. 3, Complaint). Plaintiff failed to properly exhaust Claim Three prior to initiating this lawsuit on October 2, 2003. See Paragraph (1), supra.

a.

(2)

a.

b.

Defense to Claim Three: Failure to State a Claim Plaintiff bears the burden of proving that his Fifth Amendment rights were violated. Elements: (1) Plaintiff must demonstrate that the Federal Officers= actions violated the Fifth Amendment Due Process Clause Plaintiff has been afforded all of the process that he was due concerning his advancement through the step-down program at the ADX. 4

a.

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i.

Program Reviews are held at least once every six months and are conducted to monitor and evaluate the inmate=s progress in all program areas. The Program Review Report (PP-55) documents team meetings. (Testimony of Tomas Gomez). Plaintiff received Program Review Reports on August 5, 2003; February 11, 2004; August 9, 2004; January 13, 2005; July 12, 2005; November 30, 2005; and May 5, 2006. (Exhibits 1, 3, 4, 21, 35, 36, 41; Testimony of Tomas Gomez, Mark Collins, Tena Sudlow, Rich Madison). A Progress Report is the primary document used by the Unit Team to evaluate the behavior and activities of inmates. The Progress Report is a detailed comprehensive account of an inmate=s case history, prepared by the Case Manager at prescribed intervals during the inmate=s confinement. A Progress Report is required, at a minimum, once every three years. (Testimony of Tomas Gomez, Mark Collins, Tena Sudlow, Rich Madison). Plaintiff received a Progress Report on January 25, 2005. (Exhibit 6; Testimony of Tomas Gomez, Mark Collins, Tena Sudlow, Rich Madison). Plaintiff=s advancement through the Step-Down Program is reviewed every six months by members of his Unit Team. Plaintiff is able to challenge any recommendations and decisions made by his Unit Team through the Administrative Remedy program. He may also request a Special Unit Team review at any time and challenge the recommendations and decisions through the Administrative Remedy Program. (Testimony of Tomas Gomez, Mark Collins, Tena Sudlow, Rich Madison). Plaintiff has challenged his advancement through the StepDown Program through the Bureau=s Administrative Remedy Program. (Testimony of Tomas Gomez, Mark Collins, Tena Sudlow, Rich Madison).

ii.

iii.

iv.

v.

vi.

Defense to Claim Three: Mootness Plaintiff bears the burden of proving that Claim 3(B) presents an actual controversy. Elements: (1) Plaintiff must demonstrate that Claim 3(B) presents an actual controversy. 5

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a.

Plaintiff has been placed in the step-down program as of January 4, 2007. (Testimony of Mark Collins.) Therefore his request for injunctive relief--i.e., to be placed in that program--is moot.

4. STIPULATIONS 1. 2. Ahmed Ajaj ("Plaintiff") is an inmate in the custody of the Bureau of Prisons. Plaintiff is currently incarcerated at the United States Penitentiary, Administrative Maximum ("ADX") located in Florence Colorado. 3. The parties agree that Plaintiff's claims are temporally limited from September 2, 2002 to the present regarding the circumstances of Mr. Ajaj's transfer to and incarceration at the ADX. [Transfer to ADX is no longer at issue] 4. Plaintiff was transferred to the ADX on September 4, 2002, and has been housed at the ADX since that time. 5. Plaintiff was housed in the H Unit at the ADX from September 4, 2002 until October 3, 2002. 6. Plaintiff was housed in the F Unit at the ADX from October 3, 2002 until July 27, 2005. 7. Plaintiff was housed in the D Unit at the ADX from July 27, 2005 until September 28, 2005. 8. Plaintiff was housed in the Z Unit, which is the Special Housing Unit, at the ADX from September 28, 2005 until December 6, 2005. 9. Plaintiff has been housed in the D Unit from December 6, 2005 until January 4, 2007.

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10.

Plaintiff has been housed in the K Unit from December 6, 2005 until January 4, 2007.

11. 12.

Plaintiff was housed at FCI Edgefield from February 2001 through August 2002. Plaintiff was placed into administrative segregation in the Special Housing Unit at FCI Edgefield on September 11, 2001 and remained there until August 28, 2002, just prior to his transfer to the H unit at the ADX on September 4, 2002.

13. 14.

Hood was employed as the Warden at the ADX from 2002 until April 2005. Burrell was employed as the Associate Warden for Programs at the ADX from December 2001 until November 2003.

15.

Chester was employed as the Associate Warden for Programs at the ADX from January 2004 until August 2005.

16.

Duncan was employed as the Associate Warden for Operations at the ADX from 2000 until February 2004.

17.

Zuercher was employed as the Associate Warden for Operations at the ADX from February 2004 until August 2005.

18.

Plaintiff was denied step-down to the Intermediate K Unit on April 12, 2004, October 22, 2004, and April 12, 2005.

19. 20.

Plaintiff was granted step-down to the Intermediate K Unit on January 4, 2007. On August 28, 2002, Mike Junk, Regional Designator for the North Central Region, sent an email to Kenny Atkinson stating that Greg Hershberger, Regional Director for the Bureau's North Central Region, had approved Plaintiff for transfer from FCI Edgefield to the ADX.

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21.

Plaintiff was placed on single recreation status at the ADX on May 5, 2004 and removed from single recreation status on May 27, 2004.

22. 23. 24.

As of August 2, 2004, Plaintiff was on group recreation at the ADX. As of December 7, 2004, Plaintiff was on group recreation at the ADX. Since his arrival at the ADX, Plaintiff has participated in and completed several independent studies facilitated by Michael Morrison, Ph.D. Plaintiff participated in these independent studies on the following dates and has completed coursework for the following amounts of time: a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. 1/13/2005 - 2/11/2005, 39 hours 12/15/2004 - 1/13/2005, 48 hours 10/1/2004 - 10/15/2004, 3 hours 9/4/2004 - 10/1/2004, 65 hours 8/4/2004 - 9/2/2004, 72 hours 7/20/2004 - 7/29/2004, 4 hours 7/3/2004 - 8/3/2004, 57 hours 7/3/2004 - 8/4/2004, 12 hours 6/8/2004 - 7/8/2004, 24 hours 5/21/2004 - 6/24/2004, 24 hours 4/28/2004 - 5/27/2004, 18 hours 4/11/2004 - 4/28/2004, 45 hours 3/26/2004 - 4/10/2004, 3 hours 2/7/2004 - 3/7/2004, 9 hours 1/27/2004 - 2/11/2004, 9 hours 8

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p.

1/6/2004 - 3/20/2004, 40 hours 5. PENDING MOTIONS

On January 9, 2007, Defendant Hood filed a motion to clarify or amend the Court's December 22, 2005 Order. Mr. Ajaj was placed into the step-down program as of January 4, 2007. The parties are discussing whether this development renders the Plaintiff's remaining claim moot and whether it would be appropriate to move for the dismissal of this action. The parties intend to file a motion on this issue very soon once they have had the opportunity to discuss specific remaining issues with their respective clients. 6. WITNESSES I. Stipulated Witness List and Estimated Trial Time See Attachment 1, Stipulated Witness List. II. Plaintiff's Witnesses 1. Robert Hood Community Education Centers 2925 East Las Vegas Street Colorado Springs, Colorado 80906

Mr. Hood is a defendant in this lawsuit and will be called or cross-examined regarding his knowledge of the remaining claim raised in the Third Amended Complaint and to any matter raised in his deposition. 2. James Burrell Federal Bureau of Prisons 400 First Street, N.W. Washington, D.C.

Mr. Burrell may be called or cross-examined regarding his knowledge of the remaining claim raised in the Third Amended Complaint and to any matter raised in his deposition. 3. Claude Chester Federal Bureau of Prisons 9

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North Central Regional Office 400 State AvenueTower II, Suite 800 Kansas City, KS 66101 Mr. Chester may be called or cross-examined regarding his knowledge of the remaining claim raised in the Third Amended Complaint and to any matter raised in his deposition.

4.

David Duncan Federal Bureau of Prisons Western Regional Office 7950 Dublin Blvd. 3rd Floor Dublin, CA 94568

Mr. Duncan may be called or cross-examined regarding his knowledge of the remaining claim raised in the Third Amended Complaint and to any matter raised in his deposition. 5. Ahmed M. Ajaj United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Ajaj is the Plaintiff in this lawsuit and will be called to testify regarding any issue raised in the Third Amended Complaint, the conditions of his confinement at ADX, his knowledge of the institution, his health condition and as to any matter raised in his deposition. 6. Dr. Stuart Grassian

Dr. Grassian will testify consistent with his expert reports and supplemental expert reports, based on his expertise and review of the evidence in this matter, his interview of Ajaj, and other information including deposition testimony and expert reports of Dr. Metzner, and consistent with his opinions expressed in his deposition testimony. Anatomical models, summaries, drawings, animations, photographs, video and/or other demonstrative exhibits may be used to explain his testimony, along with any medical literature or text discussed in his endorsement or reports, referenced in his curriculum vitae, or endorsed in compliance with the Rules. 7. Mark Collins United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Collins is a Unit Manager at the United States Penitentiary, Administrative Maximum, and may testify regarding his knowledge of the BOP, the Unit Management Team, 10

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the step down process, Mr. Ajaj and as to his knowledge of the issues raised in Plaintiff's Third Amended Complaint. 8. Vindel Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Sudlow is a Case Manager at the United States Penitentiary, Administrative Maximum, and may be called to testify regarding his knowledge of the BOP, the step down process, the inmates at ADX, their interactions with others, Mr. Ajaj, his knowledge and conversations with Mr. Ajaj and other information pertaining to Plaintiff's claims. 9. Rich Madison United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Madison is a Counselor at the ADX, and may testify regarding his knowledge of the BOP, the step down process, Mr. Ajaj, his interactions with Mr. Ajaj and conversations regarding Mr. Ajaj, and his knowledge regarding Plaintiff's claims. 10. Tena Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Ms. Sudlow is a Case Manager at the United States Penitentiary, Administrative Maximum, and may testify regarding her knowledge of the BOP, the Unit Management Team, the ranges and services provided to inmates at BOP, her knowledge of the step down process, her conversations with Mr. Ajaj and others, her knowledge of Mr. Ajaj, and her knowledge regarding Plaintiff's claims. 11. Greg Hershberger Retired from Bureau of Prisons No Address Known

Mr. Hershberger was the Regional Director, North Central Region, and may be called to testify regarding Mr. Ajaj's transfer to the ADX, reasons for his transfer, his knowledge of the BOP, his knowledge of the ADX and the step-down program, his knowledge of inmates who have been stepped-down and/or transferred out of the ADX and any other issues pertaining to the Mr. Ajaj's claims. 12. Omar Rezaq United States Penitentiary, Administrative Maximum 11

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P.O. Box 8500 Florence, Colorado 81226 Mr. Rezaq is an inmate at ADX and may be called to testify regarding the conditions of confinement at the ADX, his knowledge of ADX, and other matters related to Plaintiff's claims. 13. Michael Cooksey Retired from Bureau of Prisons No Address Known

Mr. Cooksey was the Assistant Director, Correctional Programs, and may called to testify regarding Mr. Ajaj's transfer to and confinement at the ADX, the BOP and other information pertaining to the claims raised in the Third Amended Complaint. 14. Brenda Clark United States Penitentiary, Florence Camp P.O. Box 8500 Florence, Colorado 81226

Ms. Clark was Plaintiff's unit counselor from October 2005 until June 2006. Ms. Clark may testify regarding her knowledge of the BOP, the conditions of confinement in the ADX units, access to outdoor recreation, the step down process, Mr. Ajaj and as to her knowledge of the issues raised in Plaintiff's Third Amended Complaint. 15. 16. III. Any witness or expert witness listed by Defendants. Any witness as necessary for foundation or impeachment or rebuttal.

Defendants' Witnesses 1. Ahmed M. Ajaj United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Ajaj is the Plaintiff in this lawsuit and will be called or cross-examined regarding the remaining claim in the Third Amended Complaint. Robert Hood Community Education Centers 2925 East Las Vegas Street Colorado Springs, Colorado 80906 Mr. Hood is a defendant in this lawsuit and may testify regarding his knowledge of the remaining claim raised in the Third Amended Complaint and to any matter raised in his deposition. 12 2.

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3.

Claude Chester Federal Bureau of Prisons North Central Regional Office 400 State Avenue Tower II, Suite 800 Kansas City, KS 66101

Mr. Chester may testify regarding his knowledge of the BOP, Mr. Ajaj, and the remaining claim raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 4. J.C. Zuercher Federal Correctional Institution P.O. 6500 Florence, Colorado 81226

Mr. Zuercher may testify regarding his knowledge of the BOP, Mr. Ajaj, and the remaining claim raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 5. Mark Collins United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Collins is a Unit Manager at the United States Penitentiary, Administrative Maximum, and may testify regarding his knowledge of the BOP, the Unit Management Team, the step down process, Mr. Ajaj, and his conversations with Mr. Ajaj. Mr. Collins may also testify about his knowledge regarding the remaining claim raised in the Third Amended Complaint. 6. Rich Madison United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Madison is a Counselor at the United States Penitentiary, Administrative Maximum, and may testify regarding his knowledge of the BOP, the Unit Management Team, the step down process, Mr. Ajaj, and his conversations with Mr. Ajaj. Mr. Madison may also testify about his knowledge regarding the remaining claim in the Third Amended Complaint. 7. Tommy Gomez United States Penitentiary, Administrative Maximum P.O. Box 8500 13

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Florence, Colorado 81226 Mr. Gomez is a Unit Manager at the United States Penitentiary, Administrative Maximum, and may testify regarding his knowledge of the BOP, the Unit Management Team, the ranges and services provided to inmates at BOP, the step-down process, the review process, his conversations with Mr. Ajaj, his knowledge of Mr. Ajaj, and his knowledge regarding the remaining claim raised in the Third Amended Complaint. 8. Tena Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Ms. Sudlow is a Case Manager at the United States Penitentiary, Administrative Maximum, and may testify regarding her knowledge of the BOP, the Unit Management Team, the ranges and services provided to inmates at BOP, the step-down process, her conversations with Mr. Ajaj and others, her knowledge of Mr. Ajaj, and her knowledge regarding the remaining claim in the Third Amended Complaint. 9. T.G. Werlich Unit Manger United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Werlich is a Unit Manager at ADX and he may testify regarding his knowledge of the BOP, the Unit Management Team, the ranges and services provided to inmates at the ADX, the step-down process, the interaction with inmates, and services available to them, his conversations with and knowledge of Mr. Ajaj, and his knowledge regarding the remaining claim in the Third Amended Complaint. 10. Bryan Bunch Correctional Officer United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Bunch is a Correctional Officer at ADX and may testify regarding his knowledge of the BOP, the ranges and inmates at the ADX, the conditions of confinement at the ADX, the recreational opportunities on ranges, the interaction with inmates, his conversations with and knowledge of Mr. Ajaj, and his knowledge regarding the remaining claim in the Third Amended Complaint. 11. Keith Saunders Correctional Officer 14

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United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226 Mr. Saunders is a Correctional Officer at ADX and may testify regarding his knowledge of the BOP, the ranges and inmates at the ADX, the recreational opportunities on ranges, inmates= interaction with other inmates, conditions of confinement at the ADX, his conversations with and knowledge of Mr. Ajaj, and his knowledge regarding the remaining claim in the Third Amended Complaint. 12. Vindel Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Sudlow is a Case Manager at the United States Penitentiary, Administrative Maximum, and may be called to testify regarding his knowledge of the BOP, the inmates at ADX, the conditions of confinement at the ADX, inmates= interactions with other individuals, his knowledge of and conversations with Mr. Ajaj, and other information pertaining to the remaining claim in the Third Amended Complaint. 13. S. Nafzinger, M.D. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Nafzinger is a treating physician of Plaintiff=s at the ADX, and may be called to testify as to Plaintiff=s care and treatment, prognosis, orders, the medical care provided to inmates at ADX Florence, his review and opinions concerning Mr. Ajaj, and any other issues within the scope of his care and treatment of Plaintiff. 14. Michael Cooksey Retired from Bureau of Prisons No Address Known

Mr. Cooksey was the Assistant Director, Correctional Programs, and may testify regarding information pertaining to the remaining claim in the Third Amended Complaint. 15. Les Smith F.B.I. Headquarters 935 Pennsylvania Avenue Washington, D.C. 20535

Mr. Smith was formerly a Special Investigative Agent at the United States Penitentiary, Administrative Maximum, and may testify regarding information pertaining to the claims raised 15

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in the Third Amended Complaint, including but not limited to any investigations or security concerns involving Plaintiff. 16. Jeffrey L. Metzner, M.D. 3300 East First Avenue, Suite 590 Denver, CO 80206 (303) 355-6842

Dr. Metzner will testify consistent with his expert report, based on his expertise and review of the evidence in this matter, his interview of Ajaj, and other information including deposition testimony and expert reports of Dr. Grassian, and consistent with his opinions expressed in his deposition testimony, if taken. Anatomical models, summaries, drawings, animations, photographs, video and/or other demonstrative exhibits may be used to explain his testimony, along with any medical literature or text discussed in this endorsement, referenced in his curriculum vitae, or endorsed in compliance with the Rules. 17. John M. Vanyur, Ph.D. Federal Bureau of Prisons 320 First Street, N.W. Room 454 Washington, D.C. 20534 (202) 307-3226

Dr. Vanyur will testify consistent with his expert report, based on his expertise and review of the evidence in this matter, including deposition testimony and expert reports, and consistent with his opinions expressed in his deposition testimony, if taken. Anatomical models, summaries, drawings, animations, photographs, video and/or other demonstrative exhibits may be used to explain his testimony, along with any medical literature or text discussed in this endorsement, referenced in his curriculum vitae, or endorsed in compliance with the Rules. 18. Any witness, including but not limited to other treating physicians and health care providers as necessary to rebut or authenticate records. 19. 20. Any witness or expert witness listed by Plaintiff Any witness as necessary for foundation, impeachment or rebuttal. 7. EXHIBITS See Attachment 2, Joint Exhibit List. 8. DISCOVERY Discovery is now complete.

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9. SPECIAL ISSUES Plaintiff intends to file a motion requesting to be present in person at trial. Witnesses from the ADX or other institutions within the Bureau of Prisons will have to appear telephonically at trial. It is also anticipated that Dr. Grassian may testify by telephone or videoconferencing and that Mr. Hershberger's testimony may be provided via his videotaped deposition.

10. SETTLEMENT Counsel for the parties have in good faith discussed settlement issues. The parties are discussing entry into a settlement agreement in light of his step-down. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. 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 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. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. Trial is to the Court. 17

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2.

The parties estimate that trial will take three (3) days.

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DATED this _____ day of _____________ 2007. BY THE COURT:

____________________________________ District Court Judge

APPROVED: TROY A. EID United States Attorney

s/ Carmen Reilly Carmen Reilly John Riley Montgomery Little Soran Murray & Kuhn, P.C. 5445 DTC Parkway, #800 Englewood, CO 80111-3053 Attorney for Plaintiff 303-773-8100 [email protected] Attorney for Plaintiff

s/ Amy Padden Amy Padden Amanda Rocque Elizabeth Weishaupl Assistant United States Attorneys Office of the United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 303-454-0100 303-454-0404 [email protected] [email protected] [email protected] Attorneys for Defendants