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. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, J.C. ZUERCHER, 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 United States of America, Robert Hood, James Burrell, Claude Chester, David Duncan, Jerome Zuercher, Ron Wiley, and Michael Nalley were Assistant United States Attorneys Amanda Rocque and Elizabeth Weishaupl, United States Attorneys Office for the District of Colorado.

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2. JURISDICTION Jurisdiction is appropriate in this matter as to the United States of America pursuant to the Federal Tort Claims Act, ("FTCA") 28 U.S.C. §§ 2671, et seq. Jurisdiction over Robert Hood, James Burrell, Claude Chester, David Duncan, Jerome Zuercher, Ron Wiley, and Michael Nalley ("the Federal Officers") is appropriate pursuant to 28 U.S.C. §§ 1346, 1331, 1343, and 1361. 3. ELEMENTS OF CLAIMS AND STATEMENTS OF CLAIMS AND DEFENSES I. STATEMENT OF PLAINTIFF'S CLAIMS AND ELEMENTS OF CLAIMS Ahmed Ajaj seeks injunctive relief and damages for his unlawful transfer and continued confinement at the United States Penitentiary Administrative Maximum in Florence Colorado. Plaintiff's conditions of confinement at the ADX impose atypical and significant hardship on him in relation to the ordinary incidents of prison life and his confinement in general population prior to September 11, 2001. Mr. Ajaj was denied due process, or process of any kind, prior to his transfer to the ADX. Mr. Ajaj's continued confinement at the ADX violates both his due process and equal protection rights. Regardless of the fact that Plaintiff was eligible for step-down within the ADX, he was denied placement in the step down program when other inmates within the ADX, convicted of similar crimes but who were not Palestinian Muslim, were allowed to step-down and transfer out of the ADX. There is no objective process for placing an inmate in the step down program at the ADX. Defendants violated the Eighth Amendment by knowingly breaching their duty of care to Mr. Ajaj by failing to follow medical instructions and housing him in an environment that is not 2

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suitable for his medical needs. During his incarceration at ADX, Plaintiff was exposed to environmental tobacco smoke and other pollutants when numerous doctors' had instructed Plaintiff to be in a smoke and pollutant free environment. Mr. Ajaj's need to be in a smoke-free environment is increased due to the fact that Mr. Ajaj has one lung due to a carcinoid tumor which required removal of his left lung. Additionally, Defendants transferred Plaintiff to a high altitude elevation when doctors' had previously instructed he would function better at lower elevations and when, prior to September 11, 2001, the Bureau of Prisons had transferred Mr. Ajaj out of Colorado to a lower altitude facility. Claim 1: Federal Tort Claims Act against the United States for negligence under Colorado law Plaintiff has the burden of proof by a preponderance of the evidence Elements: (1) duty (a) the parties stipulate the United States owes Plaintiff a duty of care under 18 U.S.C. §4042. (2) breach (a) Plaintiff's medical record contains multiple orders from physicians that he be housed in a smoke free environment. (Testimony of Plaintiff; Plaintiff's medical records; Testimony of Lawrence Leyba, D.O. - Dr. Leyba is expected to testify that he treated the Plaintiff and instructed that Plaintiff be in a smoke-free environment and that other physicians instructed Plaintiff needed to be in a smoke-free environment; Exhibit 19.) (b) Defendants did not keep Plaintiff in a smoke free environment during the period of his incarceration at ADX from September 2002 until July 2005. (Testimony of Plaintiff; Testimony of Defendants- it is expected Defendants will testify that there were no non-smoking units at the ADX until the entire facility became non-smoking; Testimony of Lawrence Leyba, D.O.; Testimony of Rod Bauer; e-mail from Rod Bauer to Claude Chester, Exhibit 5; Exhibit 11). (c) In July 1997 Mr. Ajaj underwent a left pneumonectomy as a result of a carcinoid tumor. (Testimony of Plaintiff; Exhibit 47; Exhibit 62.) 3

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(d) It was recommended by Springfield medical staff that Ajaj not be housed in a facility above 2000 feet due to the loss of one of his lungs. (Testimony of Dr. Leyba; Exhibit 62). The transfer summary dated February 19, 1998 indicates Plaintiff will experience limited exercise capacity at facilities more than 2,000 feet above sea level and should be considered for facilities lower than that. (Testimony of Plaintiff; Testimony of Dr. Leyba; Exhibit 62). (e) Subsequently, Mr. Ajaj was transferred out of Florence, Colorado in January 1998 to USP Beaumont in March 1998. (Testimony of Plaintiff; Testimony of Dr. Leyba; Exhibit 62). (f) After the events of September 11, 2001, Mr. Ajaj was placed in administrative detention and ultimately transferred to back to Colorado to the ADX in September, 2002. (Testimony of Plaintiff.) The only pulmonary function analysis that has been performed on Plaintiff was done in June, 2003. (Testimony of Plaintiff; Testimony of Dr. Leyba.) (3) causation (a) Defendants' breach of their duty by exposing Plaintiff to pollutants and environmental tobacco smoke caused Plaintiff's damages listed below. (Testimony of Plaintiff; Testimony of Dennis Clifford, M.D.; Plaintiff's medical records). (b) Defendants' transfer of Plaintiff to ADX has caused Plaintiff to experience symptoms described below. (Testimony of Plaintiff.) (4) damages (a) Plaintiff has exhibited numerous medical symptoms as a result of his exposure to environmental tobacco smoke. (Testimony of Plaintiff.) Defendants' breach of their duty of care to Plaintiff has also increased Plaintiff's risk of serious future harm, including an increased risk of future lung damage, accelerated loss of lung function and/or malignant transformation. (Testimony of Dennis Clifford, M.D.; Testimony of Plaintiff; Plaintiff's medical records.) (b) Since his arrival at ADX, Mr. Ajaj has experienced symptoms he attributes to being in Florence, Colorado, such as feelings of shortness of breath and feels he is unable to exercise which he attributes, in part, to the altitude of the ADX. (Testimony of Plaintiff).

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Claim Two: Violation of the Eighth Amendment against Hood, Burrell, and Duncan for deliberate indifference to Plaintiff's medical needs Plaintiff has burden of proof by a preponderance of the evidence Elements: (1) deliberate indifference (a) Upon his arrival to ADX in September, 2002, Mr. Ajaj complained verbally and in writing to Defendant Burrell, Hood and Duncan regarding his need to be placed in a smoke-free environment. (Testimony of Plaintiff; Testimony of Duncan, Hood and Burrell; Exhibit 44; Exhibit 71.) In an e-mail to Defendant Burrell on March 10, 2003 Dr. Leyba advised of Mr. Ajaj's need to be in a smoke free unit. (Exhibit 11). A memorandum was also prepared for Mr. Burrell regarding Mr. Ajaj's need for a smoke free environment. (Exhibit 13). Defendant Duncan is expected to testify that he had knowledge of Mr. Ajaj's need to be in a smoke-free unit. It is expected that Rod Bauer, the health director at the ADX, will testify that as of June 24, 2004, Mr. Ajaj was not being housed in a smoke free environment. (Exhibit 5, e-mail dated June 24, 2004 to Claude Chester from Rod Bauer.) (b) Plaintiff continuously complained verbally and in writing to Hood, Duncan and Burrell regarding this condition and filed administrative grievances regarding his need to be placed in a smoke free environment. (Testimony of Plaintiff; Exhibit 44, Exhibit 71). (c) The Defendants took no reasonable steps to respond to or abate the risk of harm to Plaintiff in order to comply with doctor's orders. (Testimony of Plaintiff; Exhibit 5). These Defendants did not take reasonable measures to abate the risk of harm in keeping him in smoking units at the ADX until 2005 as Plaintiff was not kept in a smoke free environment from the period of his incarceration at ADX from September 2002 until July 2005. (Testimony of Plaintiff; Testimony of Rod Bauer, Exhibit 5; Testimony of Defendant Duncan; Testimony of Omar Rezaq). (d) Upon his arrival to ADX, Mr. Ajaj immediately advised the Defendants Hood, Burrell and Duncan of his need to be in a low altitude environment. (Testimony of Plaintiff). Mr. Ajaj, subsequently filed administrative grievances regarding this issue. (Testimony of Plaintiff). In a memorandum to Defendant Hood on September 13, 2002, it indicates that "it was recommended by Springfield medical staff that Ajaj not be housed in a facility above 2000 feet due to the loss of one of his lungs." (Exhibit 44). The only pulmonary function analysis that has been performed on Plaintiff was done in June, 2003. (Testimony of Plaintiff; 5

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Testimony of Dr. Leyba.) (2) to serious medical needs (a) Plaintiff's medical record contains multiple orders from physicians that he be housed in a smoke free environment. (Testimony of Plaintiff; Testimony of Dr. Leyba- Dr. Leyba is expected to testify that he treated the Plaintiff and instructed that Plaintiff be in a smoke-free environment; Exhibit 19; Plaintiff's medical records.) (b) This was of particular concern for Plaintiff due to the fact that he only has one lung due to cancer which required removal of his left lung in June of 1997. (Testimony of Plaintiff; Testimony of Dr. Leyba; Plaintiff's medical records.) (c) Due to Defendants' conduct, Plaintiff has been placed at a serious risk of future harm as a result of his exposure to environmental tobacco smoke. (Testimony of Dennis Clifford, M.D.). Plaintiff has exhibited numerous medical symptoms as a result of his exposure to environmental tobacco smoke. (Testimony of Plaintiff.) (d) In July 1997 Mr. Ajaj underwent a left pneumonectomy as a result of a carcinoid tumor. (Testimony of Plaintiff; Exhibit 47; Exhibit 62.) (e) It was recommended by Springfield medical staff that Ajaj not be housed in a facility above 2000 feet due to the loss of one of his lungs. (Testimony of Dr. Leyba; Exhibit 62). The transfer summary dated February 19, 1998 indicates Plaintiff will experience limited exercise capacity at facilities more than 2,000 feet above sea level and should be considered for facilities lower than that. (Exhibit 62.) (f) Subsequently, Mr. Ajaj was transferred out of Florence, Colorado in January 1998 to USP Beaumont in March 1998. (Testimony of Plaintiff; Testimony of Dr. Leyba; Exhibit 62). (g) After the events of September 11, 2001, Mr. Ajaj was placed in administrative detention and ultimately transferred to back to Colorado to the ADX in September, 2002. (Testimony of Plaintiff.) Since his arrival at ADX, Mr. Ajaj has experienced symptoms he attributes to being at the high altitude in Florence, Colorado, such as feelings of shortness of breath and inability to exercise. (Testimony of Plaintiff).

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Claim Three: Violation of the Eighth Amendment against Hood, Burrell, Chester, and Duncan for deliberate indifference to Plaintiff's conditions of confinement Plaintiff has burden of proof by a preponderance of the evidence Elements: (1) inmate suffered substantial harm because of the deprivation of humane conditions of confinement (a) Mr. Ajaj's confinement at ADX includes 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 Omar Rezaq; Testimony of Brenda Clark; Testimony of Mark Collins). When outdoor recreation is allowed, it is in small cages in the outdoor recreation yard. Further, outdoor recreation at the ADX is often cancelled and is not regularly provided. (Testimony of Plaintiff). Outdoor recreation may not be provided at ADX for weeks at a time. (Testimony of Plaintiff). Mr. Ajaj was denied access to the outdoor yard for one year after he arrived at ADX due to his single recreation status. (Testimony of Plaintiff). Mr. Ajaj is unable to get adequate fresh air and exercise at ADX. (Testimony of Plaintiff). (b) Mr. Ajaj's confinement at ADX is indefinite. (Testimony of Plaintiff.) Despite having complied with the requirements for stepping down within ADX, he has continued to be denied placement in the step-down program. (Testimony of Plaintiff; Testimony of Mark Collins; Testimony of Defendants.) (c) Plaintiff has suffered psychological harm due to his confinement at ADX, including depression. (Testimony of Plaintiff.) Dr. Grassian will provide expert testimony regarding the harm suffered by Plaintiff and the risk of future harm as a result of Plaintiff's confinement at ADX. (Testimony of Dr. Grassian.) (2) the government official acted with a "sufficiently culpable state of mind" because the official knew plaintiff faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it (a) Mr. Ajaj verbally and in writing complained to Hood, Burrell, Chester and Duncan of his conditions of confinement. The Defendants were also aware of the conditions of confinement at ADX as a result of their employment as warden and associate wardens. Defendants have taken no 7

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reasonable measures to abate the risk of harm. (Testimony of Plaintiff; Testimony of Defendants; Testimony of Dr. Grassian.) Claim Three: Violation of the Fifth Amendment Due Process Clause against Hood, Burrell, Chester, and Duncan for Plaintiff's transfer to and 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 to the ADX as the ADX impose 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 no-contact 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; 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 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) Plaintiff did not receive the process he was due prior to his transfer to the ADX; Plaintiff received no process prior to his transfer to the ADX. (Testimony of Plaintiff.) He did not receive notice prior to his transfer, he did not receive a hearing or the opportunity to challenge his placement at the ADX. (Testimony of Plaintiff; Testimony of Regional Director Greg Hershberger.) Plaintiff did not have the opportunity to review and sign his progress review report prepared in anticipation of his transfer, which the Bureau of Prisons is required to do. (Testimony of Plaintiff; Testimony of Greg Hershberger; Exhibit 18). The Bureau of Prison's decision to place Mr. Ajaj in administrative detention and transfer him to the ADX occurred as a result of September 11, 2001, not because of his disciplinary history. (Testimony of Greg Hershberger.)

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(b) 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). (c) Defendants continue 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. (Testimony of Defendants- it is anticipated Defendants 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 less successful 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). Claim Five: Violation of the Fifth Amendment Equal Protection Clause against Hood, Chester, and Zuercher concerning failure to allow Plaintiff to step-down Plaintiff has burden of proof by a preponderance of the evidence Elements: (1) government treatment of an individual that is different than another who is similarly situated (a) Mr. Ajaj is a Palestinian Muslim. (Testimony of Plaintiff.) Since Mr. Ajaj has been incarcerated at the ADX until August, 2006, no Palestinian Muslims or Arab Muslims have been allowed the opportunity to stepdown within the institution. (Testimony of Plaintiff; Testimony of Omar 9

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Rezaq.) Plaintiff has not been provided with the same privileges as general population inmates. (Testimony of Plaintiff.) Plaintiff was on single recreation status for approximately one year after being placed in the F unit. (Testimony of Plaintiff.) During this time, he was not allowed to recreate with other inmates and he was denied access to the outdoor recreation yard. (Testimony of Plaintiff). (b) Plaintiff is denied the ability to step down despite the fact that he had complied with the requirements of the step-down program at ADX. (Testimony of Plaintiff; Testimony of Mark Collins; Exhibit 6). (c) Other inmates convicted of crimes similar to Mr. Ajaj, who are not Palestinian/Arab Muslim, have been allowed to step-down and transfer out of the A DX. (Testimony of Plaintiff; Testimony of Greg Hershberger; Testimony of Thomas Manning; Testimony of Oscar Lopez-Rivera). (2) categorizations based on suspect classifications, such as national origin, are entitled to strict scrutiny by the court and Defendants are required to demonstrate the classification is narrowly tailored to further compelling governmental interests. (a) Defendants implementation of the BOP regulation governing step-down at ADX has a disparate impact on Arab Muslims, a suspect classification. (Testimony of Plaintiff.) (b) Defendants have not demonstrated the treatment of Arab Muslims at the ADX is justified by a compelling governmental interest or that it is narrowly tailored. (Exhibit 2; Exhibit 6; Exhibits 101-104.) II. STATEMENT OF DEFENDANTS' DEFENSES AND ELEMENTS OF AFFIRMATIVE DEFENSES The United States denies that it or any of its employees committed any negligent or wrongful act or omission while acting within the scope of employment. The United States disputes that it breached any duty owed to Plaintiff or that it was the proximate cause of any damage alleged by Plaintiff. The United States further disputes that Plaintiff has suffered any damage as a result of his placement or continued incarceration at the ADX, or from any other

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acts or omissions of the United States. The United States asserts that it is entitled to all defenses provided under the FTCA and the Colorado statutes governing torts.1 Hood, Burrell, Chester, Duncan, Zuercher, Nalley, and Wiley ("the Federal Officers") deny that they violated Plaintiff's Eighth Amendment or Fifth Amendment rights, and deny that Plaintiff is entitled to any damages for Claims Two, Three, and Five in the Complaint. The Federal Officers also assert that they are entitled to the statutory protections of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e.2 A. Affirmative Defenses Relating to Claim One Against the United States

Defense to Claim One: Failure to Timely File Tort Claim in Federal Court.3 Plaintiff bears the burden of demonstrating that the Court has jurisdiction over all claims. Elements: Plaintiff cannot rely on Administrative Tort Claim TRT-NCR-2003-00329 to prove exhaustion of Claim One because:

The defenses provided by the FTCA and governing Colorado law include: (1) Plaintiff's damages are limited by C.R.S. §§ 13-21-102.5, 13-21-111.5, 13-21-111.6, 13-21-111.7, 13-21111; (2) if Plaintiff were to be awarded any future damages, to which the United States denies he is entitled, such damages must be reduced to present value under 28 U.S.C. § 2678; (3) Plaintiff's claim for attorney's fees for Claim One is governed by 28 U.S.C. § 2678, which caps such fees to 25% of any awarded amount; (4) to the extent the common or statutory law of Colorado, or the law of any jurisdiction where the alleged negligent events occurred, otherwise limits damages, liability or Plaintiff's cause of action, that law applies to this action to the extent it is not inconsistent with the FTCA; and (5) if Plaintiff is entitled to recover damages, the United States is entitled to a credit or set-off for any past or future benefits paid to or received by Plaintiff, including all monies or benefits that Plaintiff received from the United States. Attorney's fees for Claims Two, Three and Five are governed by 42 U.S.C. § 1997e(d). Moreover, 18 U.S.C. § 3626 Note, § 807 of the PLRA states that any damages awarded to a prisoner in connection with a civil action shall first be used to satisfy any pending restitution orders.
3 2

1

The Court has already issued a ruling on this defense in its May 11, 2006 Order. 11

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(1)

federal law bars any tort claim against the United States unless it is presented to the appropriate federal agency, in writing, within two years of the claim's accrual; and a. Plaintiff filed Claim TRT-NCR-2003-00329 on October 23, 2002. (Exhibit 26). Plaintiff received a final denial of Claim TRT-NCR-2003-00329 from the Bureau on April 16, 2003. (Exhibit 26).

b.

(2)

it is filed in federal district court within six months after notice of denial of the claim by that agency. a. Plaintiff did not raise such an FTCA claim in federal district court until eight months later when he filed his First Amended Complaint on December 17, 2003. (Docket No. 14, First Amended Complaint).

Defense to Claim One: Failure to Exhaust Administrative Remedies Prior to Initiating Lawsuit.4 Plaintiff bears the burden of demonstrating that the Court has jurisdiction over all claims. Elements: Plaintiff cannot rely on Administrative Tort Claim TRT-NCR-2004-727 to prove exhaustion of Claim One because: (1) a civil action raising a claim under the FTCA shall not be "instituted" until a plaintiff has fully exhausted his administrative remedies a. Plaintiff filed Claim TRT-NCR-2004-727 on November 11, 2003. (Exhibit 27). Plaintiff received a final denial of Claim TRT-NCR-2004-727 from the Bureau on December 9, 2003. (Exhibit 27). Plaintiff "instituted" this civil action on October 2, 2003. (Docket No. 3, Complaint).

b.

c.

4

The Court has already issued a ruling on this defense in its May 11, 2006 Order. 12

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Defense to Claim One: Barred by Discretionary Function Doctrine, 28 U.S.C. § 2680.5 Plaintiff bears the burden of demonstrating that the Court has jurisdiction over all claims. Elements: (1) The decision to incarcerate Plaintiff at the ADX involves "an element of judgment or choice." a. Claim One challenges Plaintiff's placement at the ADX. (Third Amended Complaint, at ¶¶ 37-50). The power to determine the location of imprisonment rests exclusively with the Bureau of Prisons. 18 U.S.C. § 3621(b).

b.

(2)

The decision to incarcerate Plaintiff at the ADX is of the kind that the discretionary function exception was designed to shield. a. An inmate's classification at a particular institution is a judgment "of the kind that the discretionary function exception was designed to shield" and thus, such decisions fall within the discretionary function exception to the FTCA. Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2003); Dykstra v. Bureau of Prisons, 140 F.3d 791, 796 (8th Cir. 1998); Cohen v. United States, 151 F.3d 1338, 1344 (11th Cir. 1998); Calderon v. United States, 123 F.3d 947, 949-50 (7th Cir. 1997).

Affirmative Defense to Claim One: Plaintiff's Damages Are the Proximate Result of a Preexisting Condition. Defendant United States has the burden of demonstrating by a preponderance of the evidence that Plaintiff's damages were caused by a pre-existing condition. Elements: (1) Plaintiff is not entitled to damages for any injuries sustained by his placement at the ADX since those alleged injuries are caused by a prior existing condition. a. Plaintiff had lung cancer prior and unrelated to his placement at the ADX in September 2002. (Testimony of Plaintiff; Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba, Dr. Marvin Schwartz). Plaintiff had experienced sinusitis, allergies, and shortness of breath prior and unrelated to his placement at the ADX in September 2002. (Bureau of Prisons Medical Records; Testimony

b.

5

The Court has issued a ruling on this defense in its May 11, 2006 Order. 13

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of Dr. Steven Nafziger, Dr. Lawrence Leyba, Dr. Marvin Schwartz). c. Plaintiff had experienced mental or emotional problems prior and unrelated to his placement at the ADX in September 2002. (Bureau Medical Records; Testimony of Plaintiff, Dr. Steven Nafziger, Dr. Lawrence Leyba, Dr. Jeffrey Metzner).

B.

Affirmative Defenses Relating to All Claims Against the Federal Officers

Affirmative Defense to Claims Two and Three: Failure to Exhaust Administrative Remedies. Plaintiff bears the burden of proof of demonstrating exhaustion of administrative remedies for all Bivens claims against all Federal Officers by a preponderance of the evidence. Elements: (1) Plaintiff has failed to exhaust his administrative remedies for Claims Two and 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. a. Grievance 290668, offered to prove exhaustion of Claim Two, did not address Plaintiff's factual allegations that the Federal Officers have been deliberately indifferent to Plaintiff's medical needs. (Exhibit 28, Grievance 290668). 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).

b.

(2)

Plaintiff has failed to exhaust his administrative remedies for Claim Two because inmates must exhaust administrative remedies at all levels of the Bureau's three-tiered grievance process. a. Grievance 288433 and Grievance 293372, both of which were offered to prove exhaustion of Claim Two, are inadequate because both fail to raise factual allegations related to Claim Two at all three levels of the Bureau's three-tiered prison grievance system. (Exhibit 28, Grievances 288433 and 293372).

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(3)

Claims Two and Three Should Be Dismissed Because the PLRA requires exhaustion of administrative remedies as a "precondition" to bringing litigation, and requires dismissal where a litigant has failed to complete such exhaustion prior to initiating a lawsuit. a. Plaintiff initiated this lawsuit on October 2, 2003. (Docket No. 3, Complaint). Plaintiff failed to properly exhaust Claims Two and Three, prior to initiating this lawsuit on October 2, 2003. See Paragraphs (1) and (2), supra.

b.

Affirmative Defense to Claim Two: Qualified Immunity. Plaintiff bears the burden of proof of overcoming the defense of qualified immunity by a preponderance of the evidence once the defense has been invoked by the Federal Officers. Elements: (1) Plaintiff must demonstrate that the Federal Officers' actions violated the Eighth Amendment; and a. Plaintiff cannot meet the objective prong of the deliberate indifference claim because he cannot prove that he had a "serious medical need" to be housed in a totally smoke-free environment or at a low altitude. i. The ADX eliminated smoking from all areas in September 2004. (Institution Supplement FLM 1640.04(a), Smoking/No Smoking (September 29, 2004); Testimony of Hood, Chester, Zuercher, Plaintiff). Between September 2002 and September 2004, Plaintiff was housed in a single, non-smoking cell at the ADX. (Testimony of Burrell, Chester, and Duncan). Plaintiff cannot establish what levels of environmental tobacco smoke ("ETS") he was exposed to, if any, in his single non-smoking cell between September 2002 and September 2004. (Testimony of Plaintiff). Plaintiff has no expert witness who can testify as to what levels of ETS he was exposed to, if any, between September 2002 and September 2004. (Testimony of Dr. Dennis Clifford and Dr. Stuart Grassian).

ii.

iii.

iv.

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v.

A review of Plaintiff's medical records for the time period from September 2002 through September 2004 when he was allegedly exposed to ETS reveals that he was in no acute distress and that his blood oxygen saturation levels were well within the normal range. (Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba). No treating physician from 2002 until the present ordered that Plaintiff be housed where he would have no ETS exposure (i.e., be placed in a totally smoke-free environment). (Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba). From September 2002 until September 2004 while smoking was permitted at the ADX, no 770 medical transfer request was ever made on behalf of Plaintiff by any treating physician based upon a medical need for Plaintiff to be housed in a totally smoke-free environment. (Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba). Plaintiff's medical records from 2002 until the present do not reflect any medical complications relating to exposure to altitude. (Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba, Dr. Marvin Schwartz). Dr. Craig Shapiro, an independent medical consultant, determined that Plaintiff had no medical problems due to the altitude at the ADX. (Bureau of Prisons Medical Records, Testimony of Dr. Craig Shapiro, Dr. Steven Nafizer, Dr. Marvin Schwartz). Plaintiff has no expert who will testify, contrary to the opinions of Dr. Shapiro and the ADX medical staff, that the altitude at ADX caused Plaintiff any medical harm or risk of future harm. (Testimony of Dr. Dennis Clifford and Dr. Stuart Grassian). Dr. Marvin Schwartz, Defendants' expert pulmonologist, has reviewed Plaintiff's medical records from the Bureau of Prisons and determined that Plaintiff had no serious 16

vi.

vii.

viii.

ix.

x.

xi.

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medical need necessitating his transfer to an institution at a lower altitude and has suffered no harm from his continued housing at the ADX. (Testimony of Dr. Marvin Schwartz; Bureau of Prison Medical Records). xii. From September 2002 until the present time, no requests for a 770 medical transfer have ever been sought for Plaintiff by any treating physician based upon a medical need for Plaintiff to be housed at a low altitude. (Bureau of Prisons Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba).

b.

Plaintiff cannot establish the subjective prong for a deliberate indifference claim. i. Plaintiff cannot prove that Hood, Burrell, and Duncan had knowledge of a "serious medical need" that Plaintiff be housed in a totally smoke-free environment or at a lower altitude because no treating physician issued a 770 medical transfer request for Plaintiff to be transferred to such an environment between September 2002 and September 2004. (Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Lawrence Leyba). Dr. Shapiro found that Plaintiff had no medical problems due to the altitude at the ADX. (Bureau of Prison Medical Records; Testimony of Dr. Steven Nafziger, Dr. Craig Shapiro, Dr. Marvin Schwartz). Hood, Burrell, and Duncan relied on the medical opinions and diagnoses of Plaintiff's treating physicians as to whether or not there was a medical necessity requiring Plaintiff's transfer from the ADX to a different institution. (Testimony of Hood, Burrell, Duncan)

ii.

iii.

(2)

that the right allegedly violated was clearly established at the time of the conduct at issue. a. The Federal Officers believe that whether Plaintiff can meet this prong of the qualified immunity defense is purely a question of law (rather than a dispute of fact). This question of law has already been raised by the Federal Officers in their Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment. 17

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Affirmative Defense to Claim Three's Conditions of Confinement Claim: Qualified Immunity. Plaintiff bears the burden of proof of overcoming the defense of qualified immunity by a preponderance of the evidence once the defense has been invoked by the Federal Officers. Elements: (1) Plaintiff must demonstrate that the Federal Officers' actions violated the Eighth Amendment; and a. As a matter of law, Plaintiff's allegations of being held in "extreme isolation" and under "lock-down for 23 or 24 hours a day," having restrictions placed on his personal property and telephone privileges, and having limited access to outdoor recreation do not constitute deliberate indifference to humane conditions of confinement. This question of law has already been raised by the Federal Officers in their Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment. Plaintiff frequently refuses to go to recreation, and thus, he cannot claim that he is being denied recreation when he chooses not to avail himself of the opportunity to recreate. (Testimony of Tomas Gomez; Exhibit 25). Plaintiff has no evidence that the Federal Officers were "aware" of Plaintiff's conditions of confinement.

b.

c.

(2)

that the right allegedly violated was clearly established at the time of the conduct at issue. a. The parties stipulate that the right to humane conditions of confinement under the Eighth Amendment was clearly established at the time of the alleged wrongdoing.

Affirmative Defense to Claim Three's Due Process Claim: Qualified Immunity. Plaintiff bears the burden of proof of overcoming the defense of qualified immunity by a preponderance of the evidence once the defense has been invoked by the Federal Officers. Elements: (1) Plaintiff must demonstrate that the Federal Officers' actions violated the Fifth Amendment Due Process Clause; and a. Plaintiff was afforded all of the process that he was due prior to his transfer to the ADX. i. Plaintiff received his initial classification on September 13, 2002, and thus, was afforded an opportunity to raise any 18

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concerns he had about his transfer to the ADX. (Testimony of Tomas Gomez). ii. Plaintiff was afforded the opportunity to challenge his transfer to the ADX through the Administrative Remedy program and did, in fact, challenge his transfer. (Testimony of Plaintiff, Tomas Gomez, Hood, Burrell, Chester, Duncan). Assuming that Plaintiff was denied the opportunity to review and sign the transferring progress report, Plaintiff has no evidence to show that Hood was involved in this conduct. (Testimony of Hood).

iii.

b.

Plaintiff has been afforded all of the process that he was due concerning his continued confinement at the ADX. 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).

ii.

iii.

iv.

19

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v.

Plaintiff's continued housing at the ADX and 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 continued housing at the ADX and advancement through the Step-Down Program through the Bureau's Administrative Remedy Program. (Testimony of Tomas Gomez, Mark Collins, Tena Sudlow, Rich Madison).

vi.

c.

Plaintiff has no liberty interest in remaining out of the ADX and at another institution. i. This question of law has already been raised by the Federal Officers in their Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment. An inmate's incarceration at the ADX does not impact his sentence duration. (Testimony of Tomas Gomez). Plaintiff is not being indefinitely detained at the ADX. (Testimony of Hood, Burrell, Chester, Duncan, Tomas Gomez).

ii.

iii.

(2)

that the right allegedly violated was clearly established at the time of the conduct at issue. a. The Federal Officers believe that whether Plaintiff can meet this prong of the qualified immunity defense is purely a question of law (rather than a dispute of fact). This question of law has already been raised by the Federal Officers in their Motion for Summary Judgment and Reply in Support of Motion for Summary Judgment.

20

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Affirmative Defense to Claim Five: Qualified Immunity. Plaintiff bears the burden of proof of overcoming the defense of qualified immunity by a preponderance of the evidence once the defense has been invoked by the Federal Officers. Elements: (1) Plaintiff must demonstrate that the Federal Officers' actions violated a constitutional right; and a. Plaintiff cannot show that he was treated differently than other similarly situated inmates, and thus, cannot establish a violation of his equal protection rights. i. On October 3, 2002, Plaintiff was placed in F Unit at the ADX, which is a general population unit. (Testimony of Tomas Gomez; Stipulation #9). On July 27, 2005, Plaintiff was placed in the D Unit at the ADX. (Testimony of Tomas Gomez; Stipulation #10). While Plaintiff has been housed in D Unit, his status as a general population inmate has not changed and he is provided with all of the same privileges and restrictions as general population inmates. (Testimony of Tomas Gomez, Mark Collins, Tena Sudlow). Institution Supplement FLM 5321.06 provides that "[t]he most critical factor in determining an inmate's readiness to progress to and through the step-down program 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 lessrestricted unit without posing a threat to the security or orderly running of the institution. Due to the very serious nature of the original placement factor, which is frequently complicated by the inmate's criminal history or involvement with criminal organizations, it may be appropriate for some prisoners to be deferred from the stepdown program for longer periods of time." (Institution Supplement FLM 5321.06D(1), at 4, Institution Supplement FLM 5321.06E(1), at 4, and Institution Supplement FLM 5321.06, at 4). Other criteria that can be considered by the Unit Team when determining whether an inmate in general population 21

ii.

iii.

iv.

v.

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is eligible to be considered for step-down to an intermediate housing unit are: (1) whether the inmate has a minimum of 12 months of clear conduct while housed in a general population unit at the ADX; (2) whether the inmate actively participates in and completes all programs recommended by the inmate's unit team; (3) whether the inmate has positive overall institution adjustment, personal hygiene, and cell sanitation; and (4) whether the inmate has appropriate interaction with staff. (Institution Supplement FLM 5321.06D(1), at 2-3, Institution Supplement FLM 5321.06E(1), at 2-3, and Institution Supplement FLM 5321.06, at 2-3). vi. Since his arrival at the ADX, Plaintiff was reviewed for consideration for step-down placement into the K Unit on April 2004, October 2004, and April 2005. (Testimony of Tomas Gomez; Exhibits 8 and 9). On each occasion, Plaintiff has been denied step-down on the grounds that he has not mitigated his reasons for being placed at the ADX in the first instance, and thus, does not meet the criteria for step-down. (Testimony of Tomas Gomez; Exhibits 8 and 9). Those inmates who have been stepped down from a general population unit at the ADX since September 2002 through the relevant time period have all met the criteria for receiving step-down, including the criteria of mitigating their reasons for being placed at the ADX in the first instance. (Testimony of Hood). Plaintiff has no evidence and cannot meet his burden of proof that the reason that he has been denied placement in the K Unit is due to his ethnicity (Palestinian). Plaintiff has no evidence and cannot meet his burden of proof that the reason that he has been denied placement in the K Unit is due to his religion (Muslim). Approximately 60 Muslim inmates have been stepped down from the general population units at the ADX since September 2002. (Testimony of Tomas Gomez).

vii.

viii.

ix.

x.

x.

22

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(2)

that the right allegedly violated was clearly established at the time of the conduct at issue. a. The parties stipulate that the right to equal protection under the Fifth Amendment was clearly established at the time of the alleged wrongdoing.

Affirmative Defense to Claim Three's Conditions of Confinement Claim: Failure to State a Claim Because Allegations of Wrongful Conduct Are Premised on Theory of Respondeat Superior Rather Than Personal Participation. Plaintiff bears the burden of proof of establishing that each of the Federal Officers personally participated in creating the conditions of confinement by a preponderance of the evidence. Elements: (1) Plaintiff cannot show that the Federal Officers personally participated in creating the conditions of confinement. a. Plaintiff has no evidence that Hood, Burrell, Chester and Duncan personally participated in creating the conditions of confinement that Plaintiff complains of in Claim Three. Hood, Burrell, Chester and Duncan cannot be held liable simply because of their supervisory responsibilities at the ADX. Gates v. Unified School Dist. No. 499 of Leavenworth County, 996 F.2d 1035, 1042 (10th Cir. 1993); Rizzo v. Goode, 423 U.S. 362, 372 (1976); Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir.1996).

b.

Affirmative Defense to Claim Three's Due Process Claim Concerning Transfer: Failure to State a Claim Because Allegations of Wrongful Conduct Are Premised on Theory of Respondeat Superior Rather Than Personal Participation. Plaintiff bears the burden of proof of establishing that each of the Federal Officers personally participated in creating the conditions of confinement by a preponderance of the evidence. Elements: (1) Plaintiff cannot show that the Federal Officers personally participated in the decision to transfer Plaintiff to the ADX. a. Plaintiff was transferred to the ADX on September 4, 2002. (Stipulation #7). Hood, Burrell, Chester, and Duncan had no involvement in the decision to transfer Plaintiff to the ADX in September 2002. (Testimony of Hood, Burrell, Chester, Duncan, and Gregory Hershberger)

b.

23

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c.

The decision to transfer Plaintiff was made by the Regional Director for the North Central Regional Office, Bureau of Prisons. (Testimony of Gregory Hershberger). Hood, Burrell, and Duncan lacked any authority to refuse or block the decision to transfer Plaintiff to the ADX. (Testimony of Hood, Burrell, Duncan, and Gregory Hershberger). Chester was not employed at the ADX in September 2002, when Plaintiff was transferred to the ADX, and notwithstanding this point, lacked any authority to refuse or block the decision to transfer inmates to the ADX. (Testimony of Chester).

d.

e.

Affirmative Defense to Claim Five: Failure to State a Claim Because Allegations of Wrongful Conduct Are Premised on Theory of Respondeat Superior Rather Than Personal Participation. Plaintiff bears the burden of proof of establishing that each of the Federal Officers personally participated in creating the conditions of confinement by a preponderance of the evidence. Elements: (1) Plaintiff cannot show that Burrell, Chester, Duncan and Zuercher personally participated in the decision to deny Plaintiff step-down. a. Plaintiff was denied the opportunity to step-down to K Unit on April 12, 2004, October 22, 2004, and April 12, 2005. (Testimony of Tomas Gomez; Exhibits 8 and 9). Ajaj was not eligible for step-down placement from October 2002 until April 2004. Even though Ajaj was in general population and had clear conduct during that time period, he did not participate in any programs until October 9, 2003, and thus, was not eligible for step-down. Ajaj was not eligible for step-down placement in October 2005 because he received an incident report in September 2005, and thus, did not meet the clear conduct requirements. (Testimony of Tomas Gomez). The decision-maker for determining which inmates at the ADX are placed in the step-down units is the Warden of the ADX. (Testimony of Plaintiff, Hood). Associate Wardens at the ADX serve on the Screening Committee for reviewing whether inmates should be stepped down, but Associate Wardens do not have the authority to approve or deny step-down for any inmate. (Testimony of Hood, Burrell, Chester, Duncan, Zuercher). 24

b.

c.

d.

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e.

Given that Plaintiff was not eligible for step-down or even considered for step-down until April 12, 2004 after Burrell and Duncan had left the ADX, neither Burrell nor Duncan personally participated in any of Plaintiff's reviews or recommendations for participation in step-down. (Testimony of Burrell and Duncan).

Affirmative Defense to Claims Three and Five: Plaintiff Cannot Recover Compensatory Damages for Mental or Emotional Distress Because He Has Not Alleged Physical Injury. Plaintiff bears the burden of proof of demonstrating physical injury by a preponderance of the evidence. Elements: (1) Plaintiff is not entitled to receive compensatory damages for Claims Three and Five. a. An inmate's claim for compensatory damages for a constitutional tort claim is barred by the Prison Litigation Reform Act ("PLRA") if the plaintiff cannot show any physical injury. 42 U.S.C. § 1997e(e); Searles v. Van Bebber, 251 F.3d 869, 877 (10th Cir. 2001). Plaintiff does not allege that he suffered any physical injury resulting from his conditions of confinement (Claim Three), his alleged denial of due process in his transfer to and continued detention at the ADX (Claim Three), or from his denial of participation in the step-down program (Claim Five). (Third Amended Complaint; Testimony of Plaintiff).

b.

Affirmative Defense to Claims Two, Three, and Five: Plaintiff Cannot Seek Injunctive Relief in Form of Transfer from the ADX. Plaintiff bears the burden of proof of demonstrating that he is entitled to injunctive relief if he prevails on his Bivens claims. Elements: (1) Plaintiff is not entitled to injunctive relief in the form of a transfer to another prison. a. The Bureau of Prisons may direct confinement in any available facility and may transfer a prisoner from one facility to another at any time. 18 U.S.C. § 3621(b). State and federal prisoners generally enjoy no constitutional right to placement in any particular penal institution. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 225-28 (1976); Brown-Bey v. United States, 720 F.2d 25

b.

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467, 470 (7th Cir. 1983) (Olim and Meachum equally applicable in federal context). c. A prisoner has "no federal constitutional right to serve his sentence in any particular place of confinement and has no federal constitutional basis upon which to object to a simple administrative transfer from one facility to another, even if the transferee facility is located in another state." Reed v. Hargett, 99-6371, 2000 WL 990944, *1 (10th Cir. July 19, 2000). The Court may not direct in which institution Plaintiff shall be placed. United States v. Serafini, 233 F.3d 758, 777-79 (3d Cir. 2000); United States v. McCrary, 220 F.3d 868, 871 (8th Cir. 2000); United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995); United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). The power to determine the location of imprisonment rests exclusively with the Bureau. United States v. Serafini, 233 F.3d 758, 777-79 (3d Cir. 2000). The decision of the Bureau concerning where to house an inmate is not a reviewable decision. 18 U.S.C. § 3625. 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 ­ with the exception of the due process claim in Claim Three concerning Plaintiff's transfer to and continued confinement at the ADX ­ are temporally limited from September 4, 2002 until the present. This does not foreclose the presentation of evidence, including testimony and documents dated prior to September 4, 2002.

d.

e.

f.

26

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4.

The parties agree that Plaintiff's claims are temporally limited from September 11, 2001 to the present regarding the circumstances of Mr. Ajaj's transfer to and incarceration at the ADX.

5.

The parties agree that Defendants Burrell and Duncan did not have personal involvement with regards to Plaintiff's Equal Protection Claim 5, and thus, should be dismissed as defendants with respect to Claim Five.

6.

The parties agree that Defendants Burrell, Chester and Duncan did not have personal involvement in Plaintiff's initial transfer to the ADX.

7.

Plaintiff was transferred to the ADX on September 4, 2002, and has been housed at the ADX since that time.

8.

Plaintiff was housed in the H Unit at the ADX from September 4, 2002 until October 3, 2002.

9.

Plaintiff was housed in the F Unit at the ADX from October 3, 2002 until July 27, 2005.

10.

Plaintiff was housed in the D Unit at the ADX from July 27, 2005 until September 28, 2005.

11.

Plaintiff was housed in the Z Unit, which is the Special Housing Unit, at the ADX from September 28, 2005 until December 6, 2005.

12. 13. 14. 15.

Plaintiff has been housed in the D Unit from December 6, 2005 until the present. Plaintiff was housed at USP Florence from July 1997 through January 1998. Plaintiff was housed at UMC Springfield from January 1998 through March 1998. Plaintiff was housed at USP Beaumont from March 1998 through January 1999. 27

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16.

Plaintiff was housed at MCC New York from January 1999 through February 1999.

17. 18. 19.

Plaintiff was housed at USP Beaumont from March 1999 through January 2001. 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.

20. 21. 22.

Plaintiff was diagnosed with cancer and had his left lung removed in June 1997. 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.

23.

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

24.

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

25.

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

26. 27.

Plaintiff filed Claim TRT-NCR-2004-727 on November 11, 2003. Plaintiff received a final denial of Claim TRT-NCR-2004-727 from the Bureau on December 9, 2003.

28.

Plaintiff was denied step-down to the Intermediate K Unit on April 12, 2004, October 22, 2004, and April 12, 2005. 28

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29.

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.

30.

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

31. 32. 33.

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. On June 4, 2003, Plaintiff left the ADX and was sent to Parkview Hospital for outpatient pulmonary testing. This testing lasted approximately 2 hours.

34.

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. 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 29

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i. j. k. l. m. n. o. p.

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

On July 28, 2006, the Federal Officers filed a motion for summary judgment asserting the defense of qualified immunity on all claims raised against them in the Third Amended Complaint. Plaintiff filed a Response to the Motion for Summary Judgment on August 28, 2006. The Federal Officers filed a Reply on September 13, 2006. 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 Robert A. Hood Community Education Centers 2925 East Las Vegas Street Colorado Springs, Colorado 80906

30

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Mr. Hood is a defendant in this lawsuit and will be called or cross-examined regarding his knowledge of the claims 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 is a defendant in this lawsuit and will be called or cross-examined regarding his knowledge of the claims raised in the Third Amended Complaint and to any matter raised in his deposition. 3. David Duncan Federal Bureau of Prisons Western Regional Office 7950 Dublin Blvd. 3rd Floor Dublin, CA 94568

Mr. Duncan is a defendant in this lawsuit and will be called or cross-examined regarding his knowledge of the claims raised in the Third Amended Complaint and to any matter raised in his deposition. 4. Claude Chester Federal Bureau of Prisons North Central Regional Office 400 State Avenue Tower II, Suite 800 Kansas City, KS 66101

Mr. Chester is a defendant in this lawsuit and will be called or cross-examined regarding his knowledge of the claims raised in the Third Amended Complaint and to any matter raised in his deposition. 5. J.C. Zuercher Federal Correctional Institution P.O. 6500 Florence, Colorado 81226

Mr. Zuercher is a defendant in this lawsuit and will be called or cross-examined regarding his knowledge of the claims raised in the Third Amended Complaint and to any matter raised in his deposition. 31

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6.

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. 7. 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. 8. Dr. Dennis Clifford.

Dr. Clifford will testify consistent with his expert report, based on his expertise and review of the evidence in this matter 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. 9. 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 as to his knowledge of the issues raised in Plaintiff's Third Amended Complaint. 10. Vindel Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226 32

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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, their interactions with others, Mr. Ajaj, his knowledge and conversations with Mr. Ajaj and other information pertaining to Plaintiff's claims. 11. Mr. Lynn W. Grubb Unit Counselor United States Penitentiary F.C.I. Edgefield 501 Gary Hill Road Edgefield, SC 29284

Mr. Grubb was Plaintiff's unit Counselor at the United States Penitentiary, F.C.I. Edgefield and may be called to testify regarding his knowledge of the BOP, his interactions with Mr. Ajaj at F.C.I. Edgefield and other information related to Plaintiff's claims. 12. Oscar Lopez-Rivera No Address Known

Mr. Rivera is a prisoner in the Bureau of prisons and was previously housed in ADX before being stepped down and transferred from ADX. Mr. Rivera may be called to testify regarding the step-down process at the ADX and other information related to Plaintiff's claims. 13. Raymond Luc Levaseur No Address Known

Mr. Levaseur is a prisoner in the Bureau of prisons and was previously housed in ADX before being stepped down and transferred from ADX. Mr. Levaseur may be called to testify regarding the step-down process at the ADX and other information related to Plaintiff's claims. 14. Thomas Manning No Address Known

Mr. Manning is a prisoner in the Bureau of prisons and was previously housed in ADX before being stepped down and transferred from ADX. Mr. Manning may be called to testify regarding the step-down down process at the ADX and other information related to Plaintiff's claims. 15. Clement Hampton-El No Address Known

Mr. Hampton is a prisoner at the ADX. Mr. Hampton may be called to testify regarding the conditions at ADX and information related to Plaintiff's claims. 33

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16.

Rod Bauer, Captain, Public Health Service United States Penitentiary, High Security P.O. Box 7500 Florence, Colorado 81226

Captain Bauer is the Health Services Administrator at the Federal Correctional Complex, Florence, Colorado, and may testify regarding his knowledge of the BOP, medical services at the BOP, medical transfers from the ADX, Mr. Ajaj's medical history, needs and treatment, and his knowledge regarding Plaintiff's claims. 17. Rich Madison United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Madison is a Counselor at the ADX, an