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, Defendants.

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, and Jerome Zuercher 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, and Jerome Zuercher ("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. Elements of Claims A. Claim One: Federal Tort Claims Act Claim Against the United States for Negligence by Failing to House Plaintiff in a Low Altitude, Smoke-free Facility Appropriate to His Medical Needs. 1. Elements of the Claim: a. b. c. d. 2. Duty of Care Breach Causation Damages

Dispute Between the Parties: a. Both Plaintiff and Defendants stipulate that the United States owes a duty of care to inmates under 18 U.S.C. § 4042. The parties dispute that Plaintiff can establish the elements of breach, causation, and damages.

b.

B.

Claim Two: Eighth Amendment Claim Against Hood, Burrell, and Duncan for Deliberate Indifference to Plaintiff's Medical Needs 1. Elements of Claim: In order to state a cognizable claim under the Eighth Amendment, a prisoner must state deliberate indifference to serious medical needs. Estelle v. Gamble, 429 US 97, 104 (1976).

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a.

Objective component: Plaintiff must show that the medical need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Subjective component: "The subjective component is satisfied if the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [he] must also draw the inference." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)

b.

2.

Dispute Between the Parties: The parties dispute that the Plaintiff can establish the objective and subjective elements of a deliberate indifference claim.

C.

Claim Three: Eighth Amendment Claim Against Hood, Burrell, Chester, and Duncan for Deliberate Indifference to Plaintiff's Conditions of Confinement 1. Elements of Claim: a. Objective component: The inmate suffered substantial harm because of the deprivation of humane conditions of confinement, and Subjective component: that 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. Farmer v. Brennan, 511 U.S. 825, 837 (1994).

b.

2.

Dispute between the Parties: The parties dispute that the Plaintiff can establish the objective and subjective elements of a deliberate indifference claim.

D.

Claim Three: Fifth Amendment Due Process Claim Against Hood, Burrell, Chester, and Duncan for Transfer to and Continued Confinement at the ADX 1. Elements of Claim: a. Plaintiff must show a deprivation of a life, liberty or property interest. 3

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b.

To show a deprivation of a liberty interest, Plaintiff must show imposition of atypical and significant hardship in relation to the ordinary incidents of prison life. Wilkinson v. Austin, 125 S. Ct. 2384, 2393-2394. "States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner is to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 US 472, 483-84.

2.

Dispute Between the Parties: The parties dispute that Plaintiff has a cognizable liberty interest or that Plaintiff can establish an imposition of atypical and significant hardship in relation to the ordinary incidents of prison life due to his transfer to and continued confinement at the ADX.

E.

Claim Five: Fifth Amendment Equal Protection Claim Against Hood, Chester, and Zuercher Concerning Failure to Place Plaintiff in Step-Down Program1 1. Elements of Claim: a. The equal protection clause is triggered when the government treats someone differently than another who is similarly situated. Buckley Constr. Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 859 (10th Cir. 1991) (citing City of Cleburne v. Cleburne Living Ctr., 473 US 432, 439). When persons are categorized based on suspect classifications, such as national origin, courts apply strict scrutiny. Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2002) (citing Okla. Educ. Ass'n v. Alcoholic Beverage Laws Comm'n, 889 F.2d 929, 932 (10th Cir. 1989)).

b.

2.

Dispute Between the Parties: The parties dispute that Plaintiff can prove that he was treated differently than similarly situated individuals based upon his national origin (Palestinian) or religion (Muslim).

This claim was originally raised against all the Federal Officers, including Burrell and Duncan. Pursuant to Stipulation No. 5 of this Final Pretrial Order, Plaintiff agrees that Burrell and Duncan should be dismissed from Claim Five. See Section 4, supra. 4

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II.

Statement of Plaintiff's Claims On September 11, 2001, the Bureau of Prisons placed Mr. Ajaj into administrative

segregation. Mr. Ajaj remained in administrative segregation at FCI Edgeville until just before he was transferred to the ADX on September 4, 2002. Upon arrival to the ADX, Mr. Ajaj was again placed in administrative isolation in the H unit. Prior to his transfer to the ADX, Defendants never provided Mr. Ajaj with a hearing, notice, or any opportunity to challenge his placement at the institution. Additionally, prior to his transfer to the ADX on September 4, 2002, Defendants never provided Plaintiff with the opportunity to review or sign his transferring progress report to ensure it contained correct information as required by the Bureau of Prison's policies. Since his incarceration at the ADX, Mr. Ajaj has not been provided with meaningful review of his placement at the ADX. Defendants have never provided any legitimate justification for Mr. Ajaj's continued placement in 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. Defendants have never provided a sufficient justification for Mr. Ajaj's continued incarceration at the ADX and refusal to allow him to step down within the institution. Plaintiff's conditions of confinement at the ADX are much more extreme than his conditions of confinement at other institutions where he was housed prior to September 11, 2001. These conditions include indefinite and extreme isolation, restrictions on communication and 5

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interaction with other inmates and extremely limited access to outdoor recreation. 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. Defendants also violated the Eighth Amendment and knowingly breached their duty of care to Mr. Ajaj by failing to follow medical instructions and housing him in an environment that was not 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 exposure to environmental tobacco smoke was especially harmful given the fact that he had 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. Mr. Ajaj seeks injunctive relief as a result of his unconstitutional transfer and continued confinement at the ADX and seeks to be moved to the intermediate step down unit and/or transferred from the ADX to another institution's general population. Defendants' conduct has caused Plaintiff to suffer emotional and physical harm. In addition to injunctive relief, Ajaj claims compensatory damages based on his chronic fatigue, his inability to participate in activities he previously enjoyed; lost enjoyment of his life; his increased susceptibility to a malignant transformation and/or loss of lung function; his inability to walk for periods in excess of fifteen minutes without significant shortness of breath and the exacerbation 6

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of his allergies. Plaintiff also seeks compensatory damages for the mental suffering caused by Defendants conduct. III. Statement of Defendants' Claims and Defenses The United States disputes that it breached any duty owed to Plaintiff Ahmed Ajaj ("Plaintiff"), or that it or any of its employees or agents were the proximate cause of any damage alleged by Plaintiff, as a result of Plaintiff's placement at and continued incarceration at the ADX. The United States further disputes that Plaintiff has suffered any damage as a result of his placement at and continued incarceration at the ADX, or any other acts or omissions by the United States. In addition, the United States asserts that it is entitled to all defenses provided under the FTCA, and the Colorado statutes governing torts. Robert Hood, James Burrell, Claude Chester, David Duncan and J.C. Zuercher ("the Federal Officers") deny that they violated any constitutional right of Plaintiff. Specifically they deny that they violated Plaintiff's Eighth Amendment rights and his Fifth Amendment rights. In addition, the Federal Officers assert that they are entitled to qualified immunity for all acts allegedly forming the basis for the constitutional tort claims and that the claims asserted in the Third Amended Complaint fail to state claims upon which relief can be granted. The Federal Officers further assert that Plaintiff has failed to exhaust his administrative remedies for some of the constitutional claims raised in the Third Amended Complaint, and thus, that the Third Amended Complaint is subject to dismissal in its entirety. Finally, the Federal Officers assert that for some of the claims raised in the Third Amended Complaint, Plaintiff cannot prove personal participation by the Federal Officers, and thus, that these claims must be dismissed against those Federal Officers. 7

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Additionally, Defendants assert the following affirmative defenses: 1. The Third Amended Complaint fails to state a claim upon which relief can be

granted to Plaintiff against Defendants; 2. The United States of America and its agents, servants and employees deny

committing any negligent or wrongful act or omission while acting within the scope of employment, and deny proximately causing and/or contributing to the damages alleged in the Third Amended Complaint; 3. This Court lacks subject matter jurisdiction over Plaintiff's FTCA claim against

the United States; 4. Plaintiff failed to properly exhaust his administrative remedies before filing this

case in federal court; 5. The individual Federal Officers are entitled to qualified immunity on all claims

raised against them; 6. To the extent Plaintiff premises any of his Bivens claims upon vicarious

liability/respondeat superior, Plaintiff fails to state a claim; 7. Any and all actions Defendants may have taken concerning the matters underlying

this action were done in good faith, within the scope of their employment, and in accordance with federal law and regulations; 8. Defendants' actions were justified under federal law or otherwise proper under

Federal Bureau of Prisons policies and regulations; 9. doctrine; 8 Plaintiff's claims are barred in whole or in part by the discretionary function

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10. injury; 11.

Plaintiff's claims for compensatory damages are barred in the absence of physical

The individual Federal Officers are entitled to the statutory protections of the

Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e; 12. Plaintiff voluntarily assumed a known unreasonable risk and is barred from

recovery herein; 13. Plaintiff's damages, if any, were a result of Plaintiff's or a third party's negligence

to such a degree as to bar (or limit) his recovery. See C.R.S. § 13-21-111; 14. Plaintiff's damages are limited pursuant to the provisions of C.R.S. §§ 13-21-

102.5, 13-21-111.5, 13-21-111.6, 13-21-111.7, and 13-21-111; 15. If the Plaintiff were to be awarded any future damages, to which Defendant

United States of America denies he is entitled, such damages must be reduced to present value. See 28 U.S.C. § 2678; 16. Plaintiff's claims may be barred in whole or part by his failure to mitigate his

claimed damages, if any; 17. 18. 19. Plaintiff's damages are the proximate result of a pre-existing condition; Plaintiff's damages are barred in whole or in part by the actions of Plaintiff; If Plaintiff is entitled to recover damages in this action, Defendant United States

of America is entitled to a credit or set-off for any past or future benefits paid to or on behalf of or received by Plaintiff to the extent allowed under federal and state common and statutory law, including all monies or benefits that Plaintiff received from the United States; 20. To the extent the common or statutory law of Colorado, or any jurisdiction 9

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wherein the alleged negligent events occurred, otherwise limits damages or limits Defendants' liability or Plaintiff's cause of action, that law applies to this action against the United States to the extent it is not inconsistent with the Federal Tort Claims Act.; 21. 22. Plaintiff's claims are governed in whole or in part by the Federal Tort Claims Act; Plaintiff's claim for attorney's fees for the Federal Tort Claims Act claim, if any, is

governed by the provisions of the Federal Tort Claims Act, capping such fees to 25% of any awarded amount. 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. 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. 10

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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. 16.

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. 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, 11

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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. 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. 12

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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. i. j. k. l. m. n. 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 13

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o. p.

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. The deadline for Plaintiff to file a response to the motion for summary judgment is August 28, 2006. The Federal Officers intend to file a reply brief in the time allowed under the Federal Rules and local rules. 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

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. 14

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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. 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.

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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

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.

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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. 16. Rod Bauer, Captain, Public Health Service United States Penitentiary, High Security P.O. Box 7500 Florence, Colorado 81226 17

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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, and may testify regarding his knowledge of the BOP, Mr. Ajaj, his interactions with Mr. Ajaj and conversations regarding Mr. Ajaj, and his knowledge regarding Plaintiff's claims. 18. 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 conversations with Mr. Ajaj and others, her knowledge of Mr. Ajaj, and her knowledge regarding Plaintiff's claims. 19. Greg Hershberger Retired from Bureau of Prisons No Address Known

Mr. Hershberger was the Regional Director, North Central Region, and will 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. 20. Dan Dove No Address Known

Mr. Dove was the warden at F.C.I. Edgeville and may be called to testify regarding his knowledge of Plaintiff's transfer to the ADX and other issues pertaining to Plaintiff's claims.

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21.

Dr. Lawrence Leyba United States Penitentiary, High Security P.O. Box 8500 Florence, Colorado 81226

Dr. Lebya is a treating physician and may be called to testify regarding his care and treatment of Mr. Ajaj, his conversations with Mr. Ajaj and others regarding Mr. Ajaj's health concerns and needs, Mr. Ajaj's medical history, any matter raised in Plaintiff's medical records, and other matters related to Plaintiff's claims. 22. Dr. S. Nafzinger United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Nafzinger is a treating physician and may be called to testify regarding his care and treatment of Mr. Ajaj, his conversations with Mr. Ajaj and others regarding Mr. Ajaj's health concerns and needs, Mr. Ajaj's medical history, any matter raised in Plaintiff's medical records, and other matters related to Plaintiff's claims. 23. Omar Rezaq United States Penitentiary, Administrative Maximum 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. 24. Saleh Muhamed United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Muhamed 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. 25. Ibrahim El Jabrowny United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

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Mr. Jabrowny 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. 26. 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 may be called or cross-examined regarding his knowledge of the BOP, Mr. Ajaj, the ADX and other information pertaining to Plaintiff's claims. 27. Terry Finnegan U.S.P. Florence 5880 Highway 67, Florence, Colorado 81226.

Finnegan is a Health Service Administrator at U.S.P. Florence and may be called to testify regarding Plaintiff's medical condition and history and other information related to Plaintiff's claims. 28. 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. 29. Alan Oliver United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Oliver is an SIS officer at the ADX and may testify regarding his knowledge of the BOP, the ADX, Mr. Ajaj and other matters raised in the Third Amended Complaint. 30. Phillip Green No Address Known

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Mr. Green was an inmate incarcerated at the ADX and was allowed to step-down. Mr. Green may be called to testify regarding the ADX, the step-down process at the ADX and other issues related to Mr. Ajaj's claims. 31. Mike Richer United States Penitentiary F.C.I. Edgefield 501 Gary Hill Road Edgefield, SC 29284

Mr. Richer was associate warden 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. 32. Captain Zello United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Zello is a pharmacist at the ADX and may testify regarding Mr. Ajaj's prescriptions and his knowledge of Mr. Ajaj's health condition or other issues related to Mr. Ajaj's claims. 33. Any witness, including but not limited to other treating physicians and health care providers as necessary to rebut or authenticate records. 34. 35. III. Any witness on 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 his claims raised in the Third Amended Complaint. 2. Robert Hood Community Education Centers 2925 East Las Vegas Street Colorado Springs, Colorado 80906 21

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Mr. Hood is a defendant in this lawsuit and may testify regarding his knowledge of the BOP, Mr. Ajaj, and the claims raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 3. James Burrell Federal Bureau of Prisons 400 First Street, N.W. Washington, D.C.

Mr. Burrell is a defendant in this lawsuit and may testify regarding his knowledge of the BOP, Mr. Ajaj, and the claims raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 4. 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 may testify regarding his knowledge of the BOP, Mr. Ajaj, and the claims raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 5. 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 may testify regarding his knowledge of the BOP, Mr. Ajaj, and the claims raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 6. J.C. Zuercher Federal Correctional Institution P.O. 6500 Florence, Colorado 81226

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Mr. Zuercher is a defendant in this lawsuit and may testify regarding his knowledge of the BOP, Mr. Ajaj, and the claims raised in the Third Amended Complaint, and as to any matter raised in his deposition or at trial. 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, the step down process, Mr. Ajaj, and his conversations with Mr. Ajaj. Mr. Collins may also testify about his knowledge regarding the claims raised in the Third Amended Complaint. 8. 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 claims raised in the Third Amended Complaint. 9. Tommy Gomez United States Penitentiary, Administrative Maximum P.O. Box 8500 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 claims raised in the Third Amended Complaint. 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, the step-down process, her conversations 23

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with Mr. Ajaj and others, her knowledge of Mr. Ajaj, and her knowledge regarding the claims raised in the Third Amended Complaint. 11. 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 claims raised in the Third Amended Complaint. 12. 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 claims raised in the Third Amended Complaint. 13. Keith Saunders Correctional Officer 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 claims raised in the Third Amended Complaint. 14. Vindel Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226 24

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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, 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 claims raised in the Third Amended Complaint. 15. 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, and Mr. Ajaj's medical needs and treatment. Captain Bauer may also testify about his knowledge regarding Claims One, Two and Three raised in the Third Amended Complaint. 16. S. Nafziger, M.D. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Nafziger 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 Mr. Ajaj. 17. Lawrence Leyba, D.O. United States Penitentiary, High Security P.O. Box 7500 Florence, Colorado 81226

Dr. Leyba was the Clinical Director at the United States Penitentiary, Administrative Maximum. Dr. Leyba may be called to testify as to Plaintiff's care and treatment, prognosis, orders, and any other issues within the scope of his care and treatment of Mr. Ajaj. Dr. Leyba may also be called to testify regarding his medical care and opinions of Mr. Ajaj, his examinations of Mr. Ajaj, his conversations with Mr. Ajaj and others concerning Mr. Ajaj's health needs, and other matters pertaining to the claims raised in the Third Amended Complaint.

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18.

Craig S. Shapiro, MD 1925 E. Orman Ave. Suite 254 Pueblo, CO 81004 (719) 566-0916

Dr. Shapiro is a pulmonologist who evaluated and treated Plaintiff in June 2003. Dr. Shapiro may testify as to Mr. Ajaj's care and treatment, prognosis, orders, and any other issues within the scope of his care and treatment of Mr. Ajaj. Dr. Shapiro may also testify regarding his medical opinions and directions regarding Mr. Ajaj, as well as to other information pertaining to the claims raised in the Third Amended Complaint. 19. Charles Turner Federal Correctional Institution P.O. 6500 Florence, Colorado 81226

Mr. Turner is the Facilities Manager at the Federal Correctional Complex, Florence, Colorado, and may testify regarding information pertaining to the claims raised in the Third Amended Complaint, including but not limited to, information about the duct and ventilation system at the ADX. 20. Mark Masur HVAC United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Masur is a HVAC technician at ADX and may testify regarding his knowledge of the BOP, the ranges and inmates at the ADX, HVAC issues with the ranges at the ADX, his conversations with and knowledge of Mr. Ajaj, and his knowledge regarding the claims raised in the Third Amended Complaint. 21. 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 claims raised in the Third Amended Complaint, including but not limited to, Plaintiff's due process claim concerning his transfer to and continued confinement at the ADX.

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22.

Greg Hershberger Retired from Bureau of Prisons No Address Known

Mr. Hershberger was the Regional Director, North Central Region, and may testify regarding information pertaining to the claims raised in the Third Amended Complaint, including but not limited to, information about Plaintiff's transfer to and continued confinement at the ADX. Defendant may use testimony from Mr. Hershberger's videotaped deposition in lieu of live testimony. 23. 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 in the Third Amended Complaint, including but not limited to any investigations or security concerns involving Plaintiff. 24. 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, his observations at trial, 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. 25. 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, 27

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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. 26. Marvin Schwarz, M.D. The University of Colorado Health Sciences Center Division of Pulmonary Sciences & Critical Care Medicine 4200 E. 9th Avenue C272, SOM Room 5525 Denver, CO 80262 (303) 315-7047

Dr. Schwarz 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 if any are provided, 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. 27. Any witness, including but not limited to other treating physicians and health care providers as necessary to rebut or authenticate records. 28. 29. 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. 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

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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 do not believe that settlement is possible in this matter. 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. 2. Trial is to the Court. The parties estimate that trial will take ten (10) days.

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DATED this _____ day of _____________ 200__. 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/ Amanda Rocque 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] Attorneys for Defendants

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