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 Friday, July 14, 2006, at 4:00 p.m., at the Alfred A. Arraj, United States Courthouse, 901 19th St., Denver, Colorado, 80294. Present at the conference were John Riley and Carmen Reilly, Montgomery, Little, Soran, Murray & Kuhn, P.C., representing Plaintiff Ahmed Ajaj. Representing Defendants were Assistant United States Attorneys, Amanda Rocque and Elizabeth Weishaupl, United States Attorneys Office for the District of Colorado. 2. JURISDICTION Jurisdiction is appropriate in this matter as to the United States pursuant to the Federal Tort Claims Act, ("FTCA") 28 U.S.C. §§ 2671, et seq. Jurisdiction over the individual 1

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Defendants is appropriate pursuant to 28 U.S.C. §§ 1346, 1331, 1343 and 1361. 3. ELEMENTS OF CLAIMS AND STATEMENT OF CLAIMS AND DEFENSES I. Plaintiff Plaintiff believes that the following constitute the elements of the claims asserted by Plaintiff Ahmed Ajaj. A. Claim One ­ Federal Tort Claims Act Claim

Federal Tort Claims Act claim against the United States for its negligent failure to house the Plaintiff in a low altitude, smoke-free facility appropriate to his medical needs. Elements: 1. Duty: The United States owes a duty to Mr. Ajaj pursuant to 18 U.S.C. § 4042. Breach Causation Damages

2. 3. 4. B.

Claim Two ­ Eighth Amendment Deliberate Indifference to Medical Needs

Eight Amendment claim for failure to protect against an unreasonable risk of future harm and violating Ajaj's right to a smoke-free environment and the right to be free from unreasonable risks of serious damage to future health and knowing disregard of a serious condition, medical need and/or risk of harm. Elements: 1. Deliberate Indifference a. Objective component: if the medical need is one that has been diagnosed by a physician or is so obvious that even a lay person 2

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would easily recognize the necessity for a doctor's attention. b. Subjective component: If the official knows of and disregards an excessive risk to inmate health or safety. 2. To Serious Medical Needs

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). C. Claim Three ­ Eighth Amendment Deliberate Indifference to Conditions of Confinement Elements: 1. Suffering substantial harm because of the deprivation of humane conditions of confinement, and 2. That the government official acted with a sufficiently culpable state of mind, by knowing of the risk to inmate health or safety and disregarding the risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994) D. Claim Three- Fifth Amendment claim for deprivation of a protected liberty interest without procedural due process concerning transfer to and continued confinement in USP-ADX and being subjected to atypical and significant hardship. Elements: 1. Deprivation of a life, liberty or property interest. 2. Imposition of atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 480 (1995).

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E.

Claim Five- Fifth Amendment claim for violation of the equal protection clause for singling Ajaj out for different and harsher treatment than other inmates similarly situated to him. Elements: 1. 2. Classification based on race or national origin that is not Narrowly tailored to further a compelling governmental interest

Loving v. Virginia, 388 U.S. 1, (1967) II. Defendants Defendants believe that the following constitute the elements of the claims asserted by Plaintiff Ahmed Ajaj. A. Claim One: FTCA Claim

Defendant United States does not believe that the claim as described by Plaintiff is the FTCA claim which survived the Motion to Dismiss Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and was outlined by the Court's May 11, 2006 Order as a negligent failure to follow medical instructions. Defendant believes that the elements of such a claim, if such a claim exists, would be: 1. 2. 3. 4. B. Duty: The United States owes a duty to Mr. Ajaj pursuant to 18 U.S.C. § 4042. Breach Causation Damages Claim Two ­ Eighth Amendment Deliberate Indifference to Medical Needs

To state a claim for violation of the Eighth Amendment based on inadequate medical care, Plaintiff must demonstrate that the Federal Officers were deliberately indifferent to

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Plaintiff's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The concept of "[d]eliberate indifference involves both an objective and a subjective component." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component is met if 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." Id. (internal quotation marks omitted). "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, 427 F.3d at 751 (internal quotation marks omitted). To satisfy the subjective test, the plaintiff must allege that the defendants acted with a "sufficiently culpable state of mind." Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 809 (10th Cir. 1999). Allegations of inadvertent failure to provide medical care or negligence are insufficient to establish the requisite culpable state of mind. Estelle, 429 U.S. at 105-06. It is only the unnecessary and wanton infliction of unnecessary pain that violates the Constitution. Id. at 105. C. Claim Three ­ Eighth Amendment Deliberate Indifference Conditions of Confinement

To state a claim for deliberate indifference to conditions of confinement under the Eighth Amendment, a plaintiff must allege that: (1) he suffered substantial harm because of the deprivation of humane conditions of confinement, and (2) that the government official acted with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 837 (1994). With respect to the subjective element of this two-part test, "a plaintiff must establish that defendant(s)

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knew he faced a substantial risk of harm and disregarded that risk, `by failing to take reasonable measures to abate it.'" Id. at 847. D. Claim Three ­ Fifth Amendment Due Process Claim

"`The Due Process Clause guarantees due process only when a person is to be deprived of life, liberty, or property.'" Chambers v. Colorado Dep't of Corrections, 205 F.3d 1237, 1242 (10th Cir. 2000) (citation omitted). In the prison context, "[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken `within the sentence imposed.'" Sandin v. Conner, 515 U.S. 472, 480 (1995), quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983). "The transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt, 459 U.S. at 468; see also Bailey v. Shillinger, 828 F.2d 651, 652-53 (10th Cir. 1987) (per curiam). In those instances where a liberty interest does not arise directly under the Due Process Clause, the government may create a liberty interest through state policies or regulations. Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 2393 (2005). In Sandin, the Supreme Court set forth the circumstances under which government conduct could create a liberty interest, even where no liberty interest exists independently under the Due Process Clause: these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as 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. 515 U.S. at 484 (internal citations and quotation marks omitted).

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E.

Claim Five ­ Fifth Amendment Equal Protection Claim

The Fourteenth Amendment of the United States Constitution guarantees all persons "equal protection of the laws." U.S. Const. Amend. XIV. The Supreme Court has held that this same constitutional protection applies to the federal government through the Fifth Amendment. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954). An equal protection violation occurs when the government treats someone differently than another person who is "similarly situated." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). When a plaintiff is neither alleging that he is a member of a constitutionally protected class nor that he has been denied a fundamental right, the government does not run afoul of the Equal Protection Clause if there is a "rational relationship" between the disparity in treatment and a legitimate government interest. Penrod, 94 F.3d at 1406. III. Statement of Plaintiff's Claims Defendants unlawfully transferred Plaintiff to ADX after September 11, 2001 and have continued to house him there without due process and in violation of his federal rights. Plaintiff's conditions of confinement include indefinite isolation and impose atypical and significant hardship on him. Plaintiff is continuously denied the ability to step-down within the institution, while other inmates who are more violent are allowed to do so. Plaintiff also claims that Defendants knowingly breached their duty of care to him by failing to follow medical instructions and housing him in an institution that is not suitable for him. Plaintiff has been continuously housed in a smoke free environment when doctors' have ordered he not be. Defendants have also held Plaintiff in a high altitude elevation when doctors' have instructed he would function better in lower elevations. Defendants' conduct is

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in violation of the claims listed above and have caused Plaintiff substantial harm. Ajaj claims compensatory damages based on his chronic fatigue, his inability to participate in activities he previously enjoyed; lost enjoyment of his life; higher susceptibility to other diseases and other ailments; and inability to walk for periods in excess of fifteen minutes without significant shortness of breath. Plaintiff's condition is exacerbated by his present institution's elevation of over 5,000 feet. Plaintiff seeks compensatory damages based on his physical injuries and mental suffering caused by Defendants' failure to fulfill their constitutional and statutory duties to Plaintiff by their continued failure to provide adequate medical care and adequate housing; their deprivation of Plaintiff's liberty interest and their violation of equal protection of the laws. Plaintiff also seeks injunctive relief to be moved to the intermediate step down unit and transferred from ADX to a more suitable institution. IV. Statement of Defendants' Claims and Defenses The United States disputes that it breached any duty owed to Mr. Ajaj, or that it or any of its employees or agents were the proximate cause of any damage alleged by Mr. Ajaj. In addition, the United States states that it is entitled to all defenses provided under the FTCA, and the Colorado statutes governing torts. The individual Defendants deny that they violated any constitutional right of Mr. Ajaj. Specifically they deny that they violated his Eighth Amendment rights and his Fifth Amendment rights. In addition, the individual Defendants assert that they are entitled to qualified immunity for all acts allegedly forming the basis for the constitutional tort claim and that the claims asserted in the Third Amended Complaint fail to state claims upon which relief can be granted. 8

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Defendants assert that the Court lacks jurisdiction over some or all of the claims raised in the Third Amended Complaint. 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. The individual Federal Officers are entitled to qualified immunity on all claims

raised against them; 4. This Court lacks subject matter jurisdiction over Plaintiff's FTCA claim against

the United States; 5. Plaintiff failed to properly exhaust his administrative remedies before filing this

case in federal court; 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

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9. doctrine; 10. injury; 11.

Plaintiff's claims are barred in whole or in part by the discretionary function

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 know 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. 16. Plaintiff is barred from recovery because he voluntarily assumed a known risk; 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; 17. Plaintiff's claims may be barred in whole or part by his failure to mitigate

his claimed damages, if any; 18. Plaintiff's damages are the proximate result of a pre-existing condition; Plaintiff's

damages were caused in whole or in part by the actions of third parties over which Defendant has no control; 19. Plaintiff's damages are barred in whole or in part by the actions of Plaintiff; 10

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20.

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; 21. To the extent the common or statutory law of Colorado, or any jurisdiction

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.; 22. and 23. Plaintiff's claim for attorney's fees for the Federal Tort Claims Act claim, if any, Plaintiff's claims are governed in whole or in part by the Federal Tort Claims Act;

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 is an inmate in the custody of the Bureau of Prisons Ajaj is incarcerated at the Administrative Maximum Prison ("ADX") located in Florence Colorado. 5. PENDING MOTIONS Plaintiff has filed a motion seeking an extension of time to designate an expert and provide an expert report. Plaintiff anticipates filing a motion to amend his Third Amended Complaint on July 10, 2006. Plaintiff also anticipates filing a motion to compel documents Defendants have claimed privileged to based on the law enforcement privilege. Defendant 11

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intends to file a motion for leave to file summary judgment and tender a summary judgment motion limiting the claims and preserving the individual Defendants' rights under the doctrine of qualified immunity. 6. WITNESSES A. Stipulated Witness List and Estimated Trial Time See Attachment 1, Stipulated Witness List. B. Plaintiff's Non-expert Witnesses: (1) 1. Plaintiff's Will Call Witnesses 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. 2. James Burrell Federal Bureau of Prisons 400 First Street, N.W. Washington, D.C.

Mr. Burrell is a defendant in this lawsuit. 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. 4. Claude Chester Federal Bureau of Prisons 12

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North Central Regional Office 400 State Avenue Tower II, Suite 800 Kansas City, KS 66101 Mr. Chester is a defendant in this lawsuit. 5. J.C. Zuercher Federal Correctional Institution P.O. 6500 Florence, Colorado 81226

Mr. Zuercher is a defendant in this lawsuit. 6. Ahmed M. Ajaj United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226 Mark Collins United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

7.

Mr. Collins is a Unit Manager at the United States Penitentiary, Administrative Maximum, and may testify regarding his knowledge of Plaintiff's claims. 8. Vindel Sudlow United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Sudlow is a Case Manager at the United States Penitentiary, Administrative Maximum, and may be called to testify regarding his knowledge of the BOP, the 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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(2) 1.

Plaintiff's May Call Witnesses 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, and his knowledge regarding Plaintiff's claims. 2. 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, Mr. Ajaj, and his knowledge regarding the Plaintiff's claims. 3. 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, Mr. Ajaj, and his knowledge regarding Plaintiff's claims. 4. 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. 5. T.G. Werlich Unit Manger United States Penitentiary, Administrative Maximum P.O. Box 8500 14

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Florence, Colorado 81226 Mr. Werlich is a Unit Manager at ADX and he may testify regarding his knowledge of the BOP, the Unit Team, the ranges and 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 Plaintiff's claims. 6. 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 he may testify regarding his knowledge of the BOP, the ranges and inmates at the ADX, the recreational opportunities on ranges, the interaction with inmates, his conversations with and knowledge of Mr. Ajaj, and his knowledge regarding Plaintiff's claims. 7. 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. 8. Dan Dover No Address Known Mr. Dover was involved in transferring Plaintiff to ADX and may be called to testify regarding information pertaining to Plaintiff's claims. 9. Dr. Lawrence Leyba

Dr. Lebya is a treating physician and may be called to testify regarding his care and treatment of Plaintiff and any matter raised in Plaintiff's medical records related to Plaintiff's claims. 10. 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, his knowledge of ADX and the his knowledge of Plaintiff's claims. 15

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11.

Eric Rudolph United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Rudolph is an inmate at ADX and may be called to testify regarding the conditions of confinement, his knowledge of ADX and the his knowledge of Plaintiff's claims. 12. 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, his knowledge of ADX and the his knowledge of Plaintiff's claims. 13. Ibrahim El Jabrowny United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Jabrowny is an inmate at ADX and may be called to testify regarding the conditions of confinement, his knowledge of ADX and the his knowledge of Plaintiff's claims. 14. Zaid Safarini United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Safarini is an inmate at ADX and may be called to testify regarding the conditions of confinement, his knowledge of ADX and the his knowledge of Plaintiff's claims. 15. 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 to testify regarding his knowledge of the BOP and information regarding Plaintiff's claims.

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16.

Dr. Richard Frederick

Dr. Frederick is a treating physician and may be called to testify regarding the his care and treatment of Plaintiff and with any matter raised in Plaintiff's medical records related to Plaintiff's claims. 17. Dr. Charles Glazzard

Dr. Glazzard is a treating physician and may be called to testify regarding the his care and treatment of Plaintiff and with any matter raised in Plaintiff's medical records related to Plaintiff's claims. 18. Dr. Jere Sutton

Dr. Sutton is a treating physician and may be called to testify regarding the his care and treatment of Plaintiff and with any matter raised in Plaintiff's medical records related to Plaintiff's claims. 19. 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 claims related to Plaintiff's claims. 20. 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. 21. Mike Junk Federal Bureau of Prisons North Central Regional Office 400 State Avenue Tower II, Suite 800 Kansas City, KS 66101

Mr. Junk is the Correctional Programs Administrator for the North Central Region and may testify regarding information pertaining to the claims raised in the Third Amended Complaint. 17

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22.

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. 23. E. Lamar Hughston

Mr. Hughston was the Captain at the United States Penitentiary, Administrative Maximum, and may testify regarding information pertaining to the claims raised in the Third Amended Complaint. 24. Robert G. Smith, M.D. U.S. Medical Center for Federal Prisoners 1900 West Sunshine Street Springfield, Missouri 65807

Dr. Smith is a treating physician and is a treating physician and may be called to testify regarding his care and treatment of Plaintiff and any matter raised in Plaintiff's medical records related to Plaintiff's claims. 25. K. Killen, LVN U.S.P. Beaumont, 6200 Knauth Road Beaumont, Texas 77705

Killen is a treating medical provider and may be called to testify regarding his care and treatment of Plaintiff and information contained in the medical records related to Plaintiff's claims. 26. J. Knox, M.D. U.S.P. Beaumont 6200 Knauth Road, Beaumont, Texas 77705

Dr. Knox is a treating medical provider is a treating medical provider and may be called to testify regarding his care and treatment of Plaintiff and information contained in the medical records related to Plaintiff's claims. 27. Any witness, including but not limited to other treating physicians and health care providers as necessary to rebut or authenticate records. Any witness on Defendants' will call or may call trial disclosures.

28.

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29. C.

Any witness as necessary for foundation or impeachment.

Defendants' Non-expert Witnesses (1) 1. Defendants' Will Call Witnesses Robert Hood Community Education Centers 2925 East Las Vegas Street Colorado Springs, Colorado 80906

Mr. Hood is a defendant in this lawsuit and may testify regarding his knowledge of the BOP, Mr. Ajaj, and his knowledge regarding the claims raised in the Third Amended Complaint, and as 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 may testify regarding his knowledge of the BOP, Mr. Ajaj, and his knowledge regarding 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 may testify regarding his knowledge of the BOP, Mr. Ajaj, and his knowledge regarding the claims raised in the Third Amended Complaint, and as 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 may testify regarding his knowledge of the BOP, Mr. Ajaj, and his knowledge regarding the claims raised in the Third Amended Complaint 19

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and as 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 may testify regarding his knowledge of the BOP, Mr. Ajaj, and his knowledge regarding the claims raised in the Third Amended Complaint and as to any matter raised in his deposition. 6. 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, and his knowledge regarding the claims raised in the Third Amended Complaint. 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 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, Mr. Ajaj, and 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 20

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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, 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, her conversations 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 Team, the ranges and 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 he may testify regarding his knowledge of the BOP, the ranges and inmates 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. Ahmed M. Ajaj United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

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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) 1. Defendants' May Call Witnesses: 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, and may be called regarding his medical care and opinions regarding Mr. Ajaj, his examinations of Mr. Ajaj, his conversations with Mr. Ajaj and others concerning Mr. Ajaj's health care and other matters pertaining to the claims raised in the Third Amended Complaint. 2. 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 the claims raised in the Third Amended Complaint. 3. 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. 4. 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.

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5.

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

Mr. Junk is the Correctional Programs Administrator for the North Central Region and may testify regarding information pertaining to the claims raised in the Third Amended Complaint. 6. 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. 7. 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. 8. E. Lamar Hughston

Mr. Hughston was the Captain at the United States Penitentiary, Administrative Maximum, and may testify regarding information pertaining to the claims raised in the Third Amended Complaint. 9. 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, and he may testify regarding his medical opinions and directions regarding Mr. Ajaj, and as to other information pertaining to the claims raised in the Third Amended Complaint.

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10.

J. Serrano FCI Edgfield 501 Gary Hill Road Edgefield, SC 29284

Dr. Serrano is a physician who treated and evaluated Plaintiff. He may testify regarding his care and treatment of Mr. Ajaj, and other information pertaining to the claims raised in the Third Amended Complaint. 11. Anthony Osagie, P.A. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Osagie is a physician's assistant at ADX Florence who evaluated and treated Plaintiff. He may testify regarding his care and treatment of Mr. Ajaj, consistent with his records, and as to other information pertaining to the claims raised in the Third Amended Complaint. 12. Lance Pysher, M.D. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Pysher may have evaluated and treated Plaintiff, and may testify regarding his care and treatment, consistent with his records, and as to other information pertaining to the claims raised in the Third Amended Complaint. 13. R. Camacho, P.A. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Camacho is a physician's assistant who treated and evaluated Plaintiff, and may testify consistent with his records regarding his care and treatment of Mr. Ajaj and as to other information pertaining to the claims raised in the Third Amended Complaint. 14. Ralph Spock, M.D. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Spock is a physician who may have evaluated Plaintiff and may testify regarding his care and treatment consistent with his records, and as to other information pertaining to the claims raised in the Third Amended Complaint. 24

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15.

Lt. H. Trapp, NP United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Trapp may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 16. Curtis Harlow, M.D. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Harlow is a physician who may have evaluated and treated Plaintiff, and may have testify consistent with his records regarding his care and treatment and as to other information pertaining to the claims raised in the Third Amended Complaint. 17. N. Gladbach, FNP United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Ms. Gladbach is a health care provider who may have evaluated and treated Plaintiff, and may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 18. D. Schiefelbein, P.A United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Schiefelbein is a physician's assistant who may have evaluated and treated Plaintiff, and may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 19. J. Mauly, Health Tech. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Mauly is a health tech at ADX-Florence. He may have evaluated and treated Plaintiff and may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 25

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20.

Capt. J.M. Zello, R. Ph. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Capt. Zello may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 21. Lt. A. Walker, P.A. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Lt. Walker is a physician's assistant and may have evaluated and treated Plaintiff, and may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 22. Paul G. Zohn, Ph.D. United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Zohn is a staff psychologist at ADX-Florence who may have evaluated and treated Plaintiff, and may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint, the psychological services provided to inmates, his interaction with Ajaj and others, his opinion of Ajaj's state of health, and as to other issues pertinent to the Complaint. 23. Michael W. Morrison, Ph.D United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Dr. Morison is a clinical psychologist and may have evaluated and treated Plaintiff. He may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 24. Lawrence Schlak, Psy.D. 501 Gary Hill Road Edgefield, SC 29824

Dr. Schlak was the chief of Psychological Services at FCI-Edgefield. He may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 26

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25.

Angela Coleman, Ph.D. 501 Gary Hill Road Edgefield, SC 29824

Dr. Coleman was the DAP psychologist at FCI-Edgefield. She may have evaluated and treated Plaintiff, and may testify consistent with her records regarding information pertaining to the claims raised in the Third Amended Complaint.. 26. Tammara Bryan, Ph.D. 501 Gary Hill Road Edgefield, SC 29284

Dr. Bryan was a staff psychologist at FCI-Edgefield. She may have evaluated and treated Plaintiff, and may testify consistent with her records regarding information pertaining to the claims raised in the Third Amended Complaint. 27. Dennis Slate, Psy.D. 501 Gary Hill Road Edgefield, SC 29284

Dr. Slate was a staff psychologist at FCI-Edgefield. He may have evaluated and treated Plaintiff, and may testify consistent with his records regarding discoverable information pertaining to the claims raised in the Third Amended Complaint. 28. Scott Duncan, Psy.D. United States Penitentiary 601 McDonough Boulevard S. E. Atlanta, GA 30315

Dr. Duncan may have evaluated and treated Plaintiff in Atlanta. He may testify consistent with his records regarding discoverable information pertaining to the claims raised in the Third Amended Complaint. 30. Beverly Pair, Ph.D Federal Correctional Complex United States Penitentiary P.O. Box 26035 Beaumont, TX 77720

Dr. Pair may have evaluated and treated Plaintiff in FCI-Beaumont. She may have testify consistent with her records regarding information pertaining to the claims raised in the Third Amended Complaint.

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31.

Jim Mann, Ph.D. Federal Correctional Complex United States Penitentiary P.O. Box 26035 Beaumont, TX 77720

Dr. Mann may have evaluated and treated Plaintiff at FCI-Beaumont. He may testify consistent with his records regarding discoverable information pertaining to the claims raised in the Third Amended Complaint. 32. Chad Loman, Ph.D. Federal Correctional Complex United States Penitentiary P.O. Box 26035 Beaumont, TX 77720

Dr. Loman may have evaluated and treated Plaintiff at FCI-Beaumont. He may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 33. Tamara Mischel, Ph.D. Federal Correctional Complex United States Penitentiary P.O. Box 26035 Beaumont, TX 77720

Dr. Mischel was acting chief psychologist at FCI-Beaumont. She may testify consistent with her records regarding information pertaining to the claims raised in the Third Amended Complaint. 34. Chester Sigafoos, Ph.D. No address known

Dr. Sigafoos was chief psychologist at FCI Fairton. He may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 35. L. Thomas Kurcharski, Ph.D. Metropolitan Correctional Center 150 Park Row New York, NY 10007

Dr. Kurcharski treated and evaluated Plaintiff in New York. He testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 28

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36.

Sonja Ramirez, Ph.D. Metropolitan Correctional Center 150 Park Row New York, NY 10007

Dr. Ramirez treated and evaluated Plaintiff at MCC-New York. She may testify consistent with her records regarding information pertaining to the claims raised in the Third Amended Complaint. 37. Mary Tramontin, Psy. D. Metropolitan Correctional Center 150 Park Row New York, NY 10007

Dr. Tramontin treated and evaluated Plaintiff at MCC-New York. She may testify consistent with her records regarding information pertaining to the claims raised in the Third Amended Complaint. 38. Eric Hutchinson, Ph.D. Metropolitan Correctional Center 150 Park Row New York, NY 10007

Dr. Hutchinson treated and evaluated Plaintiff in 1997. He may testify consistent with his records regarding information pertaining to the claims raised in the Third Amended Complaint. 39. W. Alan Smith, Ph.D. No address known

Dr. Smith treated Plaintiff in 1995. He may testify consistent with his records and regarding information pertaining to the claims raised in the Third Amended Complaint. 40. 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 he may testify regarding his knowledge of the BOP, the ranges and inmates 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.

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41.

Mark Masur HVAC United States Penitentiary, Administrative Maximum P.O. Box 8500 Florence, Colorado 81226

Mr. Masur is a HVAC technician at ADX and he may testify regarding his knowledge of the BOP, the ranges, and HVAC issues with the inmates at the ADX, his conversations with and knowledge of Mr. Ajaj, and his knowledge regarding the claims raised in the Third Amended Complaint. 42. Any witness, including but not limited to other treating physicians and health care providers as necessary to rebut or authenticate records. Any witness on Plaintiff's will call or may call trial disclosures. Any witness as necessary for foundation or impeachment.

43. 44. C.

Plaintiff's Expert Witnesses (1) 1. Plaintiff's Will Call Expert Witnesses 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. 2. Pulmonologist Expert.

Plaintiff has filed a motion for an extension to designate an expert due to a conflict with his previously endorsed expert, Dr. Amy Olson. The identity of this expert witness will be supplemented once the pending motion regarding this issue is decided. (2) Plaintiff's May Call Expert Witnesses

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D.

Defendants' Expert Witnesses (1) Defendants' Will Call Expert Witnesses 1. Jeffrey L. Metzner, M.D. 3300 East First Avenue, Suite 590 Denver, CO 80206 (303) 355-6842

Dr. Metzner will testify consistent with his expert report, based on his expertise and review of the evidence in this matter, his interview of Ajaj, and other information including deposition testimony and expert reports of Dr Grassian, and consistent with his opinions expressed in his deposition testimony, if taken. Anatomical models, summaries, drawings, animations, photographs, video and/or other demonstrative exhibits may be used to explain his testimony, along with any medical literature or text discussed in this endorsement, referenced in his curriculum vitae, or endorsed in compliance with the Rules. 2. John M. Vanyur, Ph.D. Federal Bureau of Prisons 320 First Street, N.W. Room 454 Washington, D.C. 20534 (202) 307-3226

Dr. Vanyur will testify consistent with his expert report, based on his expertise and review of the evidence in this matter, including deposition testimony and expert reports, and consistent with his opinions expressed in his deposition testimony, if taken. Anatomical models, summaries, drawings, animations, photographs, video and/or other demonstrative exhibits may be used to explain his testimony, along with any medical literature or text discussed in this endorsement, referenced in his curriculum vitae, or endorsed in compliance with the Rules. 3. 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 31

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with the Rules. 4. S. Nafzinger, 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 Plaintiff. 5. Craig S. Shapiro, M.D. 1925 E. Orman Avenue Suite 254 Pueblo, CO 81004 (719) 566-0916

Dr. Shapiro is a treating physician of Plaintiff's who performed a pulmonary function test, and 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 Plaintiff. (2) Defendants' May Call Expert Witnesses 1. Lawrence Leyba, D.O. United States Penitentiary, High Security P.O. Box 7500 Florence, Colorado 81226

Dr. Leyba 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, and any other issues within the scope of his care and treatment of Plaintiff. 2. Any expert witness listed by Plaintiff. 7. EXHIBITS See Attachment 2, Stipulated Exhibit List. 8. DISCOVERY Discovery is set to close on July 14, 2006. Plaintiff has filed a motion seeking an extension of time until July 21, 2006 to designate an expert witness. Defendants take no position 32

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on that motion, but if the Court grants the motion, Defendants request the opportunity to depose that expert and to provide a rebuttal expert testimony. Plaintiff has also requested the deposition of Mr. Hershberger, which the parties are attempting to set up for the week of July 10, 2006. However if Mr. Hershberger is unable to be deposed the week of July 10, 2006, Plaintiff may request this deposition is allowed later than July 14, 2006. In addition, to the extent that Plaintiff seeks to amend the Third Amended Complaint, Defendants have been prevented from conducting any discovery into these new claims. Defendants would require additional time to conduct discovery and obtain expert testimony as necessary to rebut these claims, and therefore would be severely prejudiced without additional time for discovery. 9. SPECIAL ISSUES Plaintiff will be appearing at trial via videoconferencing. If any witnesses from the ADX are called to testify, either Plaintiff or the witness will have to appear telephonically. It is also anticipated that Dr. Grassian will testify by telephone or videoconferencing. 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.

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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 8-10 days.

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DATED this _____ day of _____________ 200__. BY THE COURT:

____________________________________ District Court Judge APPROVED:

WILLIAM J. LEONE United States Attorney

s/ Carmen Reilly John Riley Carmen Reilly 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 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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