Free Statement - District Court of Arizona - Arizona

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Terry Goddard Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Eddie Hatch, No. CV 04-0541 PHX JWS (MS) Plaintiff, v. Terry Stewart, et al., Defendants. Defendants,1 by and through undersigned counsel, submit the following Statement of Facts in support of Defendants' Motion for Summary Judgment: 1. At the time of the incidents complained of, Plaintiff Eddie Hatch STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

("Plaintiff"), ADC #040402, was an inmate in the custody of the Arizona Department of Corrections ("ADC"). (See Plaintiff's Redacted Arizona Inmate Management System ["AIMS"] Report [attached hereto as Exhibit 1] (an unredacted copy is available upon request for this Court's in camera inspection.)) Plaintiff was released from ADC in March
2004, and is currently incarcerated in a federal prison in Atwater, California. (Id.) 2. On March 17, 2004, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983

("§ 1983"). (Dkt. 1 [attached hereto as Exhibit 2].)

Terry Stewart, Thomas Lutz, Jim Taylor, Ronolfo Macabuhay, Ronald Lawrence, Harold E. Whitney, Bruce E. Kanter, Jimmy Zapien, Vickie Hunt, Faith Lee, Kelly Whiting, and A. Putnam.
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3.

In Count I of his Complaint, Plaintiff alleges that Defendants Dr. Macabuhay,

Dr. Whitney and Dr. Kanter were deliberately indifferent to his medical needs when they refused to send him to an outside specialist for his back pain. (Id. at 4-4b.) Plaintiff further

alleges that Defendants Stewart, Lutz and Taylor were also deliberately indifferent to his medical needs because they did not expedite his requests for outside medical referrals and surgery. (Id. at 4c.) 4. In Count II of his Complaint, Plaintiff alleges that Defendants Zapien and

Hunt were deliberately indifferent to his medical needs when they refused to serve him meals in his cell. (Id. at 5.) Plaintiff further asserts that Defendants Zapien and Hunt retaliated against him for seeking medical treatment. (Id. at 5-5a.) 5. In Count III of his Complaint, Plaintiff alleges that he fell down the stairs

because Defendants Lawrence, Putnam, Whiting and Lee were deliberately indifferent to his medical needs when they failed to follow medical orders providing that Plaintiff was to be housed in a lower-tier cell in a lower bunk following his return from back surgery. (Id. at 6-6b.) 6. Plaintiff began complaining of back pain in January 2002. (Id. at 4.)

Plaintiff admits that he has a history of back pain and that he has undergone two previous back surgeries. (Id.) Plaintiff asserts that, based on his past experience, he believed that he required an outside specialist and another back surgery to resolve his back pain. (Id.) Plaintiff immediately requested that ADC medical providers send him to an outside specialist. (Id.) Plaintiff's ADC medical providers began treating his back pain

conservatively, with rest and pain medications. (Id. at 4a.) When this conservative treatment did not alleviate Plaintiff's condition, ADC medical providers ordered x-rays, an MRI, and an outside orthopedic surgery consultation for Plaintiff. (See Plaintiff's Medical Records2 at 35-48 [attached hereto as Exhibit 3].) Plaintiff's medical records are extensive. As such, Defendants have attached copies of only those records that are relevant to Plaintiff's claims. A complete copy of Plaintiff's medical records is available to the Court on request. 2
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7.

Plaintiff wrote a letter to Deputy Warden Haley stating that he believed he

was receiving inadequate medical care and that he was engaging in a hunger strike until he was sent to an outside specialist. (See Declaration of Aurora Aguilar ("Aguilar

Declaration"), Attachment B at 5 [attached hereto as Exhibit 4].) Deputy Warden Haley responded that Plaintiff was scheduled for an MRI in the near future and that ADC was attempting to treat Plaintiff's condition as quickly as possible. (Id., Attachment B at 6.) Plaintiff admits that he saw an outside specialist and underwent back surgery in June 2002. (Exhibit 2 at 4b.) 8. On December 9, 2003, Plaintiff initiated the Inmate Grievance System

regarding the back pain he suffered and the treatment he received in 2002. (Aguilar Declaration, Attachment B at 17.) Plaintiff pursued this issue through the Director level of the grievance process. (Id., Attachment B at 21-22.) 9. On December 9, 2003, Plaintiff also wrote an Inmate Letter to Deputy

Warden Haley complaining that on March 17, 2002, he fell in his cell and was taken to medical. (Id., Attachment B at 15.) Plaintiff claims that when he returned from medical Defendant Zapien ordered Defendant Hunt to "write [him] up" for lying and faking an injury. (Id.) ADC has no record that Plaintiff was ever disciplined in March 2002 and Plaintiff has provided Defendants with no such record. (See Exhibit 1 at 9-11.) 10. Plaintiff further asserts that on the following day, March 18, 2002, Defendant

Zapien refused to serve him his meals in his cell despite the fact that Plaintiff had a medical "lay-in" confining him to his cell for all activities, including meals. (Aguilar Declaration, Attachment B at 15.) Plaintiff's medical lay-in expired on March 18, 2002 and was renewed by Plaintiff's medical providers on March 21, 2002. (See Exhibit 1 at 4.) Plaintiff did not pursue this matter any further through the grievance process. (Aguilar Declaration at ¶ 11.) 11. Plaintiff underwent back surgery on June 28, 2002. (Exhibit 2 at 6; Exhibit 3

at 84.) Plaintiff returned to ASPC-Lewis on July 8, 2002. (Exhibit 2 at 6.) Plaintiff was 3
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taken to the count movement office upon his arrival at the Morey Unit for his cell assignment. (See Declaration of Faith Lee ("Lee Declaration") at ¶ 3 [attached hereto as Exhibit 5].) Defendant Lee was the count movement officer on duty. (Id. at ¶3.) 12. None of the officers on duty knew that Plaintiff had just returned from back

surgery and Plaintiff did not inform them of this fact. (Id. at ¶¶ 4-7; Declaration of Ronald Lawrence ("Lawrence Declaration") at ¶¶ 4-5 [attached hereto as Exhibit 6].) Pursuant to federal regulations, only ADC medical providers and inmates possess information regarding an inmate's medical condition and treatment. (Lawrence Declaration at ¶ 4.) If an inmate suffers from a medical condition that requires special accommodations, it is the responsibility of the inmate to inform ADC staff and provide them with copies of medical waivers authorizing the accommodations. (Id.; Lee Declaration at ¶ 6.) 13. Plaintiff did not inform ADC staff that he had just returned from back

surgery, and he did not show any medical waivers to Defendant Lee. (Lee Declaration at ¶¶ 6-7; Lawrence Declaration at ¶¶ 5-7.) Defendant Lee checked the AIMS system and noted that Plaintiff previously had a medical waiver for a lower bunk in a lower-tier cell that had expired in May 2002. (Lee Declaration at ¶ 4; Exhibit 1 at 5.) 14. Defendant Lee assigned Plaintiff to an upper bunk in a second-tier cell. (Id. Plaintiff made no objection to this housing

at ¶ 3; Lawrence Declaration at ¶ 5.)

assignment. (Lee Declaration at ¶¶ 3, 7; Lawrence Declaration at ¶¶ 6-7.) 15. Plaintiff failed to report to his newly assigned second-tier cell. (Lawrence

Declaration at ¶ 6.) Instead, Plaintiff returned to the lower-tier cell that he had occupied prior to his back surgery. (Id.) When formal count was conducted later that day, Plaintiff was found in the wrong cell. (Id.) Defendant Lawrence ordered Defendants Whiting and Putnam to escort Plaintiff to his assigned cell. (Id. at ¶ 7.) 16. After he escorted Plaintiff to his assigned cell, Defendant Putnam called

Defendant Lawrence and informed him that Plaintiff had told him that he had recently

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undergone back surgery and then showed him a medical waiver, or Special Needs Order ("SNO"), for a lower bunk in a lower-tier cell. (Id.) 17. There were no lower bunks in lower-tier cells available in the cell block

Plaintiff was assigned to at that time. (Id. at ¶ 8.) Defendant Lawrence was concerned that if he moved Plaintiff to another cell block it might exacerbate Plaintiff's medical condition. (Id.) 18. Defendant Lawrence had Defendant Putnam ask Plaintiff if he could remain

in the current cell for the evening. (Id. at ¶ 9.) Defendant Lawrence entered a lay-in order so that Plaintiff would be served breakfast in his cell and then they would move him to a more appropriate cell thereafter. (Id.) Plaintiff agreed and remained in the second-tier cell that evening. (Id.) 19. The following morning, in direct violation of Defendant Lawrence's lay-in

order, Plaintiff left his cell along with the other inmates who turned out for breakfast. (Id. at ¶ 10; Exhibit 2 at 6a.) Plaintiff fell down the stairs and appeared to be unconscious. (Lawrence Declaration at ¶ 11; Exhibit 2 at 6a.) 20. When he regained consciousness, Plaintiff complained that he could not

move his legs. (Lawrence Declaration at ¶ 12.) Plaintiff was air evacuated to a hospital for treatment consistent with standard ADC procedures. (Id.) 21. A subsequent investigation into the incident was conducted and other

inmates interviewed stated that Plaintiff had staged the accident to create grounds for a lawsuit. (Id. at ¶ 13 & Attachment B.) 22. On July 15, 2002, Plaintiff sent an Inmate Letter to Deputy Warden Haley

complaining that he was not placed back in the same cell he was housed in prior to his back surgery. (Aguilar Declaration, Attachment B at 7.) Plaintiff also complained that, upon his return to the cell block after falling down the stairs on July 9, 2002, he was assigned to a different lower-tier cell than the one he had occupied prior to his back surgery. (Id.) Plaintiff's sole concern was that he be provided with a particular cellmate 5
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who shared his religious beliefs. (Id.) Deputy Warden Haley responded and told Plaintiff how to request a particular cellmate. (Id., Attachment B at 12.) Plaintiff did not pursue this matter any further through the grievance process. (Id. at ¶ 12.) 23. Plaintiff asserts that because of Defendants' acts he has suffered violations of

his constitutional rights, cruel and unusual punishment, and permanent, irreparable physical injury. (Exhibit 2 at 4c, 5a, 6b, 7.) Plaintiff seeks the sum of $1,500,000.00 from
each of the individual defendants, future medical expenses, costs, Attorneys' fees and any other relief the Court deems necessary and proper. (Id. at 7) 24.

At the times relevant to Plaintiff's complaint, the ADC's three-tiered

administrative remedies procedure was governed by ADC Department Order ("DO") 802. (Aguilar Declaration at ¶ 3.) 25. Department Order 802, Inmate Grievance System, provides that an inmate

may use the grievance process for issues relating to "property, staff, visitation, mail, food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (Id. at ¶ 4 & Attachment A.)
26.

To begin the grievance process, an inmate must file an "Inmate Letter"

attempting to informally resolve a complaint within 10 working days after he becomes aware of a specific problem. (Id. at ¶ 5.) If the inmate is not satisfied with the response, he may file a formal grievance within 10 calendar days to the grievance coordinator. (Id.) If the inmate is not satisfied with the grievance coordinator's response, he may file a grievance appeal within 10 calendar days to a higher official, such as the Deputy Warden or the Warden. (Id.) If the inmate is not satisfied with the response to the grievance appeal, he may appeal to the ADC Director within 10 calendar days. (Id.) 27. An inmate's claim is considered exhausted when an appeal is submitted to

the Director and a Response is returned. (Id. at ¶ 6.) Failure to appeal an issue through to the Director's level constitutes a failure to exhaust the administrative remedies provided by

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the ADC grievance process, pursuant to DO 802. (Id. at ¶ 7.) A copy of DO 802 is available to all inmates in the library of each unit. (Id. at ¶ 8.)

RESPECTFULLY SUBMITTED this 19th day of January, 2006. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants Original e-filed this 19th day of January, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Eddie Hatch, #47884008 USP - Atwater P.O. Box 019000 #1 Federal Way Atwater, CA 95301 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS04-0505/G#02-10038 #942693

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