Free Lodged Proposed Document - District Court of Arizona - Arizona

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Stephen G. Montoya, Bar No. 011791 Montoya Jimenez PA 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012-2490_ Phone: 602-256-6718 Fax: 602-256-6667 [email protected] Attorney for Plaintiff 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 E-mail: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Albert W. DeLeon, No. CIV04-0446 PHX PGR (JI) Plaintiff, JOINT PROPOSED PRETRIAL ORDER v. Dora B. Schriro, et. al., Defendants.

Pursuant to this Court's Order of September 15, 2006, the parties 1 respectfully submit the following Joint Proposed Pretrial Order to be considered at the Final Pretrial
Only the remaining Defendants in this action, namely Defendants Reyna, Paredez, Avalos, and Ramon, have participated in preparing this Joint Proposed Final Pretrial Order. All other Defendants have been dismissed by previous Orders of the Court.
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Document 231

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Conference in this matter. COUNSEL FOR THE PARTIES Plaintiff: Stephen G. Montoya, Esq. Montoya Jimenez PA 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012-2490_ Phone: 602-256-6718 Fax: 602-256-6667

Defendants: Susanna C. Pineda Assistant Attorney General 1275 West Washington Phoenix, Arizona 85007-2997 Phone: 602-542-7684 Fax: 602-542-7670 A. STATEMENT OF JURISDICTION

Plaintiff's claims raise both federal and state questions, and the Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 1367 and 42 U.S.C. § 1983. B. NATURE OF ACTION

Plaintiff was incarcerated at the Arizona Department of Corrections at all times material to this dispute. Plaintiff's lower extremities were permanently injured as a result of a 1973 automobile accident. As a result of the accident, Plaintiff was able to ambulate only with the assistance of a cane and orthopedic shoes. Plaintiff contends that on October 17, 2002, Defendants Reyna, Paredez, Avalos, and Ramon used excessive force against him in retaliation for his alleged participation in an alleged conspiracy to assault a female officer for which Plaintiff was ultimately found not to have participated. Plaintiff alleges that this retaliation took place when he was transferred from one housing unit to another at the 2
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Arizona State Prison Complex in Florence. Plaintiff alleges that Defendant Reyna, who readied him for transport, applied handcuffs onto his wrist too tightly. He alleges that later, upon his arrival at his new housing unit, Defendants Paredez, Avalos, and Ramon forced him to crawl up six flights of stairs to gain entry to his new housing assignment, although he was allegedly physically incapable of walking up the stairs based on his disability. C. CONTENTIONS OF THE PARTIES

Plaintiff's Contentions. a. Retaliation, Excessive Force, and Cruel and Unusual Punishment.

As a result of an automobile accident in 1973, Plaintiff Albert DeLeon has plastic inserts in his right ankle and his left leg is approximately one and a half inches shorter than his right leg. As a result of this condition, Mr. DeLeon must wear special orthopedic shoes and use a cane in order to walk. Mr. DeLeon was incarcerated at the Arizona Department of Corrections in Florence at all times material to this dispute. In approximately September of 2002, Mr. DeLeon was housed in unit consisting of approximately five other inmates at the minimum security facility known as "East Unit" at the Arizona Department of Corrections in Florence. While incarcerated at the East Unit, Mr. DeLeon overheard another inmate named "Tacho" planning to beat and rape an ADOC female staff member. Mr. DeLeon confidentially reported the threat to several members of the security staff at East Unit, but none of them took any action. Not wanting to have anything to do with the unaddressed threat, Mr. DeLeon requested a transfer out of 3
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East Unit.

Subsequent investigation of Mr. DeLeon's involvement with the threat

established that Mr. DeLeon was not involved with the threat in any way. On October 17, 2002 Defendant Reyna ordered Mr. DeLeon to be transported from East Unit to Cell Block Three of Central Unit. Moreover, Defendant Reyna also directed that Mr. DeLeon be forced to walk from East Unit to Central Unit without his orthopedic shoes and without the assistance of his cane with both of his hands hand-cuffed behind his back and his legs shackled. Defendant Reyna knew that Mr. DeLeon's physical condition did not allow him to walk from East Unit to Central Unit without suffering serious bodily injuries. After Mr. DeLeon arrived at East Unit, Defendants Ramon, Avalos and Paradez forced Mr. DeLeon to climb and crawl up six flights of stairs without his orthopedic shoes, without his cane, and with both hands hand-cuffed behind his back and his feet shackled. Mr. DeLeon passed out as a result of the stress caused by this abuse and ultimately suffered a heart attack on the same day, which ultimately required that he undergo open heart surgery. In order to establish a retaliation claim under 42 U.S.C. §1983, a plaintiff must establish that he was "retaliated against for exercising his constitutional rights and that the retaliatory action did not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813,815-16 (9th Cir. 1994). In this case, in its Order of September 13, 2006, the Court determined that Mr. DeLeon had 4
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a constitutional right to report the threat of rape of a woman ADOC staff member to prison authorities. Of course, punishing Mr. DeLeon for making the report does not advance any legitimate penological interest. In order for a prisoner to establish a claim for excessive force, the prisoner-plaintiff must prove that "officials used force with `a knowing willingness that [harm] occur.'" Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1978 (1994). The facts summarized above could persuade a reasonable finder-of-fact that the Defendants knowingly used force to injury Mr. DeLeon. Defendants' Contentions. b. Count I ­ Retaliation. Plaintiff fails to satisfy these

Defendants deny each and every allegation. requirements.

Plaintiff must establish a link between the exercise of the constitutional right and the allegedly retaliatory conduct. Moreover, the legitimate penological reasons which are proffered by prison officials, for conduct Plaintiff claims is retaliatory, are to be afforded "appropriate deference and flexibility." Pratt v. Rowland, 65 F.3d 802.807 (9th Cir. 1995). The Plaintiff merely makes conclusory allegations that are insufficient to make a claim. Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). Plaintiff's claim of retaliation against Defendants should fail. First, Plaintiff cannot show, nor is there any evidence to show that Defendants were aware of the reason for Plaintiff's transfer out of one housing unit and into another housing 5
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unit. Without knowledge about the reason why Plaintiff was being transferred, Defendants cannot be said to have retaliated. In addition to having no personal knowledge of the reason for Plaintiff's transfer, Defendant's actions towards Plaintiff were penologically justified. Plaintiff apparently alleges that he was subjected to cruel and unusual punishment by allegedly having his cuffs applied too tightly and by allegedly being forced to crawl up stairs when his physical limitations precluded him from doing so. In essence, Plaintiff needs to demonstrate that utilized excessive use of force, i.e., that they subjected him to (1) "intentional punishment", or physical torture which is so "totally without penological justification that it results in the gratuitous infliction of suffering"; and (2) that the alleged infliction of pain was serious enough to constitute a deprivation of basic necessities of life. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Where an inmate claims that prison officials used excessive force, he must prove a high degree of culpability. Whitley v. Albers, 475 U.S. 312, 320 (1986). To present an Eighth Amendment claim for excessive force, a prisoner must demonstrate that officials applied force "maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 320-21. Plaintiff must show that "officials used force with `a knowing willingness that [harm] occur.'" Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1978 (1994). Determining whether prison officials have acted maliciously and sadistically, the United States Supreme Court directs that the Court consider several factors: 6
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(1) the need for application of force, (2) the relationship between that need and the amount of force used, (3) the threat "reasonably perceived by the responsible officials," and (4) "any efforts made to temper the severity of a forceful response." Hudson v. McMillian, 503 U.S. 1, 7 (1992). The Court must also consider the "extent of injury suffered by an inmate." Id. In Whitley v. Albers, 475 U.S. 312 (1986), the Supreme Court stated that the essential issues is "whether force was applied in a good effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm." Id. at 320-21. It is Defendant Reyna's contention that, as an ADC Correctional Officer, he was obligated to ensure the safe and orderly operation of the prison facility so as not to jeopardize internal security. Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) ("`[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.'" [citations omitted]). As a matter of law, Defendant Reyna is constitutionally mandated to exercise discretion to administer the day-to-day affairs of the prison in such a way as to avoid jeopardizing prison security, and the safety, health and well-being of Plaintiff, the public staff and other inmates. Bell, 441 U.S. at 547. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817, 827 (1974); Procunier v. Martinez, 416 U.S. 396, 404-5 (1974); Cruz v. Beto, 405 U.S. 319, 321 (1972). He was responsible for insuring that Plaintiff, an inmate, was properly restrained prior to moving him from Florence-East Unit to Florence-Central

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Unit. In doing so, he insured that he appropriately applied handcuffs on Plaintiff's wrist. He used no more force than was necessary to properly apply the cuffs. Plaintiff's claim of excessive force is based solely upon the allegation that Defendant Reyna applied handcuffs on his wrist too tightly. The force at issue is the amount of force used to place an inmate in handcuffs prior to transport. This alleged force does not meet the standard for an Eighth Amendment claim of excessive force. There is no evidence that Plaintiff sustained any injury whatsoever as a result of having the cuffs applied, or that they were, in fact, applied tightly. Plaintiff cannot show that he was subjected to excessive use of force. Under these circumstances, the need for the force and the amount of force applied were appropriate. Defendant Reyna did not retaliate but merely performed his duty as a correctional officer by insuring that Plaintiff was properly restrained prior to transport. To the extent that Plaintiff alleges that Defendants Paredez, Avalos, and Ramon forced him to crawl up two flights of steps to his assigned housing in retaliation for his alleged threat against a female correctional officer, he has no facts to support his claim. First, neither of these Defendants had any knowledge about why Plaintiff was transferred to the unit where they worked. Having no knowledge, they cannot be said to have acted in retaliation. Additionally, like all transferred inmates, Plaintiff was in flip-flops and a jumper. The officers at the receiving unit were unaware of any physical limitations that

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Plaintiff may have had. He did not advise them, nor did he provide them with any documentation showing, that he was not to climb stairs. Additionally, on October 17, 2002, Defendant Ramon was assigned to the unit control room and had no personal contact with Plaintiff whether it was to escort him to his cell or remove his restraints. Having had absolutely no contact with Plaintiff, Defendant Ramon did not and could not have retaliated against Plaintiff. Defendant Paredez, a new officer on the unit at the time, had no contact with Plaintiff. He did not force Plaintiff to crawl up the flights of steps to his housing Should an inmate be unable to ascend the steps in a normal fashion,

assignment.

Defendant Paredez would follow ADC policy and advised his supervisor about the inmate's physical limitations and his inability to be housed in an upper-tier cell. Defendant Avalos, the unit sergeant, was unaware of both the reasons for Plaintiff's move, and any physical limitation that would have precluded his ascension to an upper-tier cell. Defendant Avalos has no duties regarding cell assignment and did not assign Plaintiff to an upper-tier cell. His duties were merely to escort the inmate to his new cell. Like all correctional officers, he was not privy to the Plaintiff's medical records and was unaware of any physical limitations Plaintiff may have had. The escorting officers were not advised of any physical limitations and Plaintiff ascended the stairs normally without assistance. He did not crawl up to his cell. Plaintiff cannot prove any of the elements of excessive use of force or cruel and unusual punishment. In fact, the evidence will show that Defendants 9
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acted appropriately when transferring Plaintiff to his housing unit at approximately 9 a.m., on October 17, 2002. Neither of these officers assigned Plaintiff to the cell in question, they were merely following policy in transporting an inmate from one housing location to another. Finally, Plaintiff can show no physical injury resulted, precluding suit under the PLRA. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must demonstrate that
the defendant deprived him of a right secured by the Constitution or laws of the United States and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mutual Ins. Co v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985 (1999). In addition, a § 1983 plaintiff must show injury and an affirmative link between the alleged injury and the conduct of the individual defendant. Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (affirmative link between defendant's act and plaintiff's injury required to sustain § 1983 action).

The Prison Litigation Reform Act ("PLRA") of 1996, effectively codified the Supreme Court's ruling in Farmer v. Brennan, 511 U.S. 825, 834 (1994), that nominal damages are not appropriate in an Eighth Amendment context and that the standard is actual physical injury. 42 U.S.C. § 1997e (e) ("No Federal civil action may be brought by

20 21 22 23 24 25 26 prior showing of physical injury, when amending the complaint would not cure 10
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a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."); see Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (dismissal of claim alleging emotional distress from transfer to higher custody prison is proper under 42 U.S.C. § 1997e(e) which requires

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deficiency). The injury alleged must be more than de minimus. Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ("we hold today that for all claims to which it applies, 42 U.S.C. § 1997e(e) requires a prior showing of physical injury that need not be significant but must be more than de minimis").
Although Plaintiff alleges that he suffered a heart attack as a result of the alleged retaliation by the Defendants, this Court has precluded his claim. Plaintiff is unable to show any connection between the alleged actions of the Defendants, and his heart attack that occurred some six to nine hours after being transported to his CB-3 housing assignment. Thus, he is left solely to claim that he suffered "emotional distress" during the alleged incident. As a result, Plaintiff will be unable to make the requisite "prior showing of physical injury" to support his claim for emotional-distress damages. 42 U.S.C. § 1997e(e); see also, Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002) (alleged back and leg pain from sitting and sleeping on the benches and floor, injuries from assault by other inmate and painful canker sore for which plaintiff got medical treatment were insufficient to meet PLRA physical injury standard). Any injury alleged to have resulted from any act or inaction taken after October 17, 2002, cannot be attributed to any of the remaining Defendants.

D.

STIPULATIONS AND UNCONTESTED FACTS 1. As a result of a 1973 automobile accident unrelated to this case, Mr. DeLeon has a plastic prosthetic right ankle and the bones of his left ankle are frozen and unable to move in any way. Both of Mr. DeLeon's legs were broken in

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multiple places in the 1973 automobile accident and his right leg is an inch and a half longer than his left leg; 2. As a result of these injuries, Mr. DeLeon use a cane and orthopedic shoes to walk; 3. ADOC authorized Mr. DeLeon to use a cane and orthopedic shoes based on his disability; 4. At the time of the alleged claims, Plaintiff was an inmate housed in the Arizona State Prison Complex-Florence East Unit who was transferred on October 17, 2002 to the Florence Central Unit pending an investigation of possible conspiracy to commit assault. 5. Plaintiff did not conspire to commit an assault. 6. Defendant Reyna was employed as Correctional Officers at the facility. 7. Defendant Avalos was a Correctional Sergeant at the Florence Central Unit. 8. Defendants Paredez and Ramon were correctional officers assigned to the Florence Central Unit. 9. Defendant Reyna applied handcuffs to Plaintiff's wrists prior to escorting him to the Florence-Central Unit.

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E.

CONTESTED ISSUES OF FACT AND LAW

Plaintiff. a. 1. Plaintiff's Contested Issues of Law. Whether Defendants retaliated against Plaintiff for reporting a threatened assault on a woman ADOC staff member. 2. 3. Whether Defendants used excessive force against Mr. DeLeon. Whether Defendants subjected Mr. DeLeon to cruel and unusual punishment. 4. Whether Mr. DeLeon is entitled to nominal, compensatory, and/or punitive damages against Defendants. 5. Whether Mr. DeLeon is entitled to an award of costs and attorney fees against Defendants. b. 1. Plaintiff's Contested Issues of Facts. On October 17, 2002, Defendant Reyna took away Mr. DeLeon's cane and orthopedic shoes and made him walk with his hands cuffed behind his back and his legs shackled from East Unit at the ADOC Prison Complex in Florence to a maximum security facility at Central Unit; 2. Although ADOC claims that it had a legitimate interest in confiscating Mr. DeLeon's cane and orthopedic shoes, ADOC has not explained why it could not have transported Mr. 13
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. c. 8. 7. 6. 5. 4. 3.

DeLeon in a wheelchair and why it forced him to walk from East Unit to Central Unit; Still without the assistance of his cane and orthopedic shoes, Defendants Ramon, Avalos, and Paradez forced Mr. DeLeon to drag himself up six flights of stairs at Central Unit with his hands cuffed behind his back and his legs shackled; Immediately after this episode, Mr. DeLeon started to have severe chest pains and was taken to Saint Mary's Hospital and diagnosed as having suffered a heart attack; ADOC never provided another cane to Mr. DeLeon until March 8, 2005, two years, four months, nineteen days after ADOC initially took away Mr. DeLeon's cane on October 17, 2002; ADOC never returned Mr. DeLeon's orthopedic shoes to him; Mr. DeLeon has been confined to a wheelchair since October 17, 2002. Mr. DeLeon has suffered serious personal injuries as a result of the misconduct of Defendants as summarized above.

Defendants' Contested Issues of Law. None 14

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d.

Defendants' Contested Issues of Facts. i. Plaintiff's handcuffs or shackles were not applied too tightly. ii. Plaintiff was not forced to crawl up flights of steps to his assigned housing unit. iii. Plaintiff climbed the stairs in a normal fashion and did not crawl as he alleges. iv. Defendants did not know the reason for Plaintiff move from the East Unit to the Central Unit. v. Defendant Ramon was working the control room and had no contact with Plaintiff on October 17, 2002.

LIST OF WITNESSES

Plaintiff's Witnesses. a. Expected to Testify.

Albert DeLeon c/o Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 Mr. DeLeon's anticipated trial testimony will reflect his amended complaints in this matter and his deposition. Defendant Ramon c/o Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General 15
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1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Mr. Ramon will testify regarding his knowledge of the matters alleged in Plaintiff's Complaint. Defendant Avalos c/o Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Mr. Avalos will testify regarding his knowledge of the matters alleged in Plaintiff's Complaint. Defendant Adrian Paradez c/o Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Mr. Paradez will testify regarding his knowledge of the matters alleged in Plaintiff's Complaint. Defendant Michael Reyna c/o Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Mr. Reyna will testify regarding his knowledge of the matters alleged in Plaintiff's Complaint.

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7.

Custodian of Records St. Mary's Hospital 1601 West St. Mary's Road Tucson, Arizona 85745 The Custodian of Records will authenticate any documents from St. Mary's Hospital. (Defendants object on the grounds that Plaintiff has not disclosed these records previously, they are hearsay, and said records are irrelevant to the question of whether Defendants engaged in retaliatory conduct.)

8.

Custodian of Records Tucson Heart Hospital 4888 North Central Stone Avenue Tucson, Arizona 85704 The Custodian of Records will authenticate any documents from Tucson Heart Hospital. (Defendants object on the grounds that Plaintiff has not disclosed these records previously, they are hearsay, and said records are irrelevant to the question of whether Defendants engaged in retaliatory conduct.)

9.

Custodian of Records Arizona Department of Corrections 1831 West Jefferson Street Phoenix, Arizona 85007 The Custodian of Records will authenticate any documents from Arizona Department of Corrections.

Defendants' Witnesses. a. Fact Witnesses Who Shall Be Called at Trial. Plaintiff Albert DeLeon. Defendant Avalos will testify regarding the movement of Plaintiff in the

facility as well as the procedures utilized for moving inmates. He will testify that he has no knowledge regarding Inmate DeLeon's allegations that he was forced to crawl up the 17
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stairs to reach his assigned cell. He will further testify that, pursuant to ADC policy, if an inmate is unable to be escorted to his assigned cell, a supervisor or count movement officer is notified to handle the situation. 3. Defendant Ramon will testify regarding his duties as a COII including his

assignment as a control room operator. When not assigned to the control room, his duties included escorting inmates to their assigned cells and removing their restraints. He did not assign DeLeon to any particular cell. Assigning inmates to specific cells within the cell block was not within the scope of his duties. He will testify that on the day that Inmate DeLeon was transferred to CB-3, he was assigned to the control room and did not have any physical contact with the inmate. He did not escort Inmate DeLeon to his cell and did not remove his restraints. He is also not a medical provider and did not have any medical training. Only ADC Health Care Providers have access to the medical records of inmates. In order for Correctional Officers to be advised of any medical conditions or special restrictions for an inmate, the inmate must provide a Special Needs Order ("SNO") from a Health Care Provider outlining his medical condition and specifying any special requirements or restrictions for the inmate. He does not recall Inmate DeLeon providing any SNOs requiring him to use a cane or orthopedic shoes and stating that he was not to climb any stairs. In fact, if an inmate has a medical issue that prevents him from accessing his assigned cell, the inmate must request that a supervisor be called to handle the issue. Further, pursuant to ADC policy, an inmate would not be allowed to crawl up the stairs. Rather, a supervisor would be called and informed of the situation so that it could be handled appropriately. (Plaintiff objects on grounds of relevance, hearsay, and lack of foundation.)

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4.

Defendant Paredez will testify that he had been correctional officer for only

a few months. He does not recall ever having any contact with DeLeon and never forced Inmate DeLeon to crawl up the stairs. He would have no reason to know why DeLeon was transferred to the unit. 5. Defendant Reyna will testify regarding his duties as a correctional officer

and the procedures utilized for moving an inmate from one housing unit to another, including the use and application of restraints upon Plaintiff. He will testify that he did not make any housing assignment, that the assignment is provided to him when directed to move an inmate. G. 1. 1. 2. 3. 4. 5. 6. 7. LIST OF EXHIBITS Plaintiff's Exhibits (Defendants' Objections to Plaintiff's Exhibits are Indicated in Bold. Undated hand-written memorandum written by Plaintiff regarding "Tacho." Arizona Department of Corrections Reclassification Score Sheet dated December 24, 2002. (Objection Relevance) Arizona Department of Corrections Health Needs Request regarding Albert DeLeon dated November 5, 2002. (Objection Relevance) Arizona Department of Corrections inmate letter from Albert DeLeon dated November 12, 2002. Arizona Department of Corrections Health Needs Request by Albert DeLeon dated November 22, 2002. (Objection Relevance) Arizona Department of Corrections inmate letter from Albert DeLeon dated November 23, 2002. (Objection Relevance) Arizona Department of Corrections inmate response letter dated November 25, 2002 regarding Albert DeLeon. (Objection Relevance) 19
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8. 9.

Arizona Department of Corrections inmate letter dated February 9, 2003 by Albert DeLeon. (Objection Relevance) Arizona Department of Corrections inmate response letter dated February 25, 2003 regarding Albert DeLeon. (Objection Relevance) Arizona Department of Corrections Health Needs Request by Albert DeLeon dated March 1, 2003. (Objection Relevance) Arizona Department of Corrections Health Needs Request by Albert DeLeon dated March 2, 2003. (Objection Relevance) Arizona Department of Corrections Special Needs Order regarding Albert DeLeon dated May 14, 2003. (Objection Relevance) Arizona Department of Corrections Special Health Needs Request by Albert DeLeon dated May 24, 2003. (Objection Relevance) Arizona Department of Corrections inmate letter dated July 21, 2005 by Albert DeLeon. (Objection Relevance) Arizona Department of Corrections inmate letter dated August 9, 2005 by Albert DeLeon. (Objection Relevance) Plaintiff's Complete Medical Records from St. Mary's Hospital. (Objection Relevance, failure to disclose) Plaintiff's complete Medical Records from the Arizona Department of Corrections. All documents submitted in support of Plaintiff's opposition to Defendant's Motion for Summary Judgment. All documents submitted in support of Defendant's Motion for Summary Judgment. Defendant's Responses to Plaintiff's Request for Production of Documents. Defendant's Answers to Plaintiff's Interrogatories. Plaintiff's Medical Records from the Tucson Heart Hospital. (Objection Relevance, failure to disclose) Plaintiff's complete inmate file from the Arizona Department of Corrections. (Objection Relevance)

3 4 5 11. 6 7 8 13. 9 10 11 15. 12 13 14 17. 15 16 17 17. 18 19 20 19. 21 20. 22 23 24 25 26 21. 18. 16. 16. 14. 12. 10.

2. Defendants' Exhibits (Plaintiff's Objections to Defendants' Exhibits are Indicated in Bold.) 20
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1.

Plaintiff's Second Amended Complaint. (Plaintiff objects on grounds of relevance, hearsay, and lack of foundation.) Plaintiff's Complete ADOC Medical Records.

2.

3. All evidence submitted in support of Defendants' Motion for Summary Judgment. (Plaintiff objects on grounds of relevance, hearsay, and lack of foundation.) 4. Any and all incident Reports ______. (Plaintiff objects on grounds of relevance, hearsay, and lack of foundation.) Plaintiff's Inmate Grievances. All Inmate Grievance Responses

7 8 5. 9 6. 10 H. 11 Plaintiff. 12 None. 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26

MOTIONS IN LIMINE

Given this Court's ruling on Plaintiff's allegation that he suffered a heart attack, and that he cannot introduce evidence of his subsequent heart attack, no other motions in limine are anticipated at this time given Plaintiff's failure to cooperate in the preparation of this Joint Proposed Pretrial Order. Given Plaintiff's allegations pertaining to subsequent medical treatment and accommodation by "ADC," Defendants will be filing a motion in limine seeking to preclude any such evidence as irrelevant and unduly prejudicial. Plaintiff has no evidence whatsoever that Defendants Reyna, Ramos, Avalos, or Paredes had any contact with Plaintiff following October 17, 2002 incident.

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I.

LIST OF ANY PENDING MOTIONS

Plaintiff has filed a motion to reopen discovery in this matter. Defendants will file motion in limine regarding subsequent medical treatment and accommodations by ADC. J. PROBABLE LENGTH OF TRIAL

5 The parties anticipate a four day trial. 6 K. 7 No trial date has been set. 8 L. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 22
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TRIAL DATE

INSTRUCTIONS

The parties shall seek to stipulate to jury instructions and any stipulated jury instructions will be filed no later than thirty (30) days before trial. Instructions which are not agreed upon shall include citation to authority which shall not exceed one page per instruction and shall be filed no later than thirty (30) days before trial. Objections to any non-agreed upon instruction shall include citation to authority which shall not exceed one page per instruction and may be file no later than thirty (30) days before trial. M. VOIR DIRE QUESTIONS

Any proposed voir dire questions shall be filed no later than thirty (30) days before trial.

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APPROVED AS TO FORM AND CONTENT:

. s/ Stephen G. Montoya___________ Montoya Jimenez, P.A. 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 Attorney for Plaintiff

s/ Susanna C. Pineda_____ Attorney for Defendants

THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED ON THIS ____ DAY OF ____________, 2006.

_____________________________ Paul G. Rosenblatt United States District Judge

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I hereby certify that on November 30, 2006, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Terry Goddard Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 I hereby certify that on November 30, 2006, I served the foregoing document by email and hand-delivery to the following: The Honorable Paul G. Rosenblatt United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118

s/ Stephen G. Montoya

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