Free Statement - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Susanna C. Pineda (011293) Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7660 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ALBERT DELEON, No: CV04-0446-PHX-PGR (MS) Plaintiff, v. DORA SCHRIRO, 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.

DEFENDANTS' STATEMENT OF FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Plaintiff Albert W. DeLeon ("Plaintiff"), ADC #032814, is an inmate in the custody of the Arizona Department of Corrections. [See redacted copy of

Plaintiff's Arizona Inmate Management System ["AIMS"] Report at 1 (attached hereto as Exhibit A). An unredacted copy of Plaintiff's AIMS Report is

available for the Court's in camera review.] Plaintiff is currently housed in
Arizona State Prison Complex ("ASPC")-Buckeye, Rast Unit. [Id. at 3.]

Dora Schriro, Ronolfo Macabuhay, Ruben Montano, Donald Sloan, Frederick Ramon, Andres Avalos, Adrian Paredez, Michael Reyna and Dr. Vinluan. NamedDefendant Jones has apparently not been served in this matter.

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2.

On March 3, 2003, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 ("§ 1983"). [Dkt. #1 (attached hereto as Exhibit B).]

3.

Plaintiff filed his first Motion to Amend and first Amended Complaint on September 16, 2004. [Dkt. #42 (attached hereto as Exhibit C).]

4.

Plaintiff filed his second Motion to Amend his Complaint on September 29, 2004. [Dkt. #53 (attached hereto as Exhibit D).]

5.

The Court's October 22, 2004, order granted Plaintiff's Motions to Amend his Complaint, which resulted in the termination of Defendants Bevins and Peterson and replaced the previously identified "Doe" Defendants with Defendants Reyna, Ramon, Avalos and Paredez. [Dkt. #77 (attached hereto as Exhibit E).]

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9. 8. 7. 6.

Plaintiff's Second Amended Complaint ("Complaint") alleges that Defendants violated his Eighth Amendment constitutional rights when they retaliated against him for reporting a planned assault by acting with deliberate and reckless indifference towards his safety causing an irreparable injury.2 [Dkt. #78 at 4-4C (attached hereto as Exhibit F).] Plaintiff further alleges that by denying him necessary assistance to compensate for his handicap, Defendants continue to violate his Eighth Amendment rights. [Id. at 5-5E.] Plaintiff asserts that because of Defendants' acts, he has suffered violations of his constitutional rights, cruel and unusual punishment, and has suffered permanent, irreparable physical injury. [Id. at 4-5E.]
Plaintiff seeks injunctive relief, actual damages, compensatory damages, punitive damages, "Trebele" (sic) damages and retaliation damages. [Id. at 7.]

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10.

Plaintiff suffered injuries to his legs in an automobile accident in the early 1970s prior to his incarceration. [Id. at 4.]

To support his allegations, Plaintiff attached copies of the grievance documents relating to his claims as exhibits to his Second Amended Complaint. To assist in referencing these attachments, Defendants have labeled them "Attachments A ­ F."

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11.

These injuries resulted in one of Plaintiff's legs being shorter than the other. [Id. at 5-5A.]

12.

Plaintiff was issued a cane and a pair of "medical tennis shoes" to assist him with walking prior to 2002. [Id. at 5.]

13.

The Special Needs Orders ("SNO") in effect on October 17, 2002, authorized Plaintiff to use a cane and medical tennis shoes, and not to lift more than ten pounds or climb ladders. [See Plaintiff's ADC Medical Records3 at 166 & 170 (attached hereto as Exhibit G).] The section on these SNOs prohibiting an inmate from climbing stairs is not circled. [Id.]

14.

In October of 2002, an inmate letter was found in Plaintiff's cell in ASPCFlorence, East Unit, which led ADC officials to suspect that Plaintiff was involved in a conspiracy to sexually assault a female correctional officer ("CO"). [See Deposition of Albert DeLeon ("DeLeon Deposition") at 6-8 (attached hereto as Exhibit H).] Plaintiff asserts that he was retaliated against by ADC staff because he came forward with information about an alleged assault on a female officer. [Id. at 6.] Plaintiff also asserts that he is being retaliated against to this day because he was investigated for the assault, even though he was exonerated completely. [Id. at 12.]

15.

On October 17, 2002, Plaintiff was transferred from East Unit to Central Unit pending ADC's investigation of the alleged conspiracy. [Exhibit A at 3.]

Inmates are transferred for various reasons, including pending criminal investigations, disciplinary investigations, and protective segregation. [See

Declaration of Michael Reyna ("Reyna Declaration") at ¶ 4 (attached hereto as Exhibit I).]
16.

Pursuant to ADC policy, inmates must wear standard issue ADC clothing when they are transferred from one unit to another. [See Reyna Declaration at ¶ 5,

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.
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21. 20. 19. 18. 17.

Attachment A .] Inmate property is collected and transferred separately from the inmates. [Id.] Plaintiff has a history of hiding contraband in his orthopedic shoes. [Exhibit G at 1.] In 2001, ADC medical providers confiscated Plaintiff's orthopedic shoes because he hid a stinger under the lift and insole of his left shoe. [Id. at 75.]
Plaintiff was handcuffed and walked from East Unit to Central Unit without his orthopedic shoes and cane. [Exhibit F at 4-4A; Reyna Declaration at ¶ 5,

Attachment A.] Upon arrival at Central Unit, Plaintiff climbed the stairs in the H run to his new housing assignment on the third tier. [Exhibit F at 4A.] If an inmate is unable to be escorted to his cell, a supervisor or count movement officer is notified to handle the situation. [See Declaration of Andres Avalos ("Avalos

Declaration") at ¶ 6 (attached hereto as Exhibit J)]. COII Paredez did not have any contact with Plaintiff when he was transferred to Central Unit from East Unit on October 17, 2002. [See Declaration of Adrian Paredez ("Paredez Declaration") at ¶ 4 (attached hereto as Exhibit K).] COII Ramon was assigned to the control room where he had no physical contact with inmates on the day that Plaintiff was transferred from East Unit to Central Unit. [Declaration of Frederick Ramon ("Ramon Declaration") at ¶ 5 (attached hereto as Exhibit L).] COII Ramon was not assigned to escort Plaintiff to his cell or to remove Plaintiff's restraints. [Id.] Assigning inmates to specific cells within the cell block is not within the scope of COII Ramon's duties. [Id. at ¶ 4.] Sergeant Avalos is also not authorized to assign inmates to specific cells within the cell block. [See Avalos Declaration at ¶ 4.] Later that day, Plaintiff suffered a heart attack, requiring transportation to St. Mary's Hospital where he underwent bypass surgery. [Exhibit F at 4B.] Plaintiff's

extensive medical records show that Plaintiff suffered from various ailments while incarcerated, but they do not mention that Plaintiff was at risk for a heart attack. [Exhibit G.]

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22.

Plaintiff was released from the hospital on October 29, 2002, and sent to ASPCTucson. [Exhibit A at 3; DeLeon Deposition at 29.]

23.

On November 7, 2002, Plaintiff was transferred to ASPC-Florence, Cell Block Six ("CB-6"). [Exhibit A at 3.] When Plaintiff arrived at CB-6, he was confined to a wheelchair. [Exhibit F at 5B-5D; DeLeon Deposition at 16 & 34.] Plaintiff sent an inmate letter to Defendant Montano requesting that he be given orthopedic shoes and a cane so that he could walk. [DeLeon Deposition at 34-36.] Defendant Montano responded and informed Plaintiff that the decision to issue medical devices was in the sound discretion of the medical providers and that Plaintiff should fill out another HNR and see a physician to address his request. [DeLeon Deposition at 37 & 42.]

24.

In March 2003, Plaintiff was transferred to ASPC-Lewis, Morey Unit. [Exhibit A at 3.]

25.

Plaintiff filed his grievance related to staff conduct on October 17, 2002, on June 7, 2003, almost eight months following the date of the incident. [Exhibit F,

Attachment C.] Plaintiff's grievance focuses upon his medical complaints and includes mention of the October 17, 2002, incident. [Id.] No staff names are mentioned in his grievance and his requested relief focuses upon the issuance of medical devices. [Id.] 26. In accordance with ADC policy, the grievance went to FHA Sloan. [See

Declaration of Aurora Aguilar ("Aguilar Declaration") at ¶ 3, Attachment A (attached hereto as Exhibit M).] FHA Sloan responded to Plaintiff's grievance. [Exhibit F, Attachment D.] 27. Plaintiff then appealed the decision to Director Schriro. [Exhibit F, Attachment E.] Again, no staff names are mentioned. [Id.] Director Schriro responded thereafter. [Id., Attachment F.] Her response indicates that an investigation into Plaintiff's medical allegations was conducted. [Id.] 28. While recovering, Plaintiff was not allowed to have his medical orthopedic shoes or cane. [Exhibit F at 4B; DeLeon Deposition at 22.] This decision was made by

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29.

Plaintiff's medical providers. [DeLeon Deposition at 43-44, 48.] Since his release from the hospital, Plaintiff's medical providers noted that Plaintiff experienced numbness and weakness in his left leg preventing him from walking. [See Exhibit G at 1, 23, 32-34, 37; DeLeon Deposition at 27.] Plaintiff further asserts that he was denied all recreation and that these conditions continued for several months. [Exhibit F at 4B.] Plaintiff asserts that FHA Sloan and Dr. Vinluan denied him issuance of new orthopedic shoes, use of a cane, and an ADA porter. [Exhibit F at 5A-5D; DeLeon Deposition at 16-17, 43-46.] FHA Sloan is not a medical provider and he does not make any decisions regarding what medical treatment is appropriate or inappropriate for individual inmates. [See Declaration of Donald Sloan ("Sloan Declaration") at ¶ 4 (attached hereto as Exhibit N).] When an inmate files a medical grievance, FHA Sloan investigates the claim to ensure that the inmate had access to a health care provider to address his medical needs and provide treatment in a timely manner. [Id. at ¶ 5.] Whether the denial of medical devices was appropriate is determined by a review committee that consists of trained clinicians who are authorized to provide medical care to inmates. [Id. at ¶ 6] 30. Plaintiff was issued a wheelchair in 2002 so that he could be mobile. [DeLeon Deposition at 34; Exhibit H at 17.] Plaintiff asserts that the wheelchair was broken because it lacked footrests. [Exhibit F at 5B-5C; DeLeon Deposition at 16.]

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32. 31.

Defendants Macabuhay and Vinluan ordered footrests. [DeLeon Deposition at 21; Exhibit H at 160 & 162.] Plaintiff's wheelchair was fixed in 2004. [DeLeon Deposition at 16.]

At the times relevant to Plaintiff's complaint, the ADC's three-tiered administrative remedies procedure was governed by ADC Department Order ("DO") 802. [See Aguilar Declaration at ¶ 3, Attachment A.] Department Order 802, Inmate Grievance System, provides that an inmate may use the grievance process for issues relating to "property, staff, visitation, mail,

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food service, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement." (Id.) An inmate's claim is considered exhausted when an appeal is submitted to the Director and a Response is returned. (Id.) RESPECTFULLY SUBMITTED this 14th day of December, 2005. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original e-filed this 14th day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to:

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#893776

Albert DeLeon, #32814 ASPC-Lewis Post Office Box 3300 Buckeye, AZ 85326-0303

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