Free Motion for Leave to File - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA GERALD BYERLY, Plaintiff, v. DEPUTY WARDEN, et al., Defendants. DEFENDANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL STATEMENT OF FACTS No. CV 04-0323-PHX-FJM (GEE)

Defendant Schriro, by her counsel, moves this Court for leave to file a supplemental Statement of Facts in support of her Motion for Summary Judgment for the following reasons: In his Opposition to Defendant's Motion for Summary Judgment ("Response"), Plaintiff asserts that on September 24-25, 2003, he was housed in a cell with thirteen other inmates, which included members of Security Threat Groups ("STG"), i.e., the Aryan Brotherhood and the Mexican Mafia, as well as an inmate who was on his Do Not House With List. (Response at 3-4, 6-7, 14.) This information was relied upon by Plaintiff's expert, Charles Montgomery, in drafting his Affidavit submitted in support of Plaintiff's Response. (See Exhibit I attached to Plaintiff's Statement of Facts.) To support his assertions, Plaintiff provides numerous ADC redacted documents. (See Plaintiff's Statement of Facts.) In order to clarify these documents and to provide the
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Court with information regarding STGs validated by the ADC, the Defendant seeks to supplement her Statement of Facts with the Declaration of Herb Haley, the ADC Protective Segregation Administrator, which the Defendant was ordered to provide to Plaintiff's counsel in response to Plaintiff's "Motion for an Order Requiring Defendant File Certain Unredacted Documents Under Seal." Haley's Declaration, which has previously been provided to Plaintiff's counsel, includes information regarding ADC's STG policy, as well as information regarding the status of the inmates who were housed with Plaintiff at the Alhambra Reception Center on September 24-25, 2003. Additionally, in his Affidavit, Plaintiff's expert Charles Montgomery, reaches conclusions regarding the adequacy of supervision at Alhambra. (See Exhibit I attached to Plaintiff's Statement of Facts, ¶ 41.) However, Mr. Montgomery has not reviewed the correctional service logs, which were provided to Plaintiff during discovery. (See Exhibit I attached to Plaintiff's Statement of Facts, ¶ 4.) As this crucial evidence was omitted by Mr. Montgomery in reaching his conclusions, the Defendant seeks to supplement her Statement of Facts to include the Alhambra Correctional Service Logs for September 25, 2003, which clearly show that ADC staff provided Plaintiff with appropriate supervision. For the foregoing reasons, Defendant respectfully requests this Court grant her leave to supplement her Statement of Facts in support of her Motion for Summary Judgment. RESPECTFULLY SUBMITTED on this 20th day of December, 2005. TERRY GODDARD Attorney General s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL and One copy of the foregoing filed this 20th day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 20th day of December, 2005, to: Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/ C. Jordan Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952

939399

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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 Defendant having submitted her Motion For Leave To File Supplemental Statement of Facts, and good cause appearing; IT IS HEREBY ORDERED that Defendant's Supplemental Statement of Facts shall be filed. DATED this ____ day of ________, 2005. v. DEPUTY WARDEN, et al., Defendants. GERALD BYERLY, Plaintiff, ORDER IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA No. CV 04-0323-PHX-FJM (GEE)

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