Free Reply to Response to Motion - District Court of Arizona - Arizona

Amanda Vaught SB #023035
LAW OFFICES

1 2 3 4

WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.
Williams Center, Eighth Floor 5210 E. Williams Circle Tucson, AZ 85711

(520)790-5828

Attorneys for Plaintiff 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA Gerald Byerly, vs. Deputy Warden, et al., Plaintiff, NO. CV 04-0323-PHX-FJM (GEE) PLAINTIFF'S REPLY IN SUPPORT OF HIS MOTION FOR AN ORDER REQUIRING DEFENDANT TO FILE CERTAIN UNREDACTED DOCUMENTS UNDER SEAL

Defendants.

Plaintiff Gerald Byerly submits his Reply in Support of His Motion for an Order Requiring Defendant to File Certain Unredacted Documents Under Seal. Plaintiff's Motion requested an order requiring Defendant submit to the Court in unredacted form: (1) the names of each of the thirteen inmates housed with Plaintiff on September 25, 2003; (2) Plaintiff's Do Not House With list as it existed on September 25, 2003; and (3) unredacted bated labeled documents ADC004-008, ADC011-013, ADC016, ADC023-026 and ADC028-030. I. The Names of the Thirteen Inmates Plaintiff was Housed with on September 25, 2003. Plaintiff acknowledges that he was provided the names of the thirteen (13) inmates that he was housed with on September 25, 2003. However, Plaintiff was advised by Defendant's counsel that he was not to submit documents bearing the names of these inmates unredacted to the Court. Since Defendant refused to provide Plaintiff with certain other relevant and material documents in unredacted form (see

Case 2:04-cv-00323-FJM

Document 74

Filed 11/09/2005

Page 1 of 6

1 2 3 4 5 6

Section II, paragraph C, infra), Plaintiff's Motion requested that Defendant be ordered to submit the names of the inmates with whom Plaintiff was housed, simultaneously with other unredacted documents that were not provided to Plaintiff in an attempt to have all sealed documents submitted to the Court at the same time. II. The Security Threat Group Information Contained in Documents ADC004008, ADC011-013, ADC016, ADC023-026 and ADC028-030. For the reasons set forth below, Defendant should be required to submit

7
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

documents ADC004-008, ADC011-013, ADC016, ADC023-026 and ADC028-030
8

unredacted to the Court as it will allow the Court to make its own determination as to
9

the relevancy of their contents regarding the Security Threat Group issue.
10

A.
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 12

Selected portions of ADC004-008, ADC016 and ADC028-030 Establish that Some Inmates Housed with Plaintiff on September 25, 2003, were Identified as Members of a Security Threat Group.

Plaintiff has been provided with documents ADC004, ADC016 and ADC02813

030 in unredacted form. However, as stated in Section 1, Plaintiff's counsel was
14

advised to redact from these documents the names of the inmates housed with
15

Plaintiff on September 25, 2003. Plaintiff's Motion therefore requested that Defendant
16

submit these documents unredacted to the Court for its in camera review. A review
17

of ADC004, ADC006, ADC016 and ADC029 demonstrates the need for the Court to
18

require that Defendant submit documents ADC004-008, ADC016 and ADC028-030
19

in unredacted form.
20

Document ADC004 is the first page of a four page a Case Report (ADC00421

008), prepared by the Department of Corrections Criminal Investigation Bureau after
22

Plaintiff's assault. Paragraph 3.1 lists the names of three (3) inmates who were going
23

to be considered for placement on Plaintiff's Do Not House With list due to the
24

inmates' participation in the assault on Plaintiff. One of these inmates, whose name
25

was redacted at Defendant's counsel's request, is described as a "[s]uspected
26 -2Case 2:04-cv-00323-FJM Document 74 Filed 11/09/2005 Page 2 of 6

1 2 3 4 5 6 7
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

associate of the MINI PARK LOCO's." (See ADC004 at Exhibit C to PSOF.) (A courtesy copy of ADC004 is attached at Exhibit A.) On the third page of the Case Report (ADC006), at paragraph 7, section 7.2, an inmate housed with Plaintiff on September 25, 2003, was identified as having the Security Threat Group Code, "MI006 - Mini Park Loco's suspect." (See ADC006 at Exhibit C to PSOF.) (A courtesy copy of ADC006 is attached at Exhibit A.) As stated in paragraph C below, Plaintiff has not been provided with a completely unredacted version of ADC006. Document ADC016 is a memorandum addressed to Plaintiff's protective segregation file that was prepared after Plaintiff's assault on September 25, 2003. Section 2 of the memorandum indicates that one inmate who was housed with Plaintiff on September 25th is a member of "STG: MI006 S." The code "MI006" represents this inmate's affiliation with the Security Threat Group, the Mini Park Locos i.e., the Mexican Mafia. (See ADC016 and ADC006 attached at Exhibit C to PSOF.) (A courtesy copy of ADC016 is attached at Exhibit B.) Document ADC029, the second page of a three page inmate interview report (ADC028-030), memorializes a correctional officer's interview with an inmate who was housed in cell D175 with Plaintiff on September 25, 2003. In ADC029, the inmateinterviewee is recorded as stating that one of the inmates who participated in the assault on Plaintiff is a "probate for the `ABs'." Plaintiff asserts that the initials "AB," handwritten by the correctional officer-interviewer, is short hand for the Security Threat Group the Aryan Brotherhood, also known as the Skinheads prison gang. (See ADC029 at Exhibit C to PSOF.) (A courtesy copy of ADC029 is attached at Exhibit C.) Documents ADC004-008, ADC016 and ADC028-030 indicate that Plaintiff was housed in the same cell with inmates who were identified as members, or suspected members, of a Security Threat Group.
-3Case 2:04-cv-00323-FJM Document 74 Filed 11/09/2005 Page 3 of 6

8 9 10
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Ordering Defendant to submit these

1 2 3 4

documents unredacted will allow the Court to accurately make its own determination as to the relevancy of this information. B. Ordering Defendant to Submit Documents ADC023-026 Unredacted Will Aid the Court in Determining the Relevancy of their Contents.

Plaintiff has been provided with documents ADC023-026 in unredacted form.
5

Documents ADC023-026 memorialize Plaintiff's assault on September 25th, and
6

further identifies the inmates who assaulted Plaintiff. (See ADC023 attached at
7
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

Exhibit S to PSOF; ADC024-026 attached at Exhibit R to PSOF.) (Courtesy copies
8

of ADC023-026 are attached at Exhibit D.) Just like with all the other documents
9

referenced in this Reply, at the request of Defendant's counsel, Plaintiff redacted from
10

the exhibits the names of all the inmates that Plaintiff was housed with at the time of
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11

his assault. Although there does not appear to be any Security Threat Group
12

information contained in these documents, ordering Defendant to submit documents
13

ADC023-026 in unredacted form will allow the Court to accurately make its own
14

determination as to the relevancy of their contents.
15

C.
16 17

Defendant's Offer to Submit Affidavits Regarding All Security Threat Group Information Contained in Documents ADC005-008 and ADC011013 is Inadequate.

Defendant's offer to submit affidavits stating that none of the Security Threat
18

Group redactions made to documents ADC005-008 and ADC011-013 reference any
19

of the inmates housed with Plaintiff on September 25th, is inadequate. These
20

documents have not been provided to Plaintiff in unredacted form. As shown in
21

paragraph A above, an unredacted portion of ADC006 reveals that one inmate housed
22

with Plaintiff on September 25th was identified by the Department of Corrections as
23

being a member of a Security Threat Group, and ordering Defendant to submit
24

documents ADC005-008 and ADC011-013 unredacted to the Court will allow the
25

Court to make its own determination as to their contents.
26 -4Case 2:04-cv-00323-FJM Document 74 Filed 11/09/2005 Page 4 of 6

1 III. 2

Defendant's Offer to Submit Affidavits Regarding the Names on Plaintiff's Do Not House With is Inadequate. Plaintiff has not been provided with the names of the names of the inmates

3

listed on his Do Not House With list as of September 25, 2003. Defendant's offer to
4

submit affidavits, advising that none of the inmates housed with Plaintiff on September
5

25th were on his Do Not House With list is not adequate. On information and belief,
6

Plaintiff asserts that at least one inmate housed with Plaintiff on September 25, 2003,
7
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

was listed on his Do Not House With list as of that same date.
8

Document ADC016 was discussed in Section II paragraph A for its relevance
9

to the Security Threat Group issue. This memorandum is also relevant to this Do Not
10

House With issue. Section 1 of ADC016 lists the names of thirteen (13) inmates that
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11

"shall remain" on Plaintiff's do not house with list. (See ADC016 at Exhibit B.)
12

(Emphasis added.) When Defendant provided this document to Plaintiff, twelve
13

names had already been redacted, leaving only one inmate's name revealed.
14

Plaintiff's counsel examined the list of inmates Plaintiff was housed with on September
15

25, 2003, and determined that this inmate was housed with Plaintiff on September
16

25th. Plaintiff asserted this in his Opposition to Defendant's Motion for Summary
17

Judgment. (See PSOF at ¶¶134-136.) Hence, the documents already show that
18

Plaintiff was placed with an inmates on his Do Not House With list on September 25th.
19

Since Defendant has refused to provide Plaintiff with documents conclusively
20

setting forth the inmates who were listed on his Do Not House With list as of
21

September 25, 2003, Plaintiff requested that Defendant be ordered to file the
22

appropriate documents with the Court. Defendant should be ordered to submit to the
23

Court the names of all the inmates who were on Plaintiff's Do Not House With list as
24

of September 25, 2003, so the Court may determine the relevancy of this information.
25

IV.
26

Conclusion
-5-

Case 2:04-cv-00323-FJM

Document 74

Filed 11/09/2005

Page 5 of 6

1

For the foregoing reasons, Plaintiff requests an order requiring Defendant submit

2 to the Court in unredacted form: 1) the names of each of the thirteen inmates housed 3 with Plaintiff on September 25, 2003; (2) Plaintiff's Do Not House With list as it existed 4 on September 25, 2003; and (3) unredacted bated labeled documents ADC004-008, 5 ADC011-013, ADC016, ADC023-026 and ADC028-030. 6 7
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

DATED this 9th day of November, 2005. WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

8 9 10
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

By \s\ Amanda Vaught Attorneys for Plaintiff

11 12 COPY of the foregoing filed electronically

this 9th day of November, 2005, with: Clerk of the Court District of Arizona

13 14 United States District Court 15 401 West Washington

Phoenix, AZ 85003

16 17 this 9th day of November, 2005 to: 18 Kelley J. Morrissey

Copy of the foregoing has been sent electronically

19 1275 West Washington Street 20 Attorneys for Defendant

Assistant Attorney General Phoenix, AZ 85007-2926

21 _____\s\________________

Liza Dausinger

22 23 24 25 26 -6Case 2:04-cv-00323-FJM Document 74 Filed 11/09/2005 Page 6 of 6