Free Response to Motion - 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 RESPONSE TO PLAINTIFF'S MOTION FOR AN ORDER REQUIRING DEFENDANT TO FILE CERTAIN UNREDACTED DOCUMENTS UNDER SEAL No. CV 04-0323-PHX-FJM (GEE)

Defendant Schriro, by her counsel, responds to Plaintiff's "Motion for an Order Requiring Defendant File Certain Unredacted Documents Under Seal" as follows1: Plaintiff requests an Order requiring Defendant to file with the Court, under seal, the names of the thirteen inmates who were housed with Plaintiff at the Alhambra Reception Center on September 25, 2003; the names of inmates listed on Plaintiff's "Do Not House With" list as of September 25, 2003; and unredacted bates labeled documents ADC004-008, ADC011-013, ADC016, ADC023-026 and ADC028-030. The issues presented in Plaintiff's Motion are more properly raised by a Motion to Contrary to Plaintiff's assertion, it is disputed that Defendant, after Plaintiff requested placement into protective segregation on September 24, 2003, indiscriminately housed him in the same cell with thirteen other inmates who had neither been screened, classified, nor thoroughly identified by the Arizona Department of Corrections.
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Compel. Plaintiff, however, failed to file such a Motion. What Plaintiff in fact seeks is an evidentiary determination from this Court that is not necessary. Plaintiff argues that the Security Threat Group affiliation of the thirteen inmates housed with Plaintiff, as well as the identity of the inmates listed on Plaintiff's "Do Not House With" (hereinafter "DNHW") list are material to the sole issue of this case. Plaintiff further contends that Defendant has refused to provide documents and information that would aid the Plaintiff in determining whether any of the inmates he was housed with on September 25, 2003 were members of a Security Threat Group or were listed on Plaintiff's "DNHW" list. Undersigned counsel, however, has attempted to work with Plaintiff's counsel to provide Plaintiff with relevant documents, while remaining mindful of security and inmate safety issues. Undersigned counsel spoke with Plaintiff's counsel on September 20, 2005, in an attempt to amicably resolve the question of a possible submission of documents for the Court's in camera review. Undersigned counsel advised that in order for the Court to make the evidentiary determinations sought by Plaintiff, an explanation of the documents being submitted for in camera review is required. Accordingly, an in camera submission of the documents, without more, did not seem feasible to resolve the discovery issues. As an alternative, undersigned counsel proposed the submission of a sworn affidavit from the ADC Protective Segregation Administrator that would address the issues raised by Plaintiff. Specifically, the affidavit would acknowledge that none of the inmates housed in D175 with Plaintiff on September 24 or 25, 2003 were members of a security threat group, and that none of the thirteen inmates housed in D175 with Plaintiff on September 24 or 25, 2003 were already on Plaintiff's "DNHW" list. Plaintiff also had questions regarding when a particular inmate was added to Plaintiff's "DNHW" list. The proposed affidavit would also acknowledge the date the inmate in question was added to Plaintiff's "DNHW" list. Plaintiff declined to accept the Defendant's alternative proposal.

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Plaintiff seeks the production of the names of each of the 13 inmates Plaintiff was housed with on September 25, 2003. Plaintiff's counsel has already been provided with this information. The names were provided in response to Interrogatory No. 1, Defendant's Amended Response to Plaintiff's Fourth Non-Uniform Interrogatory, on August 29, 2005. Additionally, the names of the inmates are listed in the document labeled ADC025, which was provided to Plaintiff's counsel in un-redacted form as an attachment to Defendant's Response to Plaintiff's Amended Third Request for Production of Documents on August 11, 2005. Plaintiff also seeks the production of documentation which lists the inmates on Plaintiff's "DNHW" list on September 25, 2003. Plaintiff is trying to determine when a certain inmate was added to Plaintiff's "DNHW" list. Plaintiff's counsel has been advised in numerous telephone conversations, that an inmate's "DNHW" list is constantly changing and the ADC is unable to provide a list of the inmates that were on Plaintiff's "DNHW" list on September 25, 2003. Plaintiff was advised that documentation could be provided to the Court, for in camera review, that would reveal when Plaintiff was added to the inmate in question's "DNHW" list, thereby automatically placing the inmate in question on Plaintiff's "DNHW" list. As stated above, however, an affidavit could be submitted that none of the thirteen inmates housed with Plaintiff on September 25, 2003, were on Plaintiff's "DNHW" list. Plaintiff also seeks the production, for in camera review, of documents labeled ADC-004-008, ADC011-013, ADC016, ADC023-26 and ADC028-30. The documents labeled ADC004, ADC023-024, ADC025-026, and ADC028-030, have already been provided to Plaintiff in an un-redacted form. As stated above, the document labeled ADC025, which lists the names of the thirteen inmates housed with Plaintiff on September 25, 2003, was provided to Plaintiff's counsel on August 11, 2005. Additionally, the documents labeled ADC004, ADC023, ADC026, and

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ADC028-030, were provided to Plaintiff's counsel in un-redacted form as an attachment to Defendant's Response to Plaintiff's Amended Third Request for Production of Documents on August 11, 2005. The document labeled ADC024 was provided to Plaintiff's counsel as an attachment to a letter dated August 29, 2005 from undersigned counsel. In a letter dated September 7, 2005, Plaintiff was advised that in documents labeled ADC nos. 005-008, 011-013 all references to Security Threat Group ("STG") affiliation that could put an inmate at risk if known to the inmate population were redacted. (Exhibit A.) Release of this information could seriously jeopardize an inmate's safety and the safe, secure, and orderly operation of the prison. Accordingly, these documents have not been produced in an un-redacted form. Plaintiff was further advised that in an effort to address Plaintiff's concerns, none of the redactions made to these documents reference any of the inmates housed with the Plaintiff at the Alhambra Reception Center from September 23-25, 2003. Document ADC no. 016, sets forth the names of the inmates on Plaintiff Byerly's "DNHW" list on October 10, 2003. Because inmates are placed on another inmate's "DNHW" for various reasons, i.e., the inmates have a conflict with each other, one inmate snitched on the other inmate, the inmate is not always aware of who is on his "DNHW" list. The release of this information can place an inmate on the "DNHW" list at risk for an assault and even death. The Defendant would not provide the requested document in un-redacted form to Plaintiff since its release can jeopardize the safe and secure operation of the prison, as well as inmates' and staffs' well being. Plaintiff was advised that a review of pertinent ADC documents had been conducted, and it was determined that none of the inmates that were on Plaintiff's "DNHW" list on September 23, 2003, were housed with him at the Alhambra Reception Center on that date.

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Plaintiff argues that there is protective order in place; however, the protective order dated August 16, 2005, is limited to the names of the inmates who were housed with Plaintiff on September 24, 2003 and copies of ADC documents related to Plaintiff's September 24, 2003 request for protective segregation. (Exhibit B.) The affidavit proposed by Defendant would serve the purpose of providing Plaintiff with all the information he seeks, and would not potentially jeopardize any inmate's safety or jeopardize the safe, secure, and orderly operation of the prisons. As Defendant's alleged deliberate indifference to inmate safety is the focus of Plaintiff's lawsuit, inmate safety is a viable concern, and Defendant's need to be vigilant with regard to safety and security issues is clear. For the foregoing reasons, Defendant objects to the submission of unredacted documents for this Court's in camera review to the extent that the issues raised by the Plaintiff can be resolved by the submission of an Affidavit from the ADC Protective Segregation Administrator. RESPECTFULLY SUBMITTED on this 31st day of October, 2005. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL of the foregoing filed electronically this 31st day of October, 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 sent electronically this 31st day of October, 2005, to: _ Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952

931866

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