Free Statement - District Court of Arizona - Arizona

Amanda J. Vaught SB #023035
LAW OFFICES

1 2 3 4 5 6

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

(520)790-5828

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
7

FOR THE DISTRICT OF ARIZONA
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Gerald Byerly, Plaintiff, vs. Deputy Warden, et al., Defendants.

NO. CV 04-0323-PHX-FJM (GEE) PLAINTIFF'S SEPARATE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

Plaintiff Gerald Byerly hereby submits his Separate Statement of Facts in Opposition to Defendant's Motion for Summary Judgment. I. Plaintiff's Dispute with Defendant's Statement of Facts.

Plaintiff disputes several paragraphs of Defendant's statement of facts as follows: 1. Plaintiff agrees with DSOF ¶ 12 only to the extent Defendant states

Plaintiff requested protective segregation because he was threatened by a New Mexican Mafia member while housed at the Maricopa County Jail. Plaintiff further affirmatively states that he also requested protective segregation because he feared he would be a target for assault at the hands of all other inmates due to his sexual offense conviction. (See ADC022 attached at Exhibit A.) In his September 24th written request for protective segregation Plaintiff states, in part, "I need DI 67 for my

Case 2:04-cv-00323-FJM

Document 70

Filed 10/13/2005

Page 1 of 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

safty (sic) please I feel my life is in danger I do not want G.P. I feel all inmate (sic) are after me because of it, I need protective segregation." (Id.) (Emphasis added.) 2. Plaintiff disputes DSOF ¶ 19 to the extent Defendant states that Plaintiff

admits he was not afraid of the other inmates housed with him in D175. When Plaintiff was asked in his deposition, "So you didn't consider Mr. _____1 to be a threat to you", Plaintiff testified, "No, `cause _____ told me straight out when he got in [D175] he only had ... a month or two months and he's going home so he ain't going to ... do anything ... But I am going to let these other inmates know that you are a sex offender, and it's up to them if they do anything. I'm just going to let them know." (See deposition testimony of Gerald Byerly taken August 18, 2005, (hereinafter "Byerly") attached at Exhibit B at p. 41, ll. 4-25.) Plaintiff explained "the way it is is people that's in here ... usually just talks (sic) ... if they start talking, they either throw piss ... or feces." (Id. at p. 40, ll. 21-25, p. 41. ll. 1-3.) 3. Plaintiff disputes DSOF ¶ 17 alleging that once Plaintiff requested

protective segregation he was separated from the general population and housed with thirteen (13) other inmates who had requested protective segregation. Plaintiff affirmatively states he was not removed from the general population but was housed with inmates who were members of Security Threat Groups, to include the Aryan Brotherhood and the Mini Park Locos (See ADC004-008, 028 & 0292 attached at Exhibit C.), inmates who may have been on his Do Not House With list prior to

1

This inmate's name has been redacted because of safety concerns.

24 25 26 Concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit unredacted documents ADC004-008, 011-013, 023-026 & 028-029, which contain Security Threat Group references and information, under seal for this Court's in camera review. -2Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 2 of 26
2

1 2 3 4 5 6 7 8 9 10

September 25, 2003, (See ADC0163 attached at Exhibit C.), and with inmates who were placed into general population upon their transfer out of the Alhambra Reception Center. (See letter dated September 21, 2005, attached at Exhibit C.) 4. Plaintiff also disputes Defendant's assertion in DSOF ¶ 17 claiming the

thirteen inmates in D175 had requested protective segregation. Defendant has admitted that at least three inmates in D175 were placed into protective segregation at the request of Alhambra Staff, not at the request of the inmate. (See letter dated September 21, 2005, attached at Exhibit C.) II 5. The Arizona Department of Corrections' Protective Segregation Policy as set forth in Director's Instruction 67. The Arizona Department of Corrections' protective segregation policy is

11

set forth in Director's Instruction 67. (See Defendant's Report in Compliance with the
12

Court's September 20, 2004, Scheduling Order [Dkt. at 34.] at p. 2, ll. 10-11.)
13

6.
14 15

Protective segregation is a method that's employed in corrections to

place, in alternative to general population housing, a subset of the inmate population that cannot be placed in the general population. (See deposition testimony of Dora
16

Schriro (hereafter "Schriro"), taken August 16, 2005, attached at Exhibit D at p. 22, ll.
17

6-12.)
18

7.
19 20

An inmate's request for protective segregation is to be taken seriously.

(Schriro at p. 34, ll. 15-17.) 8.
21 22

The purpose of Director's Instruction 67 is to provide procedures for

identifying and safeguarding inmates with legitimate protection needs. (See Director's Instruction 67 (hereinafter "DI 67") attached at Exhibit 7 to Exhibit I at p.1.)
23

9.
24 25 26
3

Notwithstanding the fact there may be no verified information suggesting

Concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit unredacted document ADC016 under seal for this Court's in camera review. -3Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 3 of 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

a need or continued need for protection, staff shall never force an inmate into General Population ("GP"). (DI 67 at p.1.) 10. Paragraph 1.1 of Director's Instruction 67 entitled "Voluntary Placement,"

sets forth that any inmate may make a written or verbal request for protection. (DI 67 at 805.01 at 1.1.) 11. Any staff member who receives a written or verbal request from an inmate

for protection, or who becomes aware of a threat to an inmate shall immediately isolate the inmate in a safe, reasonably secure area and notify the Shift Commander. (805.01 at 1.1.1. and 1.2.) 12. Director's Instruction 67 also requires that a re-incarcerated inmate who

is received who formerly had been confined in a protective segregation location or, had been in approved protective segregation status pending transfer at the time of release or, was known to have been in alternate placement, or was pending protective segregation evaluation at the time of release shall be segregated from general population. (805.01 at 1.3.) 13. Plaintiff is a re-incarcerated inmate who had been housed in alternate

placement to protective segregation at the time of his release on January 9, 2003. (Byerly attached at Exhibit B at p. 12, ll. 14-20.) III 14. The Arizona Department of Corrections' Protective Segregation Policy at the Alhambra Reception Center. The Alhambra Reception Center is a prison unit within the jurisdiction and

21

control of the Arizona Department of Corrections. (See Schriro attached at Exhibit E,
22

at p. 8, ll.16-25, p. 9, ll. 1-2.)
23

15.
24 25

As Director of the Arizona Department of Corrections, Defendant is

responsible for establishing policies and procedures at the ADC's prison units with respect to inmate safety. (Schriro at p. 12, ll. 7-13.)
26 -4Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 4 of 26

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

16.

In 2003, Director's Instruction 67 was in effect at every single prison unit

in Arizona, to include the Alhambra Reception Center. (Schriro at p. 23, ll. 10-23.) 17. Director's Instruction 67 applies differently during the intake process than

it does to inmates who have already received an assignment to prisons. (Schriro at p. 23, ll. 13-16 & 24-25, p. 24, ll. 1.) 18. Director's Instruction 67 is not implemented by any post orders at the

Alhambra Reception Center. (See email dated August 30, 2005, attached at Exhibit F.) 19. Post orders or management orders at the Alhambra Reception Center

could not "override [DI 67]." (Schriro attached at Exhibit G at p. 34, ll. 5-7.) 20. No inmate is precluded from requesting protective segregation at the

Alhambra Reception Center. (Schriro at p. 26, ll. 21-25, p. 27, ll.1.) 21. If an inmate requests protective segregation at Alhambra they are to be

isolated immediately. (Schriro at p. 37, ll. 21-25.) 22. At Alhambra, `isolation' means separation from the general population

(Schriro at p. 24, ll. 5-19, p. 38, ll. 2-10, p. 59, ll. 1-15.) There are congregate cells that are identified to place inmates into who come into intake who request protective segregation. (Id. at p. 38, ll. 4-10.) 23. Director's Instruction 67 is largely about how inmates who are already

classified and assigned to one of the permanent housing at the prison complexes who seek protective segregation will be handled. (Schriro at p. 61, ll. 11-22.) 24. There is a specific understanding about how inmates newly admitted to

the department, not yet classified, not yet assigned, will be removed from general population pending the outcome of both the overall classification and assessment processes, plus the full implementation of DI 67. (Schriro at p. 61, ll. 11-22.) 25. The population of the inmates within the "congregate cell(s)" at the
-5Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 5 of 26

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

Alhambra Reception Center is constantly changing. (Schriro at p. 62, ll. 23-25.) All that the inmates in the congregate holding cell have in common is that they have requested protective segregation. (Id. at p. 66, ll. 24-25, p. 67, ll. 1-3.) 26. Not every inmate who requests protective segregation at Alhambra gets

housing in protective segregation upon placement in their permanent ADC housing unit. (Schriro at p. 37, ll. 9-21; See letter dated September 21, 2005, attached at Exhibit 4 to Exhibit I.) 27. If an inmate is a member of a prison gang it is likely that inmate's gang

affiliation is not yet established when the inmate is received at Alhambra. (Schriro attached at Exhibit G at p. 68, ll. 6-8.) 28. When the inmate's prison gang affiliation is discovered by corrections

staff, the inmate would not be placed into protective segregation with other protective segregation inmates who were not members of a prison gang. (Schriro at p. 68, ll. 1825, p. 69, ll. 1-4.) 29. Defendant's career in corrections administration thirty (30) years. (Schriro

at p. 47, ll. 10-17.) Protective segregation has been in place in systems where she has worked throughout her thirty (30) year career. (Id.) A. 30. Inmate Classification at the Alhambra Reception Center.

The purpose of the classification of the inmate during the intake process

is to ascertain the inmate's risk to the community, to themselves, and to others. (Schriro at p. 15, ll. 5-7.) 31. It is the inmate classification that drives the Arizona Department of

Corrections' determination as to the custody level assignment of the inmate and the placement of the inmate in a unit in one of the prison complexes. (Schriro at p. 15, ll. 7-9.) 32. In 2003 an inmate's classification score was comprised of a public risk
-6Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 6 of 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

score and it is this score that primarily drives the custody assignment. (Schriro at p. 15, ll. 16-18.) 33. An inmate's institutional risk score determines the prisoner's placement

once the custody level was determined. (Schriro. at p. 15, ll. 18.) 34. The crime that the inmate committed is relevant to the determination of

each inmate's public risk score and institutional risk score. (Schriro at p. 19, ll. 19-23.) 35. Typically a matter of matter of days would pass before an inmate would

be assigned his classification score. (Schriro at p. 39, ll. 1-24.) 36. It is unlikely that any of the inmates in the congregate cell at the Alhambra

Reception Center would have received their current classification score because the inmate has not yet completed the intake process and it would not have been established yet. (Schriro at p. 39, ll. 1-24.) B. 37. The Arizona Department of Corrections' Classification of Plaintiff.

On an Initial Classification Comments form (the "Classification Form")

dated September 25, 2003, CO III Matt Shafer documented a portion of Plaintiff's initial classification. (See Byerly00064-65 attached at Exhibit H.) 38. CO III Shafer indicated Plaintiff is a "Sex Offender (DI 141)" by checking

the "yes" box on the Classification Form. (Id. at Byerly00065.) 39. Shafer also noted that Plaintiff had protection issues and a "prior sex

offense." (Id.) 40. On his Initial Classification Score Sheet dated Plaintiff was given a final

public risk score of "4" and a institutional risk score of "4." (Id. at Byerly00064.) IV. 41. Plaintiff's Expert Witness's Opinion of Defendant's Protective Segregation Policy at the Alhambra Reception Center. Mr. Charles Montgomery is a nationally recognized independent expert

25

in the field of corrections and has been retained by Plaintiff to provide expert testimony
26 -7Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 7 of 26

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

on the issue of whether Defendant's DI 67 protective segregation policy at the Alhambra Reception Center is deliberately indifferent to inmates' safety, especially inmates who are convicted sex offenders. (See Affidavit of Charles Montgomery (hereinafter "Montgomery") attached at Exhibit I at ¶¶ 1,2.) 42. Mr. Montgomery has reviewed the deposition testimony of Mr. Byerly and

Defendant Schriro, certain pleadings and all documents exchanged in this matter. (Mongtomery at ¶¶ 3,4.) 43. Montgomery testified that Defendant, based upon her years of

experience, had to have known that prisoners convicted of child molestation are frequently the target of assault by other prisoners. (Montgomery at ¶¶ 5-6.) 44. It is Montgomery's opinion, to a high degree of probability and certainty,

Defendant Schriro knew that injury was substantially certain to occur to Plaintiff and all the other inmates who request protective segregation at the Alhambra Reception Center, as a direct consequence of her protective segregation policy at the Alhambra Reception Center. Any responsible prison official would know that Defendant's policy of placing unidentified and unclassified inmates together into a congregate cell would present an obvious substantial risk to inmates' safety. (Montgomery at ¶¶ 7-11.) 45. Director's Instruction 67 lays out the procedures for safeguarding and

protecting inmates and whenever an ADC staff member receives a written or verbal request from an inmate for protective segregation placement, Director's Instruction 67 requires that the inmate be immediately isolated in a safe, reasonably secure area. (Montgomery at ¶¶ 12-13.) 46. Director's Instruction 67 contains a special provision that applies to re-

incarcerated inmates, like Plaintiff, who were previously housed in alternative placement at the time of their release. These re-incarcerated inmates are to be afforded housing that is separate from the general population. These inmates are not
-8Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 8 of 26

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

to be housed with general population inmates. (Montgomery at ¶¶ 14-15.) 47. Defendant's testimony that at Alhambra, her policy is to place all inmates

who make a request for protective segregation into a congregate cell, prior their identification and classification is directly contrary to the obligation to ensure inmate safety as required under Director's Instruction 67. (Montgomery at ¶ 16.) 48. Defendant's testimony that, at Alhambra, her policy is to place all inmates

who request protective segregation into a congregate cell, and therefore, the inmates who have requested protective segregation placement are effectively removed from the general population is not accurate. (Montgomery at ¶ 17.) 49. At the initial inmate intake stage, corrections staff have not thoroughly

identified each and every inmate. (Montgomery at ¶ 18.) 50. The thorough identification of all inmates is essential and critical to the

determination of where to house an inmate to ensure their physical safety and provide them reasonable protection from violent attacks by other inmates. (Montgomery at ¶ 19.) 51. The importance of thoroughly screening and properly classifying an

inmate applies to all inmates, whether the inmate is ultimately determined to be a general population inmate or a protective segregation inmate. (Montgomery at ¶ 20.) 52. Based on Montgomery's experience, there are some inmates who make

a request for protective segregation at the initial stage of being received into custody out of a genuine and legitimate fear for their physical safety if they were placed in the general population. It is his experience that inmates with legitimate, genuine concerns for their physical safety typically include inmates convicted of a sexual offense, including attempted child molestation. (Montgomery at ¶ 21.) 53. Based upon Montgomery's experience, there is also another subset of

inmates who request placement into protective segregation at the initial stage of being
-9Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 9 of 26

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

received into custody based upon a desire to attack and harm those inmates who have sought protective segregation for legitimate reasons. Inmates who are members of the Aryan Brotherhood are clearly identified as members of a known Security Threat Group who present a high risk of harm to other inmates. Inmates who are members of the Mexican Mafia are clearly identified as members of a known Security Threat Group who present a high risk of harm to other inmates.(Montgomery at ¶ 22.) 54. Therefore, when an inmate requests to be placed into protective

segregation at the initial stage of being received into custody, the inmate's request for protective segregation takes on an even greater significance. (Montgomery at ¶ 23.) 55. At the initial intake stage corrections staff must determine if the inmate

seeking placement into protective segregation has a legitimate need to be separated from the general population, as opposed to a desire to harm the inmates who have a genuine need for protective segregation placement. While Defendant is required to ensure reasonable protection for all inmates at Alhambra, it is my expert opinion that Defendant is clearly obligated to meet a higher standard once an inmate is being considered for placement into protective segregation. (Montgomery at ¶ 24.) 56. It is Montgomery's expert opinion that when an unidentified and

unclassified inmate requests protective segregation placement at the Alhambra Reception Center, the inmate should be isolated from all other inmates until he has completed the intake process, has been thoroughly identified and properly classified. (Montgomery at ¶ 25.) 57. It is Montgomery's expert opinion that Defendant's policy at the Alhambra

Reception Center of placing all inmates who have requested protective segregation with other unidentified and unclassified inmates who have also requested protective segregation into the same congregate cell does not separate the protective segregation inmates from the general population. Defendant's approved protective
-10Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 10 of 26

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

segregation policy at Alhambra operates to impose prison conditions on inmates that present a substantial risk of serious harm, in a manner that is deliberately indifferent to inmate health and safety. (Montgomery at ¶ 26.) 58. Defendant's policy does not safeguard inmates who have a compelling

need for protection, like Plaintiff. Most simply, during the intake or admission phase at Alhambra, any expressed need for protection and the consequent known risks of harm to Plaintiff, and other inmates in his position, are ignored. (Montgomery at ¶¶ 27-28.) 59. Based on his experience, it is Montgomery's expert opinion that Plaintiff

was confined in conditions that placed him at a substantial risk of being seriously harmed in violation of Farmer v. Brennan when he was placed in D175 with thirteen (13) other unidentified and unclassified inmates. Defendant's policy is deliberately indifferent to inmates' who are convicted sex offenders. Furthermore, in light of reason and experience it is Montgomery's expert opinion that all of the inmates in D175 were confined in conditions that placed them at a substantial risk of sustaining serious injury in violation of Farmer v. Brennan. The above described conditions of confinement proffered by Defendant's policy present substantial risks that any responsible prison official, including Defendant, would know of, from the very fact that the risk is obvious. (Montgomery at ¶¶ 29-36.) 60. Alhambra staff failed to provide direct supervision over Plaintiff and the

other inmates in D175. (Montgomery at ¶¶ 37-40.) Defendant's failure to supervise congregate cell D175 does not provide inmates housed therein with reasonable protection from violence. (Montgomery at ¶ 41.) V. Plaintiff's Prior Incarceration at the ADC, his September 24, 2003, Re-receipt into Custody and the Assault he Sustained on September 25, 2003. Plaintiff is in the custody of the Arizona Department of Corrections. (See
-11Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 11 of 26

61.

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

relevant portion of Plaintiff's Adult Inmate Management System printout attached at Exhibit J.) Plaintiff was charged with allegations that he had sexual intercourse with a runaway who was a minor female. Plaintiff denied the allegations and stated that he believed the girl was seventeen years old. (See Byerly00495, 00496, 00499-00501 attached at Exhibit 1 to Exhibit J.) The case resulted in Plaintiff's plea to a lesser charge of attempted sexual molestation of a minor and he received a sentence which included incarceration in the Maricopa County Jail. (Id.) 62. During this initial imprisonment, Plaintiff was charged with promotion of

prison contraband. This time, he pled guilty to the charge of attempting to promote prison contraband, and in August 1999, was sentenced to a term of incarceration in the Arizona Department of Corrections ("ADC"). (See Byerly00490-00494 attached at Exhibit 2 to Exhibit J.) 63. Plaintiff was re-received at the Alhambra Reception Center on the

morning of September 24, 2003. (Byerly at Exhibit K at p. 24, ll. 1-7; Exhibit J at Exhibit 1.) He was returned to Department of Corrections' custody after being picked up by the Dallas, Texas police department and transferred to the Madison Street Jail in Phoenix, Arizona. (Byerly at p. 19, ll. 25, p. 20, ll. 1-2, 12-21, p. 23, ll. 5-9.) 64. Plaintiff was housed in alternative placement on and off throughout his

prior incarceration in the ADC. (Byerly at p.12, ll. 19-20.) After Plaintiff was assaulted on September 25, 2003, he was given alternative placement to protective segregation. (See ADC009-ADC013 attached at Exhibit L.) 65. During his prior incarceration, Plaintiff testified he was told by ADC

officials "[B]ecause you are a sex offender, you will be going to a sex offender yard ... at this time we don't feel that you gave enough information to give you protective segregation." (Byerly attached at Exhibit M at p. 12, ll. 20-25.) 66. Bate labeled document ADC002, dated September 25, 2003, is a portion
-12Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 12 of 26

1 2 3 4 5 6 7

of Plaintiff's protective segregation assessment forms documents Plaintiff's protective segregation history as follows: Previous PS Reviews: Yes. Date: 9/99 Date: 6/00 Date: 12/00 Date: 9/01 Date: 4/02 67. Outcome: Denied; Outcome: Alt[ernate] to PS; Outcome: Denied PS; Outcome: Alt[ernate] Place; Outcome: Denied. (See ADC002 attached at Exhibit N.)

On September 24, 2003, at the early stages of his intake process at

8

Alhambra, Plaintiff made a verbal request for placement into protective segregation
9

asserting, "due to I am a sex offender." (Byerly attached at Exhibit O at p. 26, ll. 19-25,
10

p. 27, ll. 6-17.)
11

68.
12 13

Plaintiff requested protective segregation because of his fear of an inmate

who was housed close to him at the Madison Street Jail, the inmate's knowledge of Plaintiff as a sex offender and the inmate's knowledge of other "people in the
14

Department of Corrections". (Byerly at p. 29, ll. 10-23.)
15

69.
16 17

Plaintiff also made a written request for protective segregation on

September 24, 2003. (Byerly at p. 27, ll. 24-25, p. 28, ll. 8-11, 16.) Plaintiff's written request states as follows:
18 19 20 21

I have people from the Mexican Mafi (sic) after me4 ____ because of my crim (sic). I am a sex offender and because of it he wants me daed (sic). I need DI-67 for my safty (sic). Please I feel my life is in danger. I do not want G.P. I feel all inmate (sic) are after me because if it, I need protective segregation. (See ADC022 attached at Exhibit A.) 70. After his request for protective segregation, correctional officials at

22

Alhambra placed Plaintiff into congregate holding cell, Dog ("D") 175, with thirteen (13)
23 24 25 26
4

This inmate's name has been redacted because of safety concerns. -13-

Case 2:04-cv-00323-FJM

Document 70

Filed 10/13/2005

Page 13 of 26

1 other inmates5. (Exhibit 3 to Exhibit I.) 2

71.

Plaintiff was placed into D175 at about 1:00 p.m. on September 24, 2003.

3 (Byerly attached at Exhibit P at p. 44, ll. 1-7.) Cell D175 was the first cell Plaintiff was 4 placed in at Alhambra. (Id. at ll. 11-13.) 5

72.

The following day, Plaintiff went to breakfast with his cell mates and then

6 returned to D175. (Byerly at p. 50, ll. 6-20.) While the other inmates went back to 7 sleep, Plaintiff finished writing his letter to his fiancé. (Id. at p.51, ll. 4-8.) 8

73.

Before lunch on September 25, 2003, a new inmate came into D175.

9 (Byerly at p. 50, ll. 9-11.) 10

74.

This new inmate announced to everyone in D175 "My name's J.D. ... I'm

11 a skinhead ... I run with the skinheads out there in Sunnyslope." (Byerly at p. 51, ll. 912 16.) 13

75.

Plaintiff testified that "when [J.D.] started talking," he went over to talk to

14 the Mexican inmate who had asked him a question earlier about parole. (Byerly at p. 15 51, ll. 21-25.) 16

76.

Then, an inmate Plaintiff can only describe as "the big Mexican" came over

17 to the other Mexican inmate Plaintiff was talking to and said something to him in 18 Spanish. (Byerly at p. 52, ll. 1-7, 13-16.) Then, "the big Mexican" inmate turned to 19 Plaintiff and said, "[m]an ... If we were on a yard, I would rape you for what you did." 20 (Id. at p. 52, ll. 16-18.) 21

77.

Plaintiff did not know or understand what the two Mexican inmates said

22 to each other because they spoke in Spanish and Plaintiff does not understand 23 Spanish. (Byerly at p. 52, ll. 19-25, p. 53, ll. 1-19.) 24 25 26 Concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit the names of the inmates Plaintiff was housed with on September 25, 2003, under seal for this Court's in camera review. -14Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 14 of 26
5

1

78.

Plaintiff never told the Mexican inmate that he had been talking to about

2 parol that he was a sex offender. (Byerly at p. 53, ll. 21-24.) Plaintiff did not tell any 3 inmate in D175 that he was a sex offender. (Id. at p. 54, ll. 9-13.) 4

79.

The only D175 inmate that knew Plaintiff was a sex offender was inmate

5 _____6. (Byerly at p. 54, ll. 14-16.) 6

80.

Inmate ____ knew Plaintiff's status as a sex offender from the last time

7 Plaintiff was in ADC's custody. (Byerly at p. 54, ll. 14-16.) 8

81.

Plaintiff did not tell any officer about inmate ______'s knowledge of his

9 crime because the only person inmate Gallego talked to was inmate _____7. (Byerly 10 at p. 42, ll. 1-6.) Plaintiff has never had a problem with inmate ______. (Id. at ll. 7-11.) 11

82.

Plaintiff also specifically testified that he did not see "the big Mexican"

12 inmate as a threat to him at that time because "the big Mexican's" threat to him was 13 " `If we were on a yard, an open yard, I would rape for what you did.' " (Emphasis 14 added.) (Byerly at p. 54, ll. 14-23.) 15

83.

Immediately after "the big Mexican" inmate threatened Plaintiff by stating

16 "If we were on a yard, an open yard, I would rape you for what you did," the big 17 Mexican inmate walked off and started talking to another inmate in D175. (Byerly at 18 p. 54, ll. 23-25, p. 55, ll. 4.) 19

84.

Sometime before the 4:00 p.m. head count, as he was walking around,

20 Plaintiff testified that he saw inmate ______ talking to the white Skinhead inmate J.D. 21 and the "big Mexican" inmate. (Byerly at p. 58, ll. 25, p. 59, ll. 1-5.) 22

85.

Thereafter, Plaintiff used the restroom, flushed the toilet and, as he was

23 leaving, the white Skinhead inmate, J.D., called Plaintiff a "bitch." (Byerly at p. 59, ll. 24 25 26
6 7

This inmate's name has been redacted because of safety concerns. This inmate's name has been redacted because of safety concerns. -15-

Case 2:04-cv-00323-FJM

Document 70

Filed 10/13/2005

Page 15 of 26

1 7-10.) Plaintiff ignored him and walked back towards his mattress on the floor. (Id. at 2 p. 59, ll. 12-16.) 3

86.

As Plaintiff leaned his back against the bunk bed and proceeded to scoot

4 down into his mattress on the floor, the inmate on the bottom bunk of the bunk bed hit 5 him on the side of his head, splitting his eyelid open causing blood to pour across his 6 face. (Byerly at p. 60, ll. 4-11, p. 61, ll. 8-11.) The blow to his head caused him to fall 7 down on his hands. (Id. at p. 60, ll. 13-16, p. 61, ll. 1-17.) 8

87.

After Plaintiff went down on his right side, he looked over and saw "the

9 big Mexican" inmate and the skinhead inmate J.D. running towards him and recalls that 10 one of them kicked him. (Byerly at p. 61, ll. 18-25, p. 62, ll. 5-16.) Due to the blood 11 streaming down his face, Plaintiff is not sure which of the two inmates, the skinhead 12 J.D. or "the big Mexican," had kicked him. (Id. at p. 61, ll. 21-22, p. 62, ll. 17-25.) 13

88.

Thereafter, Plaintiff was repeatedly hit in the head and kicked in the back.

14 (Byerly at p. 62, ll. 9-16.) Inmate skinhead inmate was standing over Plaintiff, hitting 15 him in his head, while "the big Mexican" was kicking him in his back, leaving welts and 16 foot marks. (Id. at p. 62, ll. 19-25.) Plaintiff's elbow smashed into the floor as he fell, 17 causing it to swell. (Id. at p. 63, ll. 1.) One of the assaulting inmates stepped on 18 Plaintiff's knee, dislocating it, and causing a sharp pain. (Id. at p. 63, ll. 2-7.) 19

89.

After Plaintiff experienced the sharp pain in his knee, he lost

20 consciousness. (Byerly at p. 63, ll. 5-13.) Plaintiff is not sure how long he was 21 unconscious, but he was unconscious during the ADC's 4:00 p.m. headcount. (Id. at 22 p. 63, ll. 11-19.) 23

90.

Plaintiff re-gained consciousness when the inmate who hit him first in the

24 assault woke him; one of the inmates who assaulted Plaintiff was standing above him, 25 shaking him. (Byerly at p. 64, ll.94-25, p. 65, ll. 4-10.) Right after he had awoke, an 26 inmate told Plaintiff, "They just got done with head count. That CO called your name, -16Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 16 of 26

1 told you to stand by to see the doctor." (Id. at p. 64, ll. 9-12.) The inmates also told 2 the freshly beaten Plaintiff, "You've got to clean yourself up." (Id. at p. 64, ll. 11-12, p. 3 66, ll. 15-17.) 4

91.

Plaintiff tried to "get his bearings" and was "trying to get his vision back"

5 from coming out of his unconscious state. (Byerly at p. 65, ll. 14-15, p. 66, ll. 15-16.) 6 He tried to use his blood covered sheet to wipe himself off. (Id. at p. 66, ll. 10-12, ll. 7 23-24.) He was struggling to get up on his own. (Id. at p. 66, ll. 25.) 8

92.

When the CO came into D175 and called twice for Plaintiff to go with her

9 to his medical appointment, Plaintiff finally pulled himself up by grabbing onto one of 10 the beds. (Byerly at p. 67, ll. 1-10.) Thereafter, unidentified D175 inmates grabbed 11 Plaintiff's bloody sheet and threw it in the trash. (Id. at p. 67, ll. 10-12.) 12

93.

Plaintiff was walked across the hall to see Family Nurse Practitioner

13 ("FNP") Chaney for an examination. (Byerly at p. 67, ll. 16-25; DSOF ¶ 23.) Plaintiff 14 testified that Dr. Chaney took one look at him and asked, "What happened?" (Id. at 15 p. 69, ll. 1-2.) Plaintiff broke down and told him, "They beat me." (Id. at p. 69, ll. 3-4.) 16

94.

Plaintiff did not tell Dr. Chaney what had happened until the door to the

17 examining room was closed. (Byerly at p. 70, ll. 17-20.) Plaintiff waited until the door 18 was shut because the other inmates were peering out of the window of cell D175, 19 which was directly across the hall, and had told Plaintiff to "shut your mouth." (Id. at 20 p. 70, ll. 19-20.) 21

95.

Dr. Chaney examined Plaintiff, and Plaintiff testified the doctor told him,

22 "you are going to the hospital. We are transporting you to the hospital because of your 23 injuries ... I believe you have busted bones in your face." (Byerly at p. 70, ll. 23-25, p. 24 71, 11- 1-3.) 25

96.

Dr. Chaney swabbed Plaintiff's facial lacerations that were dripping blood.

26 (Byerly at p. 72, ll. 6-10.) After Dr. Chaney completed writing the medical report and -17Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 17 of 26

1 assessment of what he thought Plaintiff's injuries were. (Id. at p. 72, ll. 21-23.) 2

97.

Dr. Chaney's report stated that Plaintiff's injuries included a laceration to

3 the left eye and brow area, swollen right jaw, multiple facial contusions and fractures, 4 and a tender sub orbit. (DSOF ¶ 25.) 5

98.

ADC officers helped Plaintiff remove his shirt because he could not

6 remove it himself. (Byerly at 72, ll. 23-25.) Plaintiff believes one of the officers who 7 helped him disrobe was CO David. (Id. at p. 73, ll. 1-7.) 8

99.

Corrections Officer David took color photos of Plaintiff's injuries. (Byerly

9 at p. 73, ll. 14; Color Photos of Plaintiff's injuries taken by CO David attached at Exhibit 10 Q.) David photographed Plaintiff's elbow, face, and the welts that formed on his back. 11 (Byerly at p. 74, ll. 1-6.) 12

100. The officers then got Plaintiff fresh clothes because his blood stained the

13 clothes he was wearing during the assault. (Byerly at p. 74, ll. 1-2.) 14

101. Plaintiff stayed in the medical examining room for about one (1) hour.

15 (Byerly at p. 74, ll. 16-18.) From the medical examining room Plaintiff went into the 16 ARC's intake area and into a small cell where the inmates go to the restroom. (Id. at 17 p. 75, ll. 8-13.) He was in this cell for about five (5) minutes. (Id. at 75, ll. 23-24.) 18

102. From the restroom cell, Plaintiff was escorted outside of the ARC by two

19 (2) officers, one in front of him and one behind him, both holding him up. (Byerly at p. 20 78, ll. 7-20.)

After getting into ADC's transport van, Plaintiff was transported to

21 Maricopa Medical Center. (Id. at p. 79, ll. 18-23.) 22

103. While at Maricopa Medical Center ("MMC"), Plaintiff was administered a

23 CT scan which revealed multiple facial fractures. (See Affidavit of Terri Espinoza, 24 hereinafter "Espinoza", at ¶ 3 attached at Exhibit N to Defendant's Statement of Facts 25 ("DSOF"); Byerly at p. 80, ll. 15-25, p. 81, ll. 1-13.) 26

104. After MMC completed the CT sans, they issued him a cervical collar for
-18Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 18 of 26

1 his neck injuries. (Expinoza at ¶ 3; Byerly at p. 82, ll. 19-25.) Plaintiff wore this cervical 2 collar for about a month. (entry date 1/5/04 in Exhibit 7 to Espinoza attached at Exhibit 3 N to DSOF.) 4

105. In a discussion with a medical staff member at MMC, Plaintiff asked how

5 bad his injuries were. (Byerly at p. 83, ll. 7-11.) Plaintiff testified that MMC medical 6 staff told Plaintiff, "[Y]ou have multiple fractures in ... your cheekbones. You have 7 multiple fractures on [the right] side [of your face], and on the left hand side [of your 8 face] you have minor fractures of [your] cheekbones." (Id. at p. 83, ll. 12-25.) 9

106. Plaintiff left MMC at about 1:00 a.m. on the morning of September 26,

10 2003, and was received again at Alhambra through the in-take process. (Byerly at p. 11 85, ll. 14-25, p. 86, ll. 1-25, p. 87, ll. 1-25.) 12

107. After being strip searched and placed in a "rest cell" in the Alhambra in-

13 take area, a sergeant escorted Plaintiff to the "original health unit" at the ARC. (Byerly 14 at p. 88, ll. 1-15.)

Plaintiff was thereafter evaluated by Dr. Tee. (Espinoza at ¶ 3

15 attached at Exhibit 4 to DSOF.) Dr. Tee documented that Plaintiff's CT scan revealed 16 multiple facial fractures and that he was issued a cervical collar. Plaintiff's sutures for 17 his facial lacerations were to be removed in 5-7 days. (Id.) 18

108. Plaintiff remained in the health unit for about thirty (30) minutes and then

19 was moved into Dog run, cell 174, the cell right next to D175. (Byerly at p. 89, ll. 1720 24.) The inmates in D175 saw Plaintiff as he walked by to be placed into D174. (Id. at 21 p. 90, ll. 4-5.) The inmates in D175 knew Plaintiff was housed, injured, right next door 22 to them because they saw him walk by and the air vent in the ceiling goes into the two 23 cells, D174 and D175. (Id. at 13-18.) 24

109. Plaintiff remained housed next door to cell D175 until 4:00 p.m. on

25 September 26, 2003. (Byerly at p. 90, ll. 18-21.) Plaintiff was then transferred from the 26 Alhambra Reception Center to the Arizona State Prison Complex ("ASPC") - Eyman, -19Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 19 of 26

1 Special Management Unit II ("SMU II"). (DSOF ¶ 31.) 2

110. Thirty (30) minutes after arriving at SMU II, Plaintiff was transferred to

3 ASPC-Florence Central Health Unit ("Central Unit"). (Byerly at p. 92, ll. 9-21.; DSOF 4 ¶¶ 32, 34.) Plaintiff testified that he was transferred out of SMU II, to the Central Unit, 5 because SMU II did not have the medical facilities necessary to properly treat his 6 severe injuries. (Byerly at p. 91, ll. 19-24, p. 92, ll. 1-8.) 7

111. Plaintiff was seen by Central Unit medical staff on September 26, 2003.

8 (DSOF ¶ 35.) Central Unit medical staff assessed Plaintiff as having been assaulted 9 at Alhambra and taken to MMC; that he had blood and redness in his inner right ear; 10 a left eyebrow laceration which had been glued and stitched; both eyes were swollen; 11 bruising to the left eye; an abrasion on the right cheek; blood in sputum; and tender 12 teeth. (Exhibit 3 to Espinoza attached at Exhibit N to DSOF.) 13

112. When Plaintiff was seen by Central Unit medical staff on September 27,

14 2003, at 0700 hours, medical staff recorded Plaintiff as stating he felt "crappy." (Exhibit 15 3 to Espinoza attached at Exhibit N to DSOF.) 16

113. When Plaintiff was seen again by Central Unit medical staff on September

17 27, 2003, at 1000 hours, medical staff recorded Plaintiff as having a very "redden" left 18 shoulder lateral corner, "blood still," bruising and swelling behind both ears, and that 19 Plaintiff had been expectorating bloody sputum. (Exhibit 3 to Espinoza attached at 20 Exhibit N to DSOF.) At the Central Unit medical staff's 1400 hour evaluation of Plaintiff 21 they recorded that Plaintiff experiences "lightheadedness" when he sits up. (Id.) 22

114. At the September 27th, 2200 hour evaluation of Plaintiff, Central Unit

23 medical staff reported Plaintiff as stating "[f]rom the waist up I just feel so weak & sore" 24 and further recorded that Plaintiff is still "expectating bloody sputum in waste can next 25 to bed." (Exhibit 3 to Espinoza attached at Exhibit N to DSOF.) 26

115. On October 1, 2003, at his 2130 hour evaluation by Central Unit Medical
-20Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 20 of 26

1 Staff, Plaintiff is recorded as stating his face was painful. (Exhibit 4 to Espinoza 2 attached at Exhibit N to DSOF.) 3

116. On October 2, 2003, a consult was written by Central Unit medical staff

4 for Plaintiff to receive a plastic surgery evaluation. (Exhibit 4 to Espinoza attached at 5 Exhibit N to DSOF.) At the 2330 hour evaluation on October 2, 2003, Plaintiff is 6 recorded as stating "I don't want to go back. Can't you tell them I have a concussion 7 or something?" (Exhibit 4 to Espinoza attached at Exhibit N to DSOF.) 8

117. Plaintiff was discharged from the Central Unit to SMU II on October 3,

9 2003. (Exhibit 3 to Espinoza attached at Exhibit N to DSOF.) 10

118. On December 30, 2003, Plaintiff was seen by Dr. Baird, the ADC Medical

11 Program Manager, complaining of post assault pain in his facial fractures. (Exhibit 7 12 to Espinoza attached at Exhibit N to DSOF.)

Dr. Baird recorded that Plaintiff

13 experiences numbness in his left cheek, and has an "obvious" fracture of the right 14 clavicle. (Id.) 15

119. Plaintiff testified that he continues to suffer from injuries caused from his

16 right inner ear bleeding and suffers from the loss of hearing in his right ear. (Byerly at 17 p. 93, ll. 1-25, p. 94, ll 1-7.) 18

120. As a direct result of the September 25th attack Plaintiff testified that he

19 continues to suffer from headaches, facial pain, back pain, lower back problems, 20 numbness in both of his hands, numbness in his lower body, to include both his legs, 21 his hip area, and his buttock area, throat injuries, to include injury to his voice box, and 22 shortness of breath. (Byerly at p. 123, ll. 11-25, p. 124, ll. 1-25, p.125, ll. 1-25, p. 126, 23 ll. 1-25, p. 127, ll. 1-14.) 24 25 26

VI.

ADC's Documentation of Plaintiff's Assault, Identification of the Assailant Inmates and the ADC's Placement of the Other Thirteen Inmates in the D175 Congregate Holding Cell. A. The documentation of Plaintiff's assault and identification of the
-21-

Case 2:04-cv-00323-FJM

Document 70

Filed 10/13/2005

Page 21 of 26

1 2

assailant inmates. 121. A significant incident report documenting the September 25th assault on

3 Plaintiff indicates there is no video tape recording of the assault. (See Significant 4 Incident Report SIR Number 03-3378 dated September 25, 2003, attached at Exhibit 5 10 to Exhibit I.) 6

122. During a post assault interview with CO III Eastman on September 26,

7 2003, Plaintiff stated he was assaulted by three (3) inmates in D175. (See ADC0248 026 and an un-bate labeled document attached at Exhibit R8; DSOF ¶ 73.) 9

123. In this interview, the three inmates who assaulted Plaintiff were identified.

10 (ADC023 attached at Exhibit S.) 11

124. In an Information Report dated October 6, 2003, Sergeant York recorded

12 the results of an interview that he conducted on October 5, 2003, with Inmate _____ 13 (hereinafter "Inmate"). The interview with Inmate was conducted after a CO II handed 14 Sergeant York a note from Inmate. (See ADC028-029 9 attached at Exhibit C; ADC030 15 attached at Exhibit T.) 16

125. In this interview, Sergeant York documents Inmate's eyewitness account

17 of Plaintiff's assault in cell D175 on September 25, 2003. Inmate stated that he 18 witnessed "a fight between inmate _______ and Byerly." (Exhibit C at ADC028) 19

126. Inmate stated that no staff witnessed the attack. (Exhibit C at ADC029.)

20 Inmate stated that approximately ten (10) to fifteen (15) minutes after the assault on 21 Plaintiff, ADC staff had come into the cell to take Plaintiff to a scheduled doctor's 22 23 24 25 26 As stated in footnote 1, concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit unredacted documents ADC023-026 under seal for this Court's in camera review. As stated in footnote 1, concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit unredacted documents ADC028-029 under seal for this Court's in camera review. -22Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 22 of 26
9 8

1 appointment and discovered that he had been severely beaten. (Id.) 2

127. Inmate told Sergeant York that "SSU" had conducted an investigation but

3 none of the other D175 inmates said anything about the incident. (Id.) 4

128. Inmate stated that "SSU" had pin-pointed another inmate because he had

5 "bolts." (Id.) Inmate told Sergeant York that one of the assailant inmates is a probate 6 for the "AB's" [Aryan Brotherhood]. (Id.) 7

129. Sergeant York documented that Plaintiff, inmate _____ and Inmate are all

8 white inmates. (Id.) 9

130. Inmate's handwritten note passed to an unidentified CO II, and then to

10 Sergeant York, states: 11 12 13 14 15

I was there in the room. Sometimes your concious (sic) gets to you[.] [I]t would not be right for me to withhold this information[.] _____ _____10 beat down Blerly (sic)[.] He told the room he was going to kill that Cho Mo [child molester][.] He [h]it Blerly (sic) 3 times in the face once he was down he stomped on is head 4 more times[.] He was yelling die you piece of shit while he stomped on his head[.] Please forward this to the proper people[.] (See Exhibit T at ADC030.) 131. On an Information Report dated September 25, 2003, CO III Curtis

16 reported, "I/M Byerly #141811 was RTC by County Jail and placed in DI 67 due to 17 Inmate request; he claims to have STG [Security Threat Group] issues." (See ADC027 18 attached at Exhibit U.) 19

132. In October 10, 2003, memorandum ("the Memorandum") addressed to

20 Plaintiff's protective segregation file, Deputy Warden Conrad Luna added three (3) 21 inmates to Plaintiff's Do Not House With ("DNHW") list11 as a result of their participation 22 23 24 25 26 As stated in footnote 1, concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit unredacted document ADC030 under seal for this Court's in camera review. Concurrently with his responsive memorandum Plaintiff has moved for an order requiring Defendant submit the names of inmates listed on Plaintiff's Do Not House With list on September 25, 2003, under seal for this Court's in camera review. -23Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 23 of 26
11 10

1 in the assault on Plaintiff. (See ADC016 attached at Exhibit 5 to Exhibit I.) 2

133. One of these inmates is identified as being a suspected member of the

3 Security Threat Group "MINI PARK LOCO's." (ADC016 at Exhibit 5 to Exhibit I; 4 ADC004 at Exhibit C.) 5

134. Section 1 of the Memorandum lists the inmates that "shall remain" on

6 Plaintiff's Do Not House With list. (ADC016 at Exhibit 5 to Exhibit I.) 7

135. On this list of Plaintiff's "Do Not House With inmates" is an inmate who

8 was placed into the D175 protective segregation cell with Plaintiff on September 25, 9 2003. (ADC016 at Exhibit 5 to Exhibit I; Exhibit 3 to Exhibit I.) 10

136. On information and belief, the inmate on Plaintiff's Do Not House With List

11 is a member of the Aryan Brotherhood. 12 13

B.

The non-protective segregation placement of the thirteen inmates held with Plaintiff in D175.

137. Of the thirteen (13) inmates who were placed into D175 with Plaintiff on
14

September 24 -25, 2003, only five (5) inmates were placed into protective segregation
15

upon his transfer out of Alhambra to his permanent ADC housing placement. (See
16

Letter dated September 21, 2005, attached at Exhibit 4 to Exhibit I.)
17

138. Two inmates who were housed with Plaintiff in D175 on September 25th
18

were placed into the general population when they were transferred out of Alhambra.
19

(Id.)
20

139. Three other inmates held in D175 were placed there by staff. (Id.)
21

VII.
22 23

The Arizona Department of Corrections' Administrative Grievance Process.

140. The ADC's inmate grievance system, a three tiered system, is governed

24 by ADC Department Order ("DO"): 802: Inmate Grievance System. (DSOF ¶ 84.) 25

141. The purpose of ADC's Inmate Grievance System is to provide inmates

26 "with timely, administrative remedies to complaints which might otherwise -24Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 24 of 26

1 unnecessarily burden the court." (See Department Order 802 (hereinafter "DO 802") 2 attached as Exhibit V at p. 1.) 3

142. It is the responsibility of the Deputy Director for Prison Operations to

4 ensure that DO 802 is readily available for use by all inmates, regardless of 5 classification, disciplinary, or administrative status. (DO 802 at p. 2.) DO 802, section 6 802.03, paragraph 1.3.1 provides that the Institution/Unit Grievance Coordinator shall 7 maintain a supply of all grievance system forms and the forms shall be made available 8 to inmates in all custody levels at all facilities. (DO 802 at § 802.03, ¶ 1.3.1.) 9

143. Prior to filing a formal administrative grievance an inmate is required to

10 attempt to resolve all issues informally by submitting the particular grievance to the 11 inmate's assigned CO III on an Inmate/Issue Response, Form 916-1P, within ten (10) 12 workdays of the action that caused the complaint. (DO 802 at § 802.03, ¶ 1.1.) 13

144. Failure to submit an Inmate Issue/Response, Form 916-1P to the inmate's

14 assigned CO III for informal resolution within ten (10) working days of the action that 15 caused the complaint results in the inmate's forfeiture of the opportunity to pursue a 16 formal grievance through the ADC's administrative grievance system. (DO 802 at 17 §802.08, ¶ 1.1.1.) 18

145. An inmate's physical access to all of the ADC's administrative grievance

19 forms is at all times controlled solely by ADC personnel. (DO 802 at § 802.04; DSOF 20 ¶ 97.) 21

146. On October 9, 2003, Plaintiff requested an informal grievance form from

22 his CO IV, Dwight Gaines while in the presence of CO Moses. (See Affidavit of Gerald 23 Byerly in Support of Plaintiff's Response in Opposition to Defendant's Unenumerated 24 12(B)(6) Motion to Dismiss (hereinafter "Byerly Affidavit") attached at Exhibit W at ¶¶ 25 7, 8.) 26

147. The subject of Plaintiff's informal grievance was going to be the brutal
-25Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 25 of 26

1 assault he sustained on September 25, 2003, at Alhambra. (Byerly Affidavit at ¶ 8.) 2

148. Plaintiff's request for the informal grievance forms on which to grieve his

3 September 25th assault, stemmed from CO IV Gains and CO Moses telling him that 4 the inmates who assaulted him on September 25th were going to be housed inside the 5 pod cluster that Plaintiff was then currently housed in. (Byerly attached at Exhibit X at 6 p.129, ll. 3-25, p.130, 11. 1-25, p.131, 11. 1-3.) 7

149. CO IV Gaines denied Plaintiff's request for an informal grievance form

8 telling Plaintiff that he was out of the applicable time frames for filing an informal 9 grievance and, since he was out of the time frames, he could not file a standard 10 administrative grievance. (Byerly at p. 129, ll. 24-25, p.130, ll. 1-25, p. 131, ll. 1-3; 11 Byerly Affidavit at ¶ 9.) 12 13 14 15 16 17 18 COPY of the foregoing 19 of October, 2005, to: 20 21 Assistant Attorney General 22 Phoenix, AZ 85007-2926

DATED this 13th day of October, 2005. WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

By s/ Amanda Vaught Attorney for Plaintiff delivered by NEF this 13th day

Kelley J. Morrissey

1275 West Washington Street Attorneys for Defendant

23 24 ___s/__________________

Liza Dausinger

25 26 -26Case 2:04-cv-00323-FJM Document 70 Filed 10/13/2005 Page 26 of 26