Free Motion for Summary Judgment - 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 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA GERALD BYERLY, Plaintiff, v. DEPUTY WARDEN, et al., Defendants. Defendant Schriro submits the following Statement of Facts in support of her Motion for Summary Judgment: I. Introduction 1. Plaintiff Byerly, a convicted felon, is serving a four year six month STATEMENT OF FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT No. CV 04-0323-PHX-FJM (GEE)

sentence for promoting prison contraband, and a ten year sentence for attempt to commit molestation of a child, in the custody of the Arizona Department of Corrections ("ADC"). (Plaintiff's AIMS Report is available for this Court's in camera review.) 2. On February 12, 2004, Plaintiff filed his Complaint under 42 U.S.C.

§ 1983 alleging that his Eighth Amendment rights were violated when he was assaulted by other inmates while incarcerated at the Alhambra Reception Center on September 25, 2003. (Dkt. 1 at 4.) He asserts that Director Schriro does not have a

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policy to protect inmates convicted of sex offenses. (Dkt. 1 at 5.) Instead she places all types of inmates together in the Alhambra Reception Center and "worry [sic] about it later." (Id.) Byerly seeks compensatory and punitive damages, as well as an order for the ADC to rewrite its policies regarding the safety of sex offenders at the Alhambra Reception Center. (Dkt. 1 at 7.) II. Plaintiff's Prior Incarceration and Return to ADC Custody 3. Plaintiff was first incarcerated in the ADC for his current offenses from

August 11, 1999 until January 9, 2003, when he was released to his term of community supervision. (See relevant portions of Plaintiff's deposition, hereinafter "Deposition," conducted on August 18, 2005, attached as Exhibit A at p. 7, lines 2225, p. 10, lines 1-24.) 4. Plaintiff was not placed in protective segregation during his prior

incarceration in the ADC from August, 1999 to January, 2003. (Deposition at p. 12, lines 14-17 attached as Exhibit B.) 5. Plaintiff violated the terms of his community supervised release by

leaving the State of Arizona and going to Texas. He was picked up by the Dallas County Police and taken to the Dallas County Jail. (Deposition at p. 20, lines 1-16 attached as Exhibit C.) 6. Plaintiff was then transferred from the Dallas County Jail to the Madison

Street Jail, in Phoenix, Arizona. (Exhibit C at lines 17-21.) 7. Plaintiff was transferred from the Madison Street Jail and received into

ADC's custody on September 24, 2003, at the Alhambra Reception Center. (See Affidavit of Rick Ward, hereinafter "Ward," attached as Exhibit A to Defendant's Report in Compliance With the Court's September 20, 2004 Scheduling Order filed March 17, 2005 at ¶ 4. A courtesy copy of this Affidavit is attached to the Judge's copy of this Motion; and Exhibit C at lines 22-24.)

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III.

Plaintiff's Receipt at the Alhambra Reception Center 8. Upon being received at the Alhambra Reception Center, Plaintiff was

taken off the bus and his handcuffs were removed. Plaintiff and the other inmates being received at the Alhambra Reception Center were placed in the intake holding cell. (Deposition at p. 24, lines 16-25 attached as Exhibit D.) 9. The inmates being received at the Alhambra Reception Center were then

taken out of the holding cell to change from their county jail attire to ADC's orange jumpsuits. (Exhibit D at lines 18-20.) 10. After changing their clothes, the inmates being received were brought to

an office where they were taken one-by-one to be fingerprinted and photographed. (Exhibit D at p. 24, lines 20-25; and Deposition at p. 25, lines 17-23, p. 26, lines 11-21 attached as Exhibit E.) 11. After being fingerprinted, Plaintiff met with a Correctional Officer

("CO") III, a Counselor, for intake questioning. (Exhibit E at p. 26, lines 18-21; and p. 27, lines 4-8 attached as Exhibit F.) 12. While meeting with the CO III, at approximately noon on September 24,

2003, Plaintiff requested voluntary placement in protective segregation ("PS") due to threats he allegedly received while housed at the Maricopa County Jail. (Ward at ¶ 5; Exhibit F at p. 27, lines 13-17.) Plaintiff claimed that he was threatened by a New Mexican Mafia member after it became known that the victim in his sex offense was a Mexican girl. (Ward at ¶ 5.) 13. ADC's PS policy is set forth in Director's Instruction ("DI") 67 effective

June 1, 2001. (See DI 67 [Department Order 805], attached as Exhibit 1 to Ward Affidavit.) The purpose of DI 67 is to provide procedures for identifying and

safeguarding inmates with legitimate protection needs. (Ward at ¶ 6.)

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14.

Upon entering into the ADC at the Alhambra Reception Center, inmates

are advised that PS is available to any inmate with a verifiable need. If an inmate feels the need to request PS, he/she can ask any staff member at any time and the process will begin. (Declaration of Herb Haley, hereinafter "Haley," attached as Exhibit G at ¶ 2.) 15. Plaintiff admits that DI 67 review was available to him at the Alhambra

Reception Center in 2003. (Deposition at p. 108, lines 24-25, p. 109, lines 5-7, 10-13 attached as Exhibit H.) 16. The "D" or "Dog" run of the Alhambra Unit is comprised of 23 inmate

cells: 17 four-man cells, 4 fourteen-man cells, and 2 three-man cells. (See Declaration of Joseph David, hereinafter "David," attached as Exhibit I at ¶ 2) 17. Once Plaintiff requested PS, he was placed in DI 67 PS review status,

separated from general population inmates, and housed in cell D175 with 13 other inmates who had requested PS. (Ward at ¶ 7.) 18. Plaintiff admits that upon requesting protective segregation he was

placed in a pending protective segregation cell. (Deposition at p. 44, lines 11-16 attached as Exhibit J.) 19. Plaintiff admits that he was not afraid of the other inmates housed in cell

D175 on September 24-25, 2003, even though one inmate knew he was a sex offender because they were housed near each other during a previous incarceration and another inmate threatened him. (Deposition at p. 40, lines 17-25, p. 41, lines 1-25, p. 42, lines 1-7, and p. 54, lines 1-22 attached as Exhibit K.) 20. Plaintiff did not consider the inmate who knew him or the inmate that

threatened him as threats to his safety. He did not complain to ADC staff about the other inmates in cell D175 on September 24-25, 2003. (Exhibit K at p. 40, lines 1925, p. 41, lines 1-9; p. 54, lines 17-22.)

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21.

On September 25, 2003, at approximately 4:00 p.m., as he was returning

to his mattress from using the toilet, Plaintiff claims that a white inmate who was standing on the side of the bunk by his mattress hit him. Plaintiff claims that after being struck, a big Mexican inmate and an inmate called "J.D." rushed towards him and began hitting and kicking him. (Deposition at p. 59, lines 7-25, p. 60, lines 1-25, p. 61, lines 1-25, and p. 62, lines 1-23 attached as Exhibit L.) 22. Plaintiff asserts that he lost consciousness and when he awoke he was

informed by the inmate who hit him first that the doctor wanted to see him. (Deposition at p. 63, lines 11-19, and p. 64, lines 9-22 attached as Exhibit M.) 23. On September 25, 2003, Plaintiff was taken by a CO to see Family

Nurse Practitioner ("FNP") Chaney for an intake examination. (Ward at ¶ 8.) 24. Upon entering the medical office, FNP Chaney's noticed that Plaintiff

had a laceration above his left eye and a swelling bruise on his right cheek. (Ward at ¶ 8.) Plaintiff stated that he believed a big Mexican inmate in cell Dog 175 was hitting him while he was sleeping. (Id.) 25. FNP Chaney noted that Plaintiff was assaulted in his cell. He noted that

Plaintiff complained of pain in the right jaw area and head; he had a cut over the left eye area; and his nose was broken. Plaintiff was assessed as: (1) being assaulted; laceration to left brow area; (3) right jaw swollen; (4) sub orbit tender; (5) facial contusion. The plan was to send Plaintiff to the emergency room for evaluation. (Declaration of Terri Espinoza, hereinafter "Espinoza," attached as Exhibit N at ¶ 2.) 26. After seeing FNP Chaney, Plaintiff was moved to cell Dog 172A to

await transport to the Maricopa Medical Center ("MMC"). (Ward at ¶ 8.) 27. Plaintiff was taken to the MMC on September 25, 2003 for evaluation

and treatment. (Ward at ¶ 8.)

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28.

Deputy Warden McConnell, Captain Panza, Lt. Freudenthal, Sergeant

Omaro, and CO II Barraza arrived at the Dog run. All the inmates in cell Dog 175 were stripped searched and checked for bruises and injuries on September 25, 2003. (Ward Affidavit ¶ 9, Exhibit 2.) One inmate had a swelling red bruise on his cheek. (Id.) 29. Plaintiff was returned to ADC from the MMC on September 26, 2003.

(Espinoza at ¶ 3.) 30. Dr. Tee reviewed Plaintiff's medical chart upon his return from the

MMC. She noted that while at the MMC a CT scan revealed multiple facial fractures. Plaintiff was issued a cervical collar for neck pain. Plaintiff was also prescribed Keflex. Plaintiff's sutures were to be removed in 5-7 days. (Espinoza at ¶ 3.) 31. Plaintiff was transferred from the Alhambra Reception Center to the

Arizona State Prison Complex ("ASPC")-Eyman, Special Management Unit II ("SMU II") on September 26, 2003. (Ward at ¶ 11.) 32. Plaintiff admits that he was sent to the SMU II because he was pending

DI 67 review and so his injuries could be treated. (Deposition at p. 91, lines 6-11 attached as Exhibit O.) 33. Plaintiff was evaluated at the SMU II by FNP Holliday. It was noted

that Plaintiff had no recollection of the assault. It was also noted that Plaintiff had a cervical collar to be worn for seven days. FNP Holliday received approval from Dr. Baird to move Plaintiff to the Central Unit. (Espinoza at ¶ 4.) 34. Approximately 30 minutes after arriving at the SMU II on September 26,

2003, Plaintiff was moved to the ASPC-Florence, Central Unit so ADC staff could attend to his medical needs. (Ward at ¶ 14; and Exhibit O at lines 12-16.)

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35.

Plaintiff was seen by medical staff at the Central Unit on September 26,

2003, at 2115 hours. An examination was conducted and Plaintiff's injuries were noted. Plaintiff stated that he is a cutter when he gets depressed. (Espinoza at ¶ 4.) 36. Plaintiff was seen by the Central Unit nursing staff on September 27,

2003, at 5:00 a.m., 5:30 a.m., 7:00 a.m., 10:00 a.m., 2:00 p.m., 6:00 p.m., and 10:00 p.m., and on September 28, 2003, at 2:00 a.m., 5:00 p.m., and 9:50 p.m. (Espinoza at ¶ 6) 37. Plaintiff was seen by Dr. Strubeck on September 29, 2003, who noted

that Plaintiff was assaulted on September 25, 2003 at Alhambra and was subsequently seen at MMC. Dr. Strubeck observed that neuro checks conducted did not reveal any sequelae. Plaintiff answered questions appropriately and deep tendon reflexes were normal. Plaintiff was alert and oriented x3 and did not appear to be in much distress. Plaintiff was assessed as status-post assault. Plaintiff was prescribed Tramadol 50 mg. tabs, three times a day, and Keflex 500 mg. tabs, one every four hours. (Espinoza at ¶ 7.) 38. Plaintiff was seen on the daily nurse rounds on September 29, 2003 at

4:00 p.m. Plaintiff had no complaints and stated that he wanted to leave. He was in no acute distress. (Espinoza at ¶ 8.) 39. On September 30, 2003, Plaintiff questioned if he was leaving the unit.

It was noted that Plaintiff was up and about on the unit. He was given discharge back to SMU II. (Espinoza at ¶ 9.) 40. On October 1, 2003, Plaintiff again questioned if he was leaving the unit.

He claimed he was bored. (Espinoza at ¶ 10.) 41. On October 2, 2003, Plaintiff was assessed with alteration in comfort

due to his injuries. (Espinoza at ¶ 11.) 42. Plaintiff was returned to the SMU II on October 3, 2003. (Ward at ¶ 14.)

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43.

Plaintiff admits that he was returned to the SMU II for his safety because

he was pending DI 67 review. (Deposition at p. 105, lines 13-25 attached as Exhibit P.) 44. On October 5, 2003, another inmate provided information as to who

assaulted Plaintiff and why. He claimed Plaintiff stated that he was a sex offender and the other inmate overheard their conversation. (Haley at ¶ 22.) 45. at ¶ 12.) 46. On October 20, 2003, medical staff noted Plaintiff's injuries. It was also Plaintiff's cervical collar was removed on October 14, 2003. (Espinoza

noted that x-rays of Plaintiff's neck and cervical spine were negative for fractures. (Espinoza at ¶ 13.) 47. Plaintiff was seen by Dr. Baird, the ADC Medical Program Manager, on

December 30, 2003. At that time Plaintiff was still complaining of pain in the left facial area, with numbness over the left check. Plaintiff was examined, assessed, and prescribed Salsolate 750 mg. twice daily. (Espinoza at ¶ 14.) 48. Plaintiff admits that the inmate from the County Jail from whom he was

seeking PS was never received or housed at the Alhambra Reception Center while he was housed there on September 24-25, 2003. attached as Exhibit Q.) IV. Defendant Schriro 49. Defendant Schriro was the ADC Acting Director from July 1, 2003, until (Deposition at p. 42, lines 12-15

May 26, 2004, when her appointment as Director was confirmed by the Senate. Since that time, she has been the ADC Director. (See Declaration of Dora Schriro,

hereinafter "Schriro," attached as Exhibit R at ¶ 1.) 50. Pursuant to A.R.S. § 41-1604B2(d), the Director of the ADC can

"[d]elegate to appropriate personnel the administrative functions, powers or duties that

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the director believes can be competently, efficiently and properly performed." The operation of the prisons is delegated to the Division Director of Offender Operations. The running of the Arizona State Prison Complex-Phoenix, Alhambra Reception Center is delegated to the Warden of that facility by the Division Director of Offender Operations. (Schriro at ¶ 2.) 51. Defendant Schriro was not aware on or before September 24-25, 2003,

of any problems in the Alhambra Unit pertaining to the housing of sex offenders at the Alhambra Unit. (Schriro at ¶ 3.) 52. With the exception of the incident involving Plaintiff on September 25,

2003, Defendant Schriro is not aware of any incidents involving sex offenders at the Alhambra Reception Center. (Schriro at ¶ 4.) 53. Plaintiff admits that he did not see Director Schriro at the Alhambra

Reception Center any time prior to the incident on September 25, 2005, or after it. (Deposition at p. 117, lines 17-20, attached as Exhibit S.) 54. Plaintiff admits that he did not have any contact with Director Schriro

while at the Alhambra Reception Center. (Exhibit S at lines 1-7.) V. PS Process 55. Any inmate may make a written or verbal request for protection. That

action shall trigger a documented review of the inmate's need for long-term PS status. (Haley at ¶ 3; and 805.01 at 1.1.) 56. 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. (Haley at ¶ 4; and 805.01 at 1.1.1.) 57. The Shift Commander shall safely move the inmate to a detention unit at

once and serve the inmate with a Form 2A, Assignment to Investigative Detention, and

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notify the on-site or on-call Duty Officer and complete the detention assignment checklist (804-1P) clearly documenting PS review in the placement status section. (Haley at ¶ 5; and 805.01 at 1.1.2.) 58. Once the inmate has been placed in detention, the Shift Commander

shall initiate a DI 67 Screening Form 805-8P and the Protective Segregation Continuation Sheet 805-3P. The information recorded on the 805-3P shall include all available specifics (what occurred to cause the request, the names of any inmate who may have assaulted or threatened the inmate, where any such act occurred, when these events occurred, and any other relevant information.) (Haley at ¶ 6; and 805.01 at 1.1.3.) 59. As part of this initial inquiry, the inmate shall be asked to provide

written supporting facts on Form 805-10P. If an inmate is unable to provide such facts when first questioned regarding the request, staff may obtain and record such information at a later time. However, the inability to identify a specific attacker, or threatening individual, or other potential threat source may not be the sole reason for excluding an inmate from further consideration, or approval, for PS status. (Haley at ¶ 7; and 805.01 at 1.1.3.1.) 60. Plaintiff filled out a form 805-10P on September 24, 2003 stating "I have

people from the Mexican Mafia after me _______1 because of my crim (sic) Im (sic) a sex offender an it (sic) 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 GP I feel all inmate are after me because of it, I need protective segregation." (Haley at ¶ 8.) 61. Further investigative findings shall be documented on an Information

Report (IR), ADC Form #40000029, appended to the DI 67 Screening Form 805-8P. (Haley at ¶ 9; and 805.01 at 1.1.3.2.)
1

Because of safety concerns, the inmate's name has been omitted.
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62.

The Shift Commander shall advise the designated CO IV as soon as

possible, no later than 1 workday from the time of the request. All documents relating to the request shall be forwarded to the Deputy Warden within 1 work day. (Haley at ¶ 10; and 805.01 at 1.1.4.) 63. CO III Curtis completed an Information Report to CO IV Polido, dated

September 25, 2003, documenting Plaintiff's request for PS. It appears that the report was incorrectly dated "September 25, 2003," instead of September 24, 2003, the date that Plaintiff, in fact, requested and was placed in DI 67 review status. (Haley at ¶ 11.) 64. On September 25, 2003, Plaintiff's PS file was forwarded to Deputy

Warden McConnell. (Ward at ¶ 10.) 65. The Deputy Warden, within 1 work day or upon receipt of prior PS file

shall complete an Inmate Assessment Form 805-7P; review all documentation, including the inmate's AIMS screens; meet with the inmate and/or obtain additional information, if deemed necessary. If additional information is received requiring CIU investigation, the file shall immediately be forwarded to the CO IV. The Deputy Warden shall also determine if the case requires a DI 67 PS review, and document the decision on the Screening Form and the 805-3P. (Haley at ¶ 12; and 805.01 at 1.1.5 ­ 1.1.5.4.1.) 66. If PS review is required, the Deputy Warden shall immediately forward

the file to the designated CO IV. (Haley at ¶ 13; and 805.01 at 1.1.5.4.1.) 67. If the Deputy Warden requires a PS review, he/she shall document on the

805.3P any specific issues to be addressed by the CO IV and the Criminal Investigation Unit ("CIU") and forward it to the CO IV. (Haley at ¶ 14; and 805.01 at 1.1.6.) 68. On September 25, 2003, Deputy Warden McConnell completed a

Protective Segregation Assessment form noting that a DI 67 Protective Segregation

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Review was required. She requested PS review due to possible STG issues. (Haley at ¶ 15.) 69. Within 3 work days of receipt of the file, the CO IV shall: initiate the

Protective Segregation Placement Review Request Form 805-1P; interview the inmate and begin preliminary processing as described in 805.02, subsection 1.2 of this instruction; and assemble all documentation and forward to CIU within 3 work days of receipt. (Haley at ¶ 16; and 805.01 at 1.1.7-1.1.7.3.) 70. With regard to Plaintiff's request for PS, the CO IV initiated the

Protective Segregation Placement Review Request Form 805-1P on September 25, 2003. (Haley at ¶ 17.) 71. The designated CO IV shall gather all relevant information on the case,

including any prior protection issues. (Haley at ¶ 18.) 72. at ¶ 19.) 73. During a follow-up interview with CO III Eastman on September 26, Plaintiff was interviewed by the CO III on September 25, 2003. (Haley

2003, Plaintiff stated that he was assaulted by three inmates. (Ward at ¶ 13.) He believed he was assaulted due to the circumstances surrounding his sex offense conviction. (Id.) 74. The PS file shall be forwarded, via the Deputy Warden, to CIU for

investigation. The CIU shall interview the inmate and prepare an investigative report, which shall be forwarded to the Deputy Warden within 10 work days of receipt by CIU. This report shall consist of a comprehensive summary of the case that includes, but is not limited to, information from the following sources: current 805-1P form, inmate institutional file, inmate PS file, all relevant Adult Management Information System (AIMS) data, information reports, results of inmate and staff interview(s),

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Security Threat Group ("STG") files, pre-sentence investigation report, and any other information deemed relevant to the request. (Haley at ¶ 20.) 75. Plaintiff's request for PS, with relevant documentation, was forwarded to

the CIU on October 6, 2003. Plaintiff was interviewed and a review was conducted of: the current form 805-1P Protective Segregation/Placement Review Request, the protective segregation file, "Do Not House With" issues, CIU files, Information Reports, STG files; relevant information from Plaintiff's institutional file, Plaintiff's AIMS and pre-sentence report, and other information relevant to the request. (Haley at ¶ 23.) 76. In accordance with 805.03 at 1.2, the Deputy Warden reviewed all the

relevant information on October 10, 2003, for his recommendation on Plaintiff's request for PS. The Deputy Warden did not recommend Plaintiff's placement in PS because the degree of risk was low because the issues presented by Plaintiff could be resolved with him being placed on a sex offender yard where none of the inmates on his DNHW list are placed. The PS file was then forwarded to the Warden for review and recommendation. (Haley at ¶ 24.) 77. In compliance with 805.03 at 1.3, the Warden reviewed the PS file and

recommended denial of Plaintiff's request for PS because the degree of risk was low moderate based on Plaintiff's ability to be placed on a sex offender yard. (Haley at ¶ 25.) 78. The Warden then forwarded the PS file to the Protective Segregation

Administrator Chairperson Rick Ward. (Haley at ¶ 26.) 79. On November 18, 2003, after reviewing the relevant documentation, Mr.

Ward determined that the degree of risk to Plaintiff was moderate based on the assault and that his issues could be resolved by additions to his Do Not House With ("DNHW") List. Mr. Ward recommended alternative placement of Plaintiff instead of

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PS. He based his determination on the following factors: (1) it was verified that Byerly was housed close to a debriefed Mexican Mafia member while in the county jail; (2) Plaintiff's offense met the criteria for placement in a sex offender unit; (3) Plaintiff did not want to be in general population but did not want to be in protective segregation; (4) the three inmates that assaulted him were added to his DNHW list; and (5) there were no verified security threat specific issues noted. (Ward at ¶ 15; Haley at ¶ 27.) 80. Plaintiff was approved for Alternative Protective Segregation Placement

on November 18, 2003. (Ward at ¶ 15; Haley at ¶ 28.) 81. Plaintiff was notified of the decision of the Deputy Warden/ Plaintiff waived his right to

Administrator/Protective Segregation Administrator.

appeal the final decision of his alternative PS placement. (Haley at ¶ 29.) 82. On December 10, 2003, Byerly was transferred to the ASPC-Eyman,

Rynning Unit, a sex offender unit, as an alternative to protective segregation. (Ward at ¶ 16; Haley at ¶ 30.) 83. Plaintiff admits that he was placed in the Rynning Unit as an alternative

to PS and because he is a sex offender. (Deposition at p. 106, lines 9-14 attached as Exhibit T.) VI. Inmate Grievance Process 84. The ADC's three-tiered administrative remedies procedure is governed

by ADC Department Order ("DO") 802 "Inmate Grievance System" (effective March 3, 2000). (See DO 802, attached as Exhibit 1 to Affidavit of Diana Focht, hereinafter "Focht" attached as Exhibit B to Defendant's Report in Compliance With The Court's September 20, 2004 Scheduling Order filed March 17, 2005. A courtesy copy of this Affidavit is attached to the Judge's copy of this Motion.) 85. DO 802 sets forth the procedures inmates must follow to complete the

prison administrative grievance process "property, staff, visitation, mail, food service,

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institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement" issues through the Director's level. DO 802.01 § 1.1.1. 86. 802.04 § 1.1. 87. Inmates are required to attempt to resolve all allowed grievance issues A copy of DO 802 is maintained in each prison unit's library. DO

informally before submitting a formal grievance. DO 802.01 § 1.1.3. Inmates must submit an inmate letter to his assigned CO III within ten workdays of the action that is the basis of the complaint. DO 802.08 § 1.1. 88. If the inmate's complaint cannot be resolved informally, the inmate may

then submit a formal inmate grievance to the Grievance Coordinator. The formal grievance must be submitted within ten calendar days from the date the inmate receives the Inmate Request/Response form from their CO III. DO 802.09 § 1.1.2. 89. If the inmate receives an unfavorable response from the Grievance

Coordinator, he may appeal to the Warden/Deputy Warden within ten calendar days of receipt of the grievance form. DO 802.09 § 1.3.1. 90. If the inmate then wishes to appeal the Warden's/Deputy Warden's

response, he may appeal to the Director via the Grievance Coordinator. Again, this appeal must be filed within ten calendar days after the inmate received his grievance form from the Warden/Deputy Warden. DO 802.09 § 1.4.1. 91. Within thirty calendar days of receipt of the grievance appeal, the

Director shall review the grievance and provide a written response to the inmate, both informing the inmate of the results of his grievance and specifying the reasons for that decision. DO 802.09 § 1.4.3.

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92.

The Director's response is final, thereby exhausting the available

administrative remedies through the ADC's Inmate Grievance System for standard grievances. DO 802.09 § 1.4.4. 93. If an inmate does not receive a response from an ADC official within the

time limits set in the Inmate Grievance System, he is allowed to proceed to the next review level. DO 802.07 § 1.2.4. 94. Plaintiff asserts that he submitted a request for administrative relief;

however, he was told his request was out of time frames. He contends that his request was not submitted in a timely manner because he did not have access to the necessary forms. (Dkt.1 at p. 5.) 95. A review of ADC records reveals that Plaintiff did not submit a request

for administrative relief, nor did he appeal such a request to the Director. (See Focht at ¶¶ 5-6; See Affidavit of Michael Hayes, hereinafter "Hayes", attached as Exhibit C to Defendant's Report in Compliance with the Court's September 20, 2004 Scheduling Order filed March 17, 2005, at ¶¶ 5-6; and Affidavit of Aurora Aguilar, hereinafter "Aguilar" attached as Exhibit D to Defendant's Report in Compliance with the Court's September 20, 2004 Scheduling Order filed March 17, 2005, at ¶¶ 4-6. A courtesy copy of these Affidavits is attached to the Judge's copy of this Motion.) 96. Plaintiff asserts that on October 9, 2003, he requested an informal

grievance form from CO IV Gaines, and that CO IV Gaines advised him he was out of time frames to grieve the assault he sustained on September 25, 2003. Plaintiff claims that he was not provided with an informal grievance form 916-1P as required by DO 802. (See Plaintiff's Response in Opposition to Defendant's Unenumerated Rule 12(B)(6) Motion to Dismiss [Dkt. 43] at 3.) 97. In the SMU II, inmate letter forms are passed out to the inmates by

security staff. The forms are also available from the CO IIIs. (See Declaration of

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Dwight Gaines, hereinafter "Gaines," attached as Exhibit A to Defendant's Reply to Motion to Dismiss at ¶ 8. A courtesy copy of this Affidavit is attached to the Judge's copy of this Motion.) 98. At no time, on or about October 9, 2003, did CO IV Gaines refuse to

provide Plaintiff with an inmate letter form so he could attempt to informally resolve a grievance issue. (Gaines at ¶ 9.) 99. At no time, on or about October 9, 2003, did CO IV Gaines advise

Plaintiff that he was out of time frames for filing an informal attempt to resolve a grievance issue, nor did he advise him that he could not file a standard grievance. (Gaines at ¶ 10.) 100. As a CO IV, it is not Officer Gaines' duty to advise an inmate that he is

out of time frames when filing an informal attempt to resolve his grievance issue(s), nor is it his duty to determine if an inmate may file an inmate grievance. (Gaines at ¶ 11.) 101. Inmate grievances are handled by the Grievance Coordinator, a CO III.

(Gaines at ¶ 12.) 102. A review of Plaintiff's institutional file reveals that he submitted inmate

letters to the Unit Chaplain on October 5th and 8th 2003, requesting a religious diet. (Affidavit of Cecelia Salas, hereinafter "Salas" attached as Exhibit B to Defendant's Reply to Motion to Dismiss, at ¶¶ 1-2. A courtesy copy of this Affidavit is attached to the Judge's copy of this Motion.) 103. A review of the inmate grievance logs for the Central Unit from

September 25, 2003 through October 25, 2003, and the Special Management Unit II from September 25, 2003 through October 25, 2003, reveals that the inmates assigned to those units during the time frames indicated had access to the inmate letter forms required to initiate the grievance process and did in fact have access to the grievance

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process. (See Declaration of Diana Focht attached as Exhibit U at ¶ 4, Exhibit 1; and Declaration of Christian Truog attached as Exhibit V at ¶ 4, Exhibit 1.) RESPECTFULLY SUBMITTED on this 1st day of September, 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 electronically filed this 1st day of September, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copyst the foregoing has been mailed of this 1 day of September, 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

922356

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