Free Statement - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ARMANDO ROBERTO AROS III, Plaintiff, v. ROBINSON, et al., Defendants. Defendants1, by and through undersigned counsel, submit the following Satement of Facts in support of Defendants' Motion for Summary Judgment: 1. Plaintiff, Armando Roberto Aros, III, #95001, is an inmate currently in the No: CV04-306 PHX SRB (LOA) DEFENDANTS' STATEMENT OF FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

custody of the Arizona Department of Corrections ("ADC"). (Aros' Redacted Arizona Inmate Management System ["AIMS"] Report, available for this Court's in camera inspection.) Aros is serving a life sentence for first degree murder. (Id.) His sentence begin date was June 3, 1991 and he will be eligible for parole in 2017. (Id.) The ADC currently houses Aros in Arizona State Prison Complex ("ASPC") ­ Eyman/Rynning Unit in Florence. (Id.) 2.
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While in custody, Aros has had multiple placements. (Id.) Aros was in

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maximum custody in the Special Management Unit ("SMU") II in June of 2003, when he was transferred to maximum custody at ASPC-Central Unit, Cell Block ("CB") 7 on June 25, 2003. (Id.) He remained in CB-7 until April 19, 2004, when he was transferred to ASPC-Central Unit CB-1. (Id.) 3. On March 21, 2005, Aros filed his Third Amended Complaint pursuant to

42 U.S.C. § 1983. (Dkt. 15.) His Complaint stems from his housing at CB-7 which was from June 25, 2003, to April 19, 2004. (AIMS Report; Deposition of Aros at pp. 18-19, attached hereto as Exhibit 1.) The Complaint alleges that Defendants violated his

constitutional rights by subjecting him to conditions of confinement that violate the Eighth Amendment right to be free from cruel and unusual punishment (Count IV).2 (Dkt. 15.) Aros alleges various Eighth Amendment violations to include an inadequate cooling system, having to be fully clothed in an excessively hot environment, lack of a functional cell light, unusable mattress, lack of a pillow, small outdoor exercise enclosures, inability to obtain meaningful exercise, lack of a trash can, lack of cleaning supplies, inadequate opportunities to use cleaning supplies, noise levels at visitation, pigeon droppings in the outdoor exercise enclosures and lack of access to restroom facilities from the outdoor exercise enclosures. (Id.) Aros claims that he suffered sleep deprivation; denial of

meaningful exercise and exacerbation of his mental illness. (Id.) He requests injunctive and declaratory relief, as well as compensatory and punitive damages. (Id.) 4. David R. Rivas is employed by the ADC as the Deputy Warden of

Operations for the ASPC - Phoenix Complex. (¶ 1, Declaration of David R. Rivas, attached hereto as Exhibit 2.) He was the Associate Deputy Warden at the ASPC ­ Central Unit, Florence from September, 2002, to July, 2004. (Id. at ¶ 2.) The Central Unit is a maximum security prison and includes Cell Block ("CB") 1, CB-2, CB-3, CB-4, CB-5, and

On September 12, 2005, the Court's Screening Order dismissed Counts I, II and III for failure to state a claim. (Dkt. 19.) Case 2:04-cv-00306-SRB Document 51 Filed 06/22/2006 Page 2 of 10

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CB-7. (Id.) As the Associate Deputy Warden at the Central Unit, he was responsible for assisting the Deputy Warden with the administrative and operational functions of the Central Unit to include CB-7. (Id. at ¶ 4.) 5. CB-7 is a four tiered lock-down unit containing 152 cells. (Id. at ¶ 5.) The

building is rectangular in shape an oriented in a North-South direction. (Id.) All of the cells in CB-7 are located on the West wall of the building with a window on the back of each cell wall. (Id.) The North half of the building has 18 cells per tier (72 cells) and the South half of the building has 20 cells per tier (80 cells). (Id.) 6. Each cell in CB-7 is the same physical layout and appearance. (Id. at ¶ 6.)

The front of the cell does not contain bars like a traditional cell. (Id.) The cell door and the remainder of the front of the cell are solid metal. (Id.) The bottom of the door is made of three (3) foot by three (3) inch perforated metal. (Id.) The door also contains a halfinch thick glass window approximately 8-3/8" wide by 30-3/4" long, and a trap door that is used for such purposes as passing food and other items into the cell, as well as securing inmates before they are removed from the cell. (Id.) Directly across from the front of the cell, on the West wall, is a window approximately 29" by 44.5" by 20.5" by 24". (Id.) Some of the windows contain a tint. (Id.) The remaining two walls, ceiling, and floor are made of cement. (Id.) The cell is approximately 11'-4" long by 6'-7" wide, and 11-3/4" high and it contains a bed along the West wall. (Id. at ¶ 7.) Against the adjacent wall are a sink, a toilet, and a surface for writing. (Id.) Bolted above the sink is a mirror made of polished metal. (Id.) 7. Several inches above the mirror is the cell's sole lighting fixture. (Id. at ¶ 8.)

The switch to the lighting fixture is controlled by the inmate; it is an on and off switch and similar to a typical residence light switch. (Id.) A security light remains illuminated for 24 hours per day and is on at night from 10:00 p.m. to 6:00 a.m. (Id.) During the day, the cells receive light from the fixture, as well as the window. Aros states that upon his arrival

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at CB-7 the light bulb was out, however, a week or two after his arrival the light bulb was replaced in response to one of his grievances. (Exhibit 1, pp. 36-37.) He admits that he suffered no negative effects or problems with eyesight due to the lack of a light bulb during this period of time. (Id. at p. 37, lines 21-25.) 8. Inmates are allowed to purchase a lamp from the inmate store and can use

the lamp in their cells. (Exhibit 2 at ¶ 9.) The inmates control the use of the lamp in their cell. (Id.) Aros is not sure whether or not he had a lamp while housed in CB-7. (Exhibit

1 at p. 36, lines 2-6.) 9. There are three correctional officers assigned each shift to monitor CB-7.

(Exhibit 2 at ¶ 10.) In CB-7, an officer is required to do a security check on the inmates every 30 minutes by walking from one end of the building to the other end of the building on each tier and checking into the cells. (Id.) The officer is in full uniform and wears a protective vest and eye protective goggles during the security checks. (Id.) 10. In 2003, inmates housed in CB-7 were allowed three hours of outside

exercise time per week, taking place three days a week for a one hour duration.3 (Id. at ¶ 11.) The outdoor exercise area is 9 feet, 8 inches long by 9 feet, 8 inches wide, and 8 feet, 1 inch high. (Id.) The walls and ceiling of the enclosures are constructed of metal with diamond-shaped perforations measuring less than one inch in diameter, which allows fresh air and sunlight to enter the area. (Id.) 11. In 2003, there were approximately 900 inmates housed in the Central Unit.

(Id. at ¶ 12.) All of the CB units share 131 outdoor exercise enclosures which are located in front of CB-5 and CB-7, in front of the medical unit, and behind CB-2, CB-3 and CB-4. (Id.) Some of the enclosures are connected to each other, but each inmate uses the exercise area alone. (Id.)

Effective December 29, 2005, inmates in maximum custody status are afforded six (6) hours of outdoor exercise time per week. Case 2:04-cv-00306-SRB Document 51 Filed 06/22/2006 Page 4 of 10

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There are six (6) correctional officers assigned to the outdoor exercise area to

monitor the enclosures. (Id. at ¶ 13.) The officers conduct security searches, restrain inmates, and escort the inmates to and from the outside enclosures. (Id.) In addition, the officers monitor the inmate's activities, observe the inmates, and listen to the inmates while they are engaging in their outdoor exercise time. (Id.) 13. If an inmate requests to use the restroom while in the outdoor exercise area,

the officers assigned to the outside area, if practical, will escort the inmate in to use the restroom. (Id. at ¶ 14.) Whether or not the inmate is returned to the outdoor exercise area depends on what other activity is taking place during that same time, i.e. security considerations. (Id.) If the officer is able to escort the inmate back to the outdoor exercise area, the officer will do so. (Id.) A request to use the restroom by an inmate while in the exercise area is not a common request. (Id.) Aros claims that he suffered pain from not being able to use the restroom when he needed to. (Exhibit 1 at p. 69, lines 21-25.) 14. There is no exercise equipment in the outdoor enclosures and inmates are not

allowed to bring items into the area. (Exhibit 2 at ¶ 15.) Allowing inmates to have items with them would create security risks for the officers, who must transport inmates to and from the outdoor exercise area. (Id.) Inmates may do calisthenics, run, or walk while in the exercise pen and Aros admits there is ample room to engage in such activities. (Exhibit 1 at p. 62, lines 7-15; Exhibit 2 at ¶ 17.) Inmates may also engage in meaningful exercise while in their individual cells. (Exhibit 2 at ¶ 17.) They are not compelled to spend any time in the outdoor exercise area. (Id. at ¶ 18.) They may use all of their outdoor exercise time, some of it, or none of it. (Id.) If an inmate chooses not to use his allotted outdoor exercise time on a particular day, the schedule is adjusted for the other inmates. (Id.) It is not unusual for inmates to refuse their outdoor exercise time. (Id.) It is highly unlikely with the number of inmates (900) and the amount of outdoor exercise enclosures (131) and the time available, that an inmate would be in the outside enclosure

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longer than an hour in duration. (Id.) 15. The ADC provides a standard issue of clothing to each inmate to include

three pairs of pants, three pairs of socks and three shirts. (Exhibit 1 at p. 59, lines 17-21.) Inmates may wear their prison-issued clothing while in the outdoor exercise area. (Exhibit 2 at ¶ 16.) They may also purchase sweat clothing and athletic shorts from the inmate store that may be worn in the outdoor exercise area. (Id.) Inmates are permitted to purchase athletic shoes from the commissary, and can wear either their prison-issued sandals or canvas shoes. (Id.) When Aros goes out to exercise he typically takes off his shirt and does not complain about the heat because "when you go outside it's with the intent of exercising and sweating." (Exhibit 1 a p. 60, lines 2-6.) 16. Like many places in Arizona, all of Central Unit is exposed to pigeons and

therefore pigeon droppings. (Exhibit 2 at ¶ 19.) The outdoor exercise pens are cleaned on a weekly basis by inmates housed in CB-2. (Id.) The inmates hose down the individual pens and scrub the area with a brush. (Id.) Aros admits observing other inmates cleaning the outdoor exercise area with a hose, however, he is not sure how often the pens were cleaned. (Exhibit 1 at pp. 63-64.) 17. Central Unit also has plastic spikes in place to deter the pigeons from sitting

on the structure ledges. (Exhibit 2 at ¶ 19.) During 2003, cages and traps were constructed from chicken wire and placed on the roofs of some buildings to capture some of the pigeons. (Id.) ADC officials also purchased a Bird Chase Ultrasonic System from Bird B Gone to alleviate the presence of pigeons. (Id.) 18. During 2003 and 2004, the Facility Health Administrator monitored the

droppings in the outside exercise area and determined that while pigeon droppings were present in some of the outdoor exercise pens, there were not enough droppings to classify it as a health hazard. (Id. at ¶ 20.) Aros claims that the pigeon droppings affected him because he was not able to exercise and that it was "nasty." (Exhibit 1 at p. 66, lines 12-

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19.) 19. While in their cells, inmates are required to remain clothed. (Exhibit 2 at ¶

21.) In 2003, Director's Instruction ("DI") #140 was in effect which prohibited inmates from being in a state of undress unless they were preparing for bed or returning from the shower area. (Id.) Aros was hot in his cell and he complained that he did not like sitting in his cell sweating and that it was ridiculous to remain fully clothed. (Exhibit 1 at pp. 5960.) 20. CB-7, like all the CB units located in Central Unit is cooled through the use (Exhibit 2 at ¶ 22.) CB-7 and CB-5 are attached and the

of evaporative cooling.

heating/cooling system for both units is located in the basement. (Id.) The exhaust vents for the evaporative coolers are located on the interior ceiling of CB-7. (Id.) Each cell has a perforated supply vent where the cool air enters the cell and a return vent. (Id.) 21. The inmates cannot directly control the air flow through the system. (Id. at ¶

23.) The system is designed for air to flow freely from the terminal end into each individual cell. (Id.) There is no difference between the air delivered by the

heating/cooling system in CB-7 and the air delivered by the heating/cooling systems in other buildings in the Central Unit complex. (Id. at ¶ 24.) The temperature was taken several times in CB-7 during the summer months of 2003 and the highest temperatures were in the eighties. (Id.) Other than maintenance staff monitoring the temperature within the cell, the inmate cannot know what the temperature is within the cell or building. (Exhibit 1 at p. 49, lines 11-17.) The temperature is the same both inside the cell and outside the cell. (Id. at p. 50, lines 13-16.) Aros claims that he was deprived of sleep due to the heat in CB-7. (Id. at p. 53, lines 15-18.) 22. The heaters/coolers are maintained on a regular basis to ensure proper

cooling capability and also periodically repaired as required. (Exhibit 2 at ¶ 25.) The coolers receive a comprehensive yearly maintenance immediately prior to the hottest

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portion of the year, including dust removal and filter cleaning. (Id.) Additionally, the coolers are maintained on a weekly basis. (Id.) Most notably, the water leads are cleared of any debris or material which might affect distribution of the water into the coolers. (Id.) 23. All inmates housed in the Central Unit are given a standard Arizona

Correction Industry size mattress which are replaced on an as needed basis. (Id. at ¶ 26.) Laundry and bedding are picked up and delivered once a week. (Id.) Aros received a new mattress approximately four to six weeks after entering CB-7, after he complained that his mattress was too thin. (Exhibit 1 at p. 32, lines 7-12.) Aros admits that Defendants resolved the mattress issue. (Id. at p. 32, lines 3-6.) He alleges that the mattress

aggravated an old back injury, however he admits that he did not receive any injury from the mattress and that he did not request medical attention regarding his aggravated back condition. (Id. at p. 32-33.) 24. In 2003, all of Central Unit experienced a delay in obtaining new pillows for

inmates. (Exhibit 2 at ¶ 27.) Pillows were being purchased every quarter and distributed to various CB units. (Id.) ADC attempted to get Aros a pillow, but was not able to obtain one for him while he was housed in CB-7. (Exhibit 1 at p. 41, lines 13-16.) Aros did not receive a neck injury from sleeping without a pillow, however his neck was sore. (Id. at p. 40, lines 7-13.) He did not request medical attention for his sore neck but did take Ibuprofen he purchased from the inmate store which helped eliminate the soreness. (Id. at p. 40, lines 14-25.) 25. In 2003, trash cans were not permitted in individual cells, rather, trash bags

were issued or inmates used bags from the commissary to store their trash. (Exhibit 2 at ¶ 28.) The trash was collected on a daily basis by passing it through the trap in the door. (Id.) Aros claims that the lack of a trash can made it "not a very pleasant place to be" and exacerbated his depressed condition. (Exibit 1 at p. 43, lines 13-24.) 26. Inmates in CB-7 are responsible for cleaning their own cells. (Exhibit 2 at ¶

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29.) The Central Unit aggressively monitors the sanitation standards. (Id.) Inmates are provided with disinfectant spray to apply to their sinks and toilet, as well as a scrub brush. (Id.) Inmates are also provided a broom and/or mop to clean the floors. (Id.) Cleaning supplies are given to inmates at least three times a week by the day shift staff, however not all inmates clean their cells on a regular basis. (Id.) 27. Visitation at Central Unit takes place on Fridays, Saturdays, Sundays and

Mondays. (Id. at ¶ 30.) Each inmate can sign up for a weekly session from 9:00 a.m. to 12:00 p.m. or 1:00 p.m. to 4:00 p.m. and is allowed four visitors at a time. (Id.) Visitation takes place in one of sixteen (16) cubicles where the inmate sits on one side of a lexan-type glass window, and the visitor(s) on the other side of the window, and they communicate through the glass. (Id.) The cubicle is approximately three (3) feet by five (5) feet in dimension, and only one inmate is allowed in the cubicle at a time. (Id.) Aros had regular visitations with his family members while housed in CB-7. (Exhibit 1 at p. 73, lines 1-4.) He claims the noise level undermined the quality of the visit with his family. (Id. at p. 74, lines 17-21.) 28. Inmates housed in CB-7 have access to medical, dental and mental health

services by submitting a Health Needs Request. (Exhibit 2 at ¶ 31.) 29. While housed in CB-7 Aros was never refused medical treatment. (Exhibit 1

at p. 78, lines 2-5.) At five feet-ten inches tall, in 2003 he weighed 250 pounds. (Id. at p. 80, lines 1-4.) The only medical issues Aros requested treatment for while housed in CB7 was for trouble sleeping and for hemorrhoids. (Exhibit 1 at p. 77, lines 7-13.) 30. Aros suffers from depression and has been taking medication since 1999 for

this ailment. (Id. at p. 44, lines 1-12.) He gets physical symptoms from his depression to include bad headaches and fatigue. (Id. at pp. 44-45.) He does take aspirin for the headaches, but has not received medical attention or medication for headaches or migraines. (Id.) He suffered from these headaches before receiving medication for

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depression, however the depression medication alleviated the headaches. (Id.) RESPECTFULLY SUBMITTED this 22nd day of June, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants Original and one copy filed this 22nd day of June, 2006, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Armando R. Aros III #95001 ASPC ­ Eyman/Rynning Unit P.O. Box 3100 Florence, AZ 85232 Plaintiff Pro Se s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS05-0367/RM#___________
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