Free Motion for Summary Judgment - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General J. Randall Jue State Bar no. 014816 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ANDRE ALMOND DENNISON, Case No. CV 03-2373 PHX-SRB (JI) Plaintiff, v. CONRAD LUNA, et al., Defendants. Defendants,1 through undersigned counsel, submit the following Statement of Facts in support of their Motion for Summary Judgment: 1. Plaintiff Andre A. Dennison ("Dennison"), No. 143931, is an inmate STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

currently in the custody of the Arizona Department of Corrections ("ADC"). (A Redacted Copy of page 1 of Dennison's Adult Information Management System ("AIMS") report [Exhibit 1].) His current incarceration is the result of his conviction for dangerous crimes against children. (Id.)

1

Stewart, Schriro, Luna, Emore, Pinson, Hewitt, Nelson, Fridenmaker, Cooper, and

James.
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2.

On December 1, 2003, Dennison filed his Original Complaint pursuant to 42

U.S.C. § 1983 ("§ 1983"). [Dkt. no. 1.] Dennison's Complaint alleged that the Defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment and his First Amendment Rights. (Id. 4-5-B.) Dennison sued the Defendants in both their individual and official capacities. (Complaint at 2-2B.) Dennison is seeking a declaratory judgment against the Defendants, injunctive relief, compensatory damages, and punitive damages. (Id. at 7-7-C.) 3. In Count I of his Complaint, Dennison alleges that he notified Defendants

Luna and Stewart on several occasions regarding the misconduct and abuse he allegedly received from ADC officers. (Complaint at 4.) He claims that the Defendants were deliberately indifferent in their duty to protect him. (Id.) In Count II, Dennison claims that on May 1, 2003, Defendant James assaulted him in retaliation for a lawsuit Dennison filed against Correctional Officer Jennifer Thelen. (Complaint at 5.) He further alleges that Defendants Cooper, Fridenmaker, Emore, Nelson, Pinson, and Hewitt also retaliated against him by filing false reports and filing a fraudulent reclassification hearing. (Complaint at 5-5B.) Dennison claims that the retaliation prevented him from exercising his First Amendment rights. (Complaint at 5.) Dennison claims he suffered cuts to his arms and hand, punitive segregation, and emotional distress. (Id.) 4. In Count III of his Complaint, Dennison claims he was denied the right to

Due Process on June 5, 2003. (Complaint at 6.) The Court dismissed Count III without prejudice on May 20, 2004. [Dkt. no. 4.] 5. Defendant Conrad Luna ("Luna") is employed by the ADC as the Deputy

Warden of Operations at Arizona State Prison Complex-Safford ("ASPC-Safford") in Safford, Arizona. (Declaration of Conrad Luna ("Luna Declaration") ¶ 1 [Exhibit 2].) During the time of the alleged constitutional violations, he was the Deputy Warden of ASPC-Eyman, Special Management Unit II ("SMU II"). (Luna Declaration ¶ 2.)

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6.

Defendant Terry L. Stewart ("Stewart") was employed by the ADC from

September 20, 1985 to November 9, 2002. (Declaration of Terry L. Stewart ("Stewart Declaration") ¶ 1 [Exhibit 3].) He was employed as the ADC Director from December 15, 1995 to November 9, 2002. (Id.) 7. Defendant Audrey Burke ("Burke") is employed by the ADC in the Offender

Services Bureau Administrator at the Central Office Unit. (Declaration of Audrey Burke ("Burke Declaration") ¶ 1 [Exhibit 4].) She is responsible for the administration of the Inmate Classification System. (Id.) Her primary duties include overseeing inmate classifications, movement, time computations, and records. (Id.) 8. Defendant Kathy Cooper ("Cooper") is employed by the ADC at ASPC­

Eyman, Rynning Unit as a Librarian II I. (Declaration of Kathy Cooper ("Cooper Declaration") ¶ 1 [Exhibit 5].) She has worked at the Rynning Unit since September 3, 2001. (Id.) On May 1, 2003, Cooper worked in the Resource Library for the Rynning Unit. (Cooper Declaration ¶ 3.) 9. Defendant Neil Emore ("Emore") is employed by the ADC a Correctional

Lieutenant ("Lt.") for ASPC-Eyman, Special Management Unit ("SMU") I. (Declaration of Neil Emore ("Emore Declaration") ¶ 1 [Exhibit 6].) During the time of the alleged constitutional violations, he was the Day Shift Commander for the Rynning Unit. (Emore Declaration ¶ 4.) 10. Defendant Paula Fridenmaker ("Fridenmaker") is employed by the ADC as a

Correctional Officer ("CO") III for ASPC-Eyman, Rynning Unit. (Declaration of Paula Fridenmaker ("Fridenmaker Declaration") ¶ 1 [Exhibit 7].) During the time of the alleged constitutional violations, she was a CO III at ASPC-Eyman, Rynning Unit. (Id.) 11. Defendant Ernest Hewitt ("Hewitt") is employed by the ADC as a CO III for

ASPC-Eyman, Rynning Unit. (Declaration of Ernest Hewitt ("Hewitt") ¶ 1 [Exhibit 8].)

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During the time of the alleged constitutional violations, he was assigned to the Rynning Unit programs area. (Hewitt Declaration ¶ 4.) 12. Defendant Carol Pinson ("Pinson") is employed by the ADC as a CO III for

ASPC-Eyman, Rynning Unit. (Declaration of Carol Pinson ("Pinson Declaration") ¶ 1 [Exhibit 9].) During the time of the alleged constitutional violations, she was also assigned the Rynning Unit. (Pinson Declaration ¶ 4.) 13. Defendant Nathalie Nelson ("Nelson") is employed by the ADC as a CO III

for ASPC-Eyman, Rynning Unit. (Declaration of Nathalie Nelson ("Nelson Declaration") ¶ 1 [Exhibit 10].) During the time of the alleged constitutional violations, she was also assigned the Rynning Unit. (Id.) 14. Defendant Vince James ("James") is employed by the ADC as a CO III for

ASPC-Eyman, Rynning Unit. (Declaration of Vince James ("James Declaration") ¶ 1 [Exhibit 11].) During the time of the alleged constitutional violations, he was also assigned the Rynning Unit. Count I 15. Dennison asserts that the basis his allegations in Count I on the Defendants'

failure to respond to his inmate letters and grievances. (Deposition of Andre Dennison ("Dennison Deposition") at 8-9 [Exhibit 12].) 16. Department Order ("DO") 802, Inmate Grievance System, sets forth the

procedures inmates must follow to complete the prison administrative grievance process for "property, staff, visitation, mail, food services, institutional procedures, Department Written Instructions, program access, medical care, religion and conditions of confinement" issues through the Director's level. (Stewart Declaration ¶ 4.) 17. The processing of a standard grievance works as follows: (1) an inmate must

file an "inmate letter" attempting to informally resolve a complaint within 10 work days after he becomes aware of a specific problem; (2) if the inmate is not satisfied with the

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response to his letter, he may file a formal grievance within 10 calendar days from the date he received the response to the grievance coordinator; (3) the grievance must only address one issue; (4) if the inmate is not satisfied with the response of the grievance coordinator, he may file a grievance appeal within 10 calendar days from the date he received the response to a higher official (e.g., a Deputy Warden, or Warden), or the Facility Health Administrator for medical grievances; (5) if the inmate is not satisfied with the response to the grievance appeal, he may appeal to the ADC Director within 10 calendar days from the date he receive the response. (Stewart Declaration ¶ 5.) The Director's response is final, thus exhausting available administrative remedies for standard grievances. (Id.) 18. From June 2001 until November 2002, James was the Grievance Coordinator

for the Rynning Unit. (James Declaration ¶ 3.) James' duties were to review, investigate, respond to, and track inmate grievances submitted at the Unit. (Id.) 19. While the grievance coordinator, James received several grievances from

Dennison regarding his suspicion at staff were giving him false disciplinary tickets. (James Declaration ¶ 7.) Per policy, James returned several of those grievances unprocessed, because issues with staff relating to a disciplinary ticket should be addressed in the disciplinary appeals process. (Id.) 20. On March 30, 2002, Dennison sent Luna an Inmate Letter concerning issues

he was having with Lt. Lewis. (Luna Declaration ¶ 5.) Dennison's letter claimed that Lt. Lewis was issuing unwarranted disciplinary reports and placing him on Restricted Property status and cell restriction. (Id.) 21. On April 10, 2002, Luna responded to Dennison's Inmate Letter. (Luna

Declaration ¶ 6.) In his response, he explained that ADC records indicate that Lt. Lewis had appropriately addressed Dennison's failure to obey an order to walk in a prescribed area. (Id.) He also advised Dennison that he should follow the rules and comply with directives to avoid detention and/or disciplinary action. (Id.)

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22.

On April 4, 2002, Dennison sent Luna another Inmate letter.

(Luna

Declaration ¶ 7.) Dennison's letter claimed that Lt. Lewis and his subordinate staff were targeting him. (Id.) 23. On April 16, 2002, Luna met with Dennison to discuss his concerns with the

staff. (Luna Declaration ¶ 8.) Dennison admitted that he met with Luna to discuss his issues with staff. (Dennison Deposition at 9.) Luna provided Dennison with the opportunity to air his grievances at this meeting. (Id.) 24. On April 24, 2002, Luna responded to Dennison's April 4, 2002 Inmate

Letter. (Luna Declaration ¶ 9.) Luna explained to Dennison that he was afforded an opportunity to air his concerns at the April 16, 2002 meeting. (Id.) 25. On June 19, 2002, Dennison submitted an inmate grievance appeal to his

grievance coordinator for Terry Stewart. (Stewart Declaration ¶ 6.) His appeal claimed that his issues with staff had not been addressed. (Id.) 26. On July 7, 2002, Stewart responded to this grievance appeal. (Stewart

Declaration ¶ 7.) In reviewing the appeal he determined that Dennison's claims had no merit because he had provided no documentation to substantiate his allegations. (Id.) 27. Luna and Emore fully investigated Dennison's claims of alleged staff

misconduct. (Luna Declaration ¶ 12; Emore Declaration ¶ 16.) 28. Dennison asserts that so many officers were involved in misconduct against

him that it was "more prudent for me to go after the supervisors." (Dennison Deposition at 30.) 29. Neither Emore, nor his subordinates, filed false disciplinary reports against

Dennison. (Emore Declaration ¶ 5.) All of the disciplinary violations that Emore has submitted involving Dennison have been upheld by the disciplinary committee. (Id.) 30. Neither Emore, nor his subordinates, refused to feed Dennison on any

occasion. (Emore Declaration ¶ 6.) Neither Emore, nor his subordinates, maliciously

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handcuffed Dennison. (Emore Declaration ¶ 7.) Neither Emore, nor his subordinates, placed Dennison in unauthorized deadlock. (Emore Declaration ¶ 8.) Neither Emore, nor his subordinates, conducted any destructive cell searches. (Emore Declaration ¶ 9.)

Neither Emore, nor his subordinates, illegally denied Dennison a prison job or education programs. (Emore Declaration ¶ 10.) Neither Emore, nor his subordinates, shattered Dennison's outside cell window. (Emore Declaration ¶ 11.) 31. Luna does not recall any further communication or contact with Dennison

until being served with this lawsuit. (Luna Declaration ¶ 11.) 32. Emore, Luna and Stewart were not deliberately indifferent to alleged

misconduct and abuse of power by their subordinate staff. (Emore Declaration ¶ 17, Luna Declaration ¶ 13; Stewart Declaration ¶ 11.) Luna and Stewart did not fail to protect Dennison. (Luna Declaration ¶ 14; Stewart Declaration ¶ 12.) Count II 33. The ADC maintains a classification system to house inmates at custody

levels commensurate with their risk assessment and classification scores. (Burke Declaration ¶ 3.) Custody levels are described on a scale of one to five, with five requiring the highest security. (Id.) 34. Inmates are assigned two primary classification scores. (Burke Declaration ¶

4.) The "P" score refers to the level of risk the inmate poses to the public. (Id.) The "I" score refers to the level of risk the inmate poses within the institution. (Id.) 35. Department Order ("DO") 801 governs classification policy. (Burke

Declaration ¶ 5.) The purpose of this policy is to outline the ADC's classification system and procedures for "initial classification and subsequent reclassification action addressing security and programming needs." (Id.)

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36.

The Institutional Classification Committee ("ICC") examines an inmate's

records, hears from the inmate, and renders a decision on whether to change or maintain the inmate's classification scores. (Burke Declaration ¶ 6.) 37. Absent security concerns, every inmate is allowed to be present, make a

statement, and present information to the ICC at classification hearings with the exception of a Type 89 review. (Burke Declaration ¶ 7.) A Type 89 review is a quick paperless review of an inmate's record that does not affect his/her P/I score. (Id.) An inmate is not necessarily required to be present at a Type 89 review. (Id.) 38. The ADC reviews an inmate's classification levels every 180 days or after an

inmate is found guilty of certain Inmate Disciplinary Violations. (Burke Declaration ¶ 8.) When officials convict an inmate of a major disciplinary violation, that inmate is automatically referred to the ICC for a classification review. (Id.) 39. The ADC formally notifies the inmate of an upcoming classification hearing (Burke

using an Institutional Classification Referral Notice ("Referral Notice").

Declaration ¶ 9.) A Referral Notice explains the reason for the upcoming classification review, provides a period for the inmate to prepare for the hearing, and explains the inmate's options during the hearing. (Id.) The inmate signs the Referral Notice

acknowledging receipt of the notice. (Burke Declaration ¶ 10.) In the event that the inmate refuses to sign the referral notice, an officer signs the document and a second officer witnesses the refusal. (Id.) 40. The Referral Notice also allows an inmate to waive the five-day waiting

period for the ICC to conduct the classification hearing. (Burke Declaration ¶ 11.) When an inmate waives the five-day waiting period, the classification hearing may occur on the same day as the issuance of the Referral Notice. (Id.) 41. If there is a security concern the inmate's right to appear, make a statement,

and present information may be waived. (Burke Declaration ¶ 12.) An inmate may waive

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his appearance at the ICC classification hearing if no change is expected in the inmate's institutional placement. (Id.) An inmate with a waived right to appear may still submit a written statement for consideration. (Id.) 42. The classification review process involves three levels of review and an

optional appeal. (Burke Declaration ¶ 13.) The ADC classification review hearing uses a Reclassification Score Sheet (Form 801-4P). (Id.) After the Institutional Classification Committee ("ICC") conducts a hearing, it recommends a P/I classification score. (Id.) The ICC recommendation is reviewed by the Deputy Warden, who forwards the score sheet to the Central Classification Office for a final decision on the inmate's classification score. (Id.) 43. On May 1, 2003, officers presented a Referral Notice to Dennison. (Burke

Declaration ¶ 14.) Dennison signed acknowledging receipt of the notice and waived the five-day waiting period. (Id; Fridenmaker Declaration ¶ 5; James Declaration ¶ 10.) 44. On that same day, May 1, 2003, the ICC held Dennison's classification

review hearing. (Burke Declaration ¶ 15; Fridenmaker Declaration ¶ 4; James Declaration ¶ 10.) Fridenmaker and James attended Dennison's classification hearing. (Fridenmaker Declaration ¶ 4; James Declaration ¶ 10.) Dennison admits that the ICC could hold his classification hearing on the same day as he received the Referral Notice. (Dennison Deposition at 37.) However, Dennison does not believe that he had a classification hearing on May 1, 2003. (Dennison Deposition at 38.) 45. During the hearing, Dennison indicated that he wanted to get an override to

lower his P/I scores. (Fridenmaker Declaration ¶ 6.) Fridenmaker explained to him that he was ineligible for a score reduction. (Fridenmaker Declaration ¶ 7.) 46. Dennison was present at the hearing but became upset and walked out of the

classification hearing. (Burke Declaration ¶ 15; Fridenmaker Declaration ¶ 8; James

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Declaration ¶ 11.) The ICC recommended reducing Dennison's classification score from a 4/2 to a 4/1 based on time frames. (Id.) 47. When Dennison returned to the Programs area, Hewitt explained to him that

his classification hearing was complete. (Hewitt Declaration ¶ 5.) Hewitt told Dennison to return to his housing unit. (Hewitt Declaration ¶ 6; Pinson Declaration ¶ 6.) 48. Dennison began to argue with Hewitt, claiming that his classification hearing

was not complete. (Hewitt Declaration ¶ 7.) Dennison admitted that he had initially gone to the Programs area to sign reclassification paperwork. (Dennison Deposition at 37.) Dennison admitted that he then returned to the Programs area for his hearing after he had retrieved his papers from his cell. (Dennison Deposition at 51.) 49. James stepped out of the programs office and verbally directed Dennison to

return to his housing unit because his classification hearing was complete. (Hewitt Declaration ¶ 8; Pinson Declaration ¶ 6; Nelson Declaration ¶ 4; James Declaration ¶ 13; Dennison Deposition at 52.) James continued to order Dennison to leave. (Id.) 50. After Dennison continued to refuse to leave, James ordered Dennison to turn

around and submit to being handcuffed. (Hewitt Declaration ¶ 9; Pinson Declaration ¶ 7; Nelson Declaration ¶¶ 5-6; James Declaration ¶ 13.) He refused to comply with James' orders to cuff up. (Fridenmaker Declaration ¶ 10; Nelson Declaration ¶¶ 5-7; James Declaration ¶ 13.) According to Dennison, James called Dennison names like "lawyer boy" and told him that he should file a lawsuit against him. (Dennison Deposition at 56.) Dennison said that James also mentioned the lawsuit against Thelen. (Id.) After that, James shoved Dennison twice and sprayed him with mace. (Dennison Deposition at 5657.) 51. Dennison took a step back and raised his hands slightly and assumed a

fighting stance. (Hewitt Declaration ¶ 9; Pinson Declaration ¶ 9; Nelson Declaration ¶ 8; James Declaration ¶ 14; Fridenmaker Declaration ¶ 11.)

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52.

At that point, Hewitt activate the Incident Management System. (Hewitt

Declaration ¶ 10; Nelson Declaration ¶ 8.) Cooper and Emore heard the activation of the IMS. (Cooper Declaration ¶ 4; Emore Declaration ¶ 12.) The staff member indicated that an inmate was refusing to cuff-up at the West Side of the Disciplinary area. (Cooper Declaration ¶ 4.) That area is approximately 100 yards from the Resource Library, where Cooper was located, separated by a chain link fence. (Id.) 53. James again ordered Dennison to cuff-up and approached him in attempt to

place him in handcuffs. (Hewitt Declaration ¶ 11.) Dennison pushed James. (Hewitt Declaration ¶ 12; Fridenmaker Declaration ¶ 12.) In response, James retrieved his OC spray and administered two short bursts of chemical spray. (Hewitt Declaration ¶ 13; Pinson Declaration ¶ 10; Nelson Declaration ¶ 9; James Declaration ¶ 16; Fridenmaker Declaration ¶ 12.) Hewitt thought the chemical spray appeared to have little effect on Dennison. (Hewitt Declaration ¶ 13.) 54. Dennison admitted that Nelson and Fridenmaker witnessed the push and the

use of pepper spray. (Dennison Deposition at 67.) 55. James again attempted to place Dennison in handcuffs. (Hewitt Declaration

¶ 14.) Dennison punched James in the face. (Hewitt Declaration ¶ 15; Pinson Declaration ¶ 11; Nelson Declaration ¶ 10; James Declaration ¶ 17.) 56. The IMS response team began to arrive on the scene and they were able to

subdue Dennison and place him in handcuffs. (Hewitt Declaration ¶¶ 16-18; Pinson Declaration ¶ 12; Nelson Declaration ¶ 12; James Declaration ¶ 18; Fridenmaker Declaration ¶ 14.) 57. Cooper had a direct view of Dennison throwing punches at the James.

(Cooper Declaration ¶ 8.) From her vantage point, she could not identify the inmate or the staff member involved. (Id.) However, she did witness the inmate throwing punches at the officer. (Id.)

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58.

Emore responded to the IMS call, but did not witness Dennison assault

James. (Emore Declaration ¶ 13.) 59. Dennison asserts that no other officers were present when the altercation

with James began. (Dennison Deposition at 58.) 60. Dennison alleges that he received a laceration on each arm and pain from the

chemical spray as a result of the altercation with James. (Dennison Deposition at 68, 81.) Dennison admits that he did not need follow up medical care for the alleged injuries he sustained on May 1, 2003. (Dennison Deposition at 81-82.) 61. Later that day, Cooper, Emore, Hewitt, Pinson, Nelson, James, Fridenmaker

reported the incident. (Cooper Declaration ¶ 11; Emore Declaration ¶ 14; Hewitt Declaration ¶ 14; Pinson Declaration ¶ 14; Nelson Declaration ¶ 13.; James Declaration ¶ 20.) 62. Dennison believes that only an officer who has witnessed the entire incident

may submit a report. (Dennison Deposition at 62.) 63. The Defendants deny that they failed to protect Dennison. (Emore

Declaration ¶ 18; Pinson Declaration ¶ 17; Nelson Declaration ¶ 16.) 64. On June 14, 2003, Central Classification approved the reduction of

Dennison's P/I score from a 4/2 to a 4/1. (Burke Declaration ¶ 15.) 65. On June 5, 2003, officers presented a Referral Notice to Dennison. (Burke

Declaration ¶ 16; Fridenmaker Declaration ¶ 15.) Dennison was referred to the ICC for review of his custody level and housing placement based on the outcome of the Disciplinary Hearing in case no. 03-A21-0408. (Id.) Dennison refused to sign the Referral Notice. (Id.) 66. Dennison did not request any witnesses and did not submit a list of potential

witnesses. (Fridenmaker Declaration ¶ 16)

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67.

On June 20, 2003, the ICC held Dennison's classification review hearing.

(Burke Declaration ¶ 17; Fridenmaker Declaration ¶ 17.) According to the inmate summary statement of the Reclassification Score Sheet, Dennison was present at the hearing but refused to sign the Reclassification Score Sheet because he wanted to wait for the full five-day waiting period. (Burke Declaration ¶ 17.) The ICC recommended increasing Dennison's classification score from a 4/1 to a 5/5 and a transferring him to ASPC-Eyman, SMU I based on his conviction for a major disciplinary violation (assault on staff). (Id.) On June 30, 2003, Central Classification approved the increase of Dennison's P/I score from a 4/1 to a 5/5. (Id.) 68. On July 14, 2003, Dennison submitted an Inmate Letter appealing his May 1,

2003 classification hearing. (Burke Declaration ¶ 18.) Dennison asserted that he never attended this classification hearing. (Id.) Dennison admitted that he signed the five-day waiver. (Id.) Dennison believed his classification score should have been reduced from a 4/2 to a 3/1. (Id.) 69. On August 15, 2003, Donna Clement, the former Offender Services Bureau

Administrator, denied Dennison's classification appeal. (Burke Declaration ¶ 19.) Ms. Clement reviewed Dennison's case, and in accordance with the Classification Operating Manual, he was ineligible for a reduction to (P-3) until December 6, 2003. (Id.) She determined that the ICC correctly reclassified Dennison from a 4/2 to a 4/1 and his housing placement was correct. (Id.) 70. On July 19, 2003, Dennison submitted an Inmate Letter appealing his June

20, 2003 classification hearing. (Burke Declaration ¶ 20.) Dennison asserted that he was not allowed to present certain witnesses at the classification hearing and did not receive a Referral Notice. (Id.) He also asserted that ICC incorrectly reclassified him under the Zero Tolerance Policy. (Id.) Dennison requested the ICC hold another classification hearing for him. (Id.)

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71.

On August 15, 2003, Ms. Clement denied Dennison's classification appeal.

(Burke Declaration ¶ 21.) Ms. Clement reviewed Dennison's case, and in accordance with the Classification Operating Manual, the increase in his score was as the result of a serious disciplinary violation. (Id.) She determined that the ICC correctly reclassified Dennison from a 4/1 to a 5/5. (Id.) 72. Cooper, Hewitt, Pinson, Nelson were not in any way involved with

Dennison's classification review hearings. (Cooper Declaration ¶ 14; Hewitt Declaration ¶ 20 Pinson Declaration ¶ 15; Nelson Declaration ¶ 15.) 73. Cooper, Emore, Hewitt, James, and Fridenmaker do not know CO II Jennifer

Thelen. (Cooper Declaration ¶ 15; Emore Declaration ¶ 19; Hewitt Declaration ¶ 19; James Declaration ¶ 22; Fridenmaker Declaration ¶ 24.) 74. Dennison admitted that his retaliation claim is based solely on his belief that

the Defendants were good friends with CO III Jennifer [Thelen]. (Dennison Deposition at 34-35.) 75. Emore, Hewitt, Pinson, James, and Fridenmaker do not recall being

informed, prior to being served with this lawsuit, that Dennison had filed a lawsuit against CO II Jennifer Thelen. (Emore Declaration ¶ 19; Hewitt Declaration ¶ 19; Pinson Declaration ¶ 15; James Declaration ¶ 22; Fridenmaker Declaration ¶ 24.) RESPECTFULLY SUBMITTED this 7th day of September, 2005. Terry Goddard Attorney General

s/J. Randall Jue J. Randall Jue Assistant Attorney General Attorneys for Defendant

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Original e-filed this 7th day of September, 2005 to: Clerk of Court United States District Court 401 West Washington Phoenix, AZ 85003 Copy of the foregoing mailed this same date to: Andre Dennison, no. 143931 ASPC-Eyman/ SMU I P.O. Box 4000 Florence, AZ 85232 s/Colleen Jordan Secretary to: J. Randall Jue IDS03-0181 #921622

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