Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General J. Randall Jue Assistant Attorney General State Bar No. 014816 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 DISTRICT OF ARIZONA ANDRE ALMOND DENNISON, Plaintiff, v. CONRAD LUNA, et al., Defendants. DEFENDANTS' RESPONSE TO MOTION FOR TELEPHONIC DISCOVERY CONFERENCE FILED ON JULY 31, 2005 No. 03-CV-2373 PHX SRB (JI)

Defendants,1 through undersigned counsel, request that the Court deny Plaintiff's Motion for Telephonic Discovery Conference. This response is supported by the attached Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED on this 11th day of August, 2005. TERRY GODDARD Attorney General

s/ J. Randall Jue J. RANDALL JUE Assistant Attorney General Attorneys for Defendants ///
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Luna, Stewart, James, Emore, Pinson, Hewitt, Nelson, Fridenmaker, Cooper, and

Schriro.
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MEMORANDUM OF POINTS AND AUTHORITIES The Defendants contend that they have in good faith attempted to provide the Plaintiff with all known existing discoverable evidence in their possession, unless the requested items are not discoverable material pursuant to the guidelines set forth in the Federal Rules of Civil Procedure. The Plaintiff's Memorandum of Disputed Discovery Issues is addressed point-by-point, as follows. Request for Production ("RFP") of Documents for Defendant Schriro filed on January 27, 2005

a. RFP #1--All documents created involving the alleged May 1, 2003 incident. Such as the videotape of the incident, color photographs taken, recorded interviews, written statements, incident reports, and use of force reports filed. In Defendant James' Supplemental Response to Plaintiff's Request for Production of Documents filed on April 19, 2005, Defendant James produced (1) a redacted Criminal

13 Investigation no. 2003-03225 for the May 1, 2003 incident and (2) redacted administrative 14 investigation no. 2000-1681 for an incident involving James in 2000. 15 Schriro's Supplemental Response to Plaintiff's Request for Production of Documents filed 16 on May 3, 2005, Defendant Schriro produced Administrative Investigation Report no. 17 2003-1378 for 18 Investigation Report nos. 1992-0008 and 1997-0368 involving Defendant Emore, related 19 classification documents, related reports from staff, and related inmate letters. 20 As for color copies of the photographs, the Defendants produced photocopies of the 21 photographs that are included in the Criminal Investigation no. 2002-03225. According to 22 ADC legal services, the original color photographs do not exist anymore. Even if they did, 23 the Defendants would not be obligated to submit the original photographs to the Plaintiff. 24 As for the Plaintiff's request for a copy of "the unedited videotape," the Defendants 25 have produced a copy of the only known videotape of the May 1, 2003 incident. The 26 Plaintiff's belief that there is missing footage is unfounded. a April 21, 2003 incident involving Defendant Luna, Administrative In Defendant

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As for the Plaintiff's request for a copy of any recorded interviews done by the ADC Criminal Investigation Unit, the Defendants previously informed the Plaintiff that no such recordings exist. b. RFP #2--Produce the unedited videotape of the alleged May 1, 2003 incident of Plaintiff assaulting officers and refusing to be retrained, including all footage from beginning of incident to end. As noted above, the Plaintiff's belief that the Defendants are withholding portions of the videotape is unfounded. The Defendants produced all of the known existing

8 videotape of the May 1, 2003 incident. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 e. RFP #7--Produce complete files on all investigations and disciplinaries on Defendants Luna, James, Emore, and Hewitt, including the maintained by S.S.U., C.I.U., and the Defendants' personnel file, whether formal, or informal, also Sgt. Robles." Defendants originally objected and continue to object to the production of investigations and disciplinaries that are unrelated to the May 1, 2003 because this request is overly broad and not calculated to lead to the discovery of admissible evidence. Without waiving that objection, the Defendants produced Administrative Investigation Report no. d. RFP #6--Produce W.I.P.P./worker pay records for the Rynning Unit Prison Library for the weeks of April 21, 2003, April 28, 2003, and May 5, 2003. The original records that contain the workers' names, hours worked each day filled in by hand, total hours worked by each worker filled in by hand, total hours worked by each worker filled in by hand, and the signatures of the workers and Librarian. Defendants continue to object to the production of inmate payroll information and mailing addresses because it poses a significant risk to the safe and secure operation of the ADC prison system. c. RFP #3--Produce all audio/video recordings of Plaintiff's and alleged witnesses' statements made to the Criminal Investigations Unit on May 1, 2003. As the Plaintiff concedes, the Defendants have previously told him that the audio recordings of any investigative interviews do no exist.

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2000-1681 involving James, redacted face sheet for case no. 2002-0380 for Luna, and redacted face sheets for case nos. 1992-0008, 1997-0368, and 1997-0491 for Emore. f. RFP #8--Produce the complete unedited recorded IMS radio call on May 1, 2003 concerning Plaintiff. The Defendants inquired into the existence of a recording of the alleged IMS radio call and it does not exist.

g. RFP #10--The Plaintiff's complete Master Record File. The Defendants maintain their objection that this request is overly broad.

h. RFP #11--The Plaintiff's complete Institutional Record. The Defendants maintain their objection that this request is overly broad. i. RFP #12--Allow Plaintiff access to Rynning Unit Prison's Program Building and its fenced-in area for photographing, video, and measurements. Defendants maintain their objection that providing an inmate with precise information regarding the measurements of any prison facility poses an extremely high risk

17 to the safe and secure operation of the ADC prison system. 18 19 20 21 22 23 24 documents from May 2002 through May 2003 in Responses to Plaintiff's Discovery 25 Requests for Defendant Schriro Pursuant to May 11, 2005 Telephonic Conference. 26 /// k. RFP #14--Plaintiff's complete classification file containing all of Plaintiff's individual classification documents. On August 10, 2005, Defendant Schriro submitted Plaintiff's classification j. RFP #13--General diagram of Rynning Unit Prison Building locations. (overhead view). See response to i above.

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l. RFP #15--Complete investigative and disciplinary file on Sgt. Robles. The Defendants maintain that the request for any investigative or disciplinary file on Sgt. Robles is not calculated to lead to the discovery of admissible evidence. II. Request for Production of Documents for Defendant Stewart filed on March 1, 2005

a. RFP #1--Plaintiff's complete deposition. The Plaintiff may purchase his own copy of a transcript of his deposition from the court reporter. It appears the Plaintiff believes prior counsel agreed to provide him with a copy of the transcript based on the arrangements that were made for him to review the transcript for errors and corrections. b. RFP #2--List of prison yards that Defendant Emore, Lieutenant Lewis, Sgt. Robles have worked on during their career with ADOC, along with dates. The Defendants continue to object to this request is overly broad and not calculated to lead to the discovery of admissible evidence.

15 16 c. RFP #3--ADOC Classification Manual. 17 The Defendants object to this request because it is not calculated to lead to the 18 discovery of admissible evidence. 19 20 21 22 to lead to the discovery of admissible evidence. 23 24 25 26 calculated to lead to the discovery of admissible evidence /// e. RFP #5--List Jennifer Thelen's visits to Rynning Unit Prison (dates and times) from 2002 through present. The Defendants continue to object to this request because it is overly broad and not d. RFP #4--List Defendant James' visits to Meadows Unit Prison (dates and times) from 2002 through present. The Defendants object to this request because it is overly broad and not calculated

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f. RFP #6--Department Order ("DO") 113, 114, 501, 507, 508, 601, 608, 706, 801, 803, and 804. Restricted policies are not accessible to the public or inmates because of security concerns. Otherwise, all ADC polices are accessible to the inmates via the inmate's General Library. DO 113 (Institutional Management/Organizational Structure)--This is not a restricted policy. DO 114 (Forms Control)--This is not a restricted policy. DO 501 (Employee Professionalism, Ethics, and conduct)--This is not a restricted policy. DO 507 (Employee Records)--This is not a restricted policy. DO 508 (Employee Discipline)--This is not a restricted policy. DO 601 (Administrative Investigations)--601.01 through 601.01 are not restricted. 601.05 through 601.12 are restricted. DO 608 (Criminal Investigations)--608.01 through 608.03 are not restricted. 608.04 through 608.09 are restricted. DO 706 (Incident Management)--The entire policy is restricted. DO 801 (Inmate Classification)--This is not a restricted policy. DO803 "Director's Instruction #6 (Inmate Discipline System)--This is not a restricted policy. DO 804 (Inmate Behavior Control)--804.01 through 804.04 are not restricted. 804.05 through 804.08 are restricted. III. Request for Production of Documents for Defendant Cooper filed on January 27, 2005

a. RFP #2--The Library sign-in sheets for May 1, 2003. The ones prisoner workers sign-in and out on with their times of arrival and departure for Rynning Unit. In Defendant Cooper's Supplemental Response to Plaintiff's Request for production of Documents filed on April 19, 2005, Defendant Cooper submitted a redacted copy of ASPC-Eyman/Rynning Unit Resource Library Turnout Roster for May 1, 2003 in response to RFP #1. The document described in RFP #2 does not exist. b. RFP #4--Produce Library sign-in/sign-out sheets displaying Plaintiff Library and Legal turnouts. The Defendants object to the request because it is overly broad. The Defendants have produced the only pertinent documentation that is remotely linked to this case (see response to RFP #2 above). ///

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c. RFP #5--Produce names and last known physical addresses of the prisoners employed as library workers on May 1, 2003. The Defendants object to this request because it is not calculated to lead to the discovery of admissible evidence. The altercation between Defendant James and the Plaintiff occurred before the library workers arrived or turnouts were conducted. Moreover, giving an inmate information about other inmates poses an extreme risk to the secure and safe operation of the prisons system. IV. Request for Production of Documents for Defendant James filed on January 27, 2005.

a. RFP #1--All medical records on Defendant James for alleged May 1, 2003 injuries. Defendant James objects to giving the Plaintiff his medical records because that information is confidential and not calculated to lead to the discovery of admissible evidence. V. Request for Production of Documents for Defendant Luna filed on January 27, 2005

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a. RFP #1--Produce all documents created by Defendant Luna in investigating Plaintiff allegations made of abuse by officers. The Defendants have produced all documentation related to the incident on May 1, 2003. Any other documentation for any other incidents falls outside the scope of this lawsuit and are not discoverable. b. RFP #2--Produce file/documents of Plaintiff's written complaints to Wardens about targeted abuse being directed at Plaintiff by officers, including Plaintiff's requests for meetings to discuss the abuse. The Defendants have produced all documentation related to the incident on May 1, 2003. Any other documentation for any other incidents falls outside the scope of this lawsuit and are not discoverable. ///

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c. RFP #3--Produce all investigative documents/files of any investigation conducted regarding Defendant Emore, James, and Lt. Lewis, whether formal or informal. The Defendants object to this request because any investigations other than those pertaining to the May 1, 2003 will not lead to the discovery of admissible evidence in this case. d. RFP #4--Produce all complaints, inmate letters, or grievances concerning Defendant Emore, James, and Lt. Lewis. The Defendants object to this request because it is not calculated to lead to the discovery of admissible evidence in this case. VI. Request for Production of Documents for Defendant Luna filed on May 12, 2005

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a. RFP #5--Produce all fact-finding documents created into Plaintiff's officer abuse allegations at Rynning Unit Prison, as referred to in Defendant Luna's Response to Plaintiff's Request for Admissions #6 and #7 submitted April 27, 2005. On August 10, 2005, Defendant Luna filed Response to Plaintiff's Request for Production of Documents for Defendant Luna. In that Response, Defendant Luna

informed the Plaintiff that no fact-finding documents exist. b. RFP #6--All documents showing when Plaintiff was placed on "Deadlock" isolations or "strip-outs,"and for how long, at Rynning Unit Prison. On August 10, 2005, Defendant Luna filed Response to Plaintiff's Request for Production of Documents and produced Inmate letters regarding deadlock and strip-outs. c. RFP #7--All inmate disciplinary reports issued to Plaintiff that issued "Deadlock" isolations or "strip-outs" as punishment. On August 10, 2005, Defendant Luna filed Response to Plaintiff's Request for Production of Documents and produced Disciplinary Report for case no. 03-A12-0408.

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d. RFP #8--List Plaintiff's original date of arrival at Rynning Unit Prison and final date of departure. On August 10, 2005, Defendant Luna filed Response to Plaintiff's Request for Production of Documents and provided him with this information. VII. Request for Production of Documents for Defendant Pinson filed on May 12, 2005

a. RFP #1--Produce the documents referred to in Defendant Pinson's Responses to Plaintiff's Request for Admissions #7 submitted April 4, 2005, including all of the documents being referred to about July 2, 2004 statements. The Defendants have previously produced report no. 03-A12-1051 to the Plaintiff. As for Defendant Pinson's reference to July 2, 2004, that is the date she sent a

memorandum to ADC legal department informing them that her report contained one misstatement as to where the Plaintiff punched Defendant James. Defendant Pinson

objects to producing the memorandum because it is a communication prepared in response to the Plaintiff's Complaint and is protected by the attorney-client privilege. VIII. Defendant Emore's Response to Plaintiff's Interrogatories submitted April 21, 2005 a. Interrogatory #20--What specific investigations have been done against you during your ADOC employment? Defendant Emore objects to listing any specific internal investigations that have been conducted into his ADC employment because this interrogatory is not calculated to lead to the discovery of admissible evidence. Whether Emore has or has not been

investigated at the ADC is not relevant to this lawsuit.

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IX.

Defendant Schriro's Response to Plaintiff's Interrogatories filed May 12, 2005

a. Interrogatory #3--What positions did you have in St. Louis, Missouri in the Corrections field? Defendant Schriro objects to this interrogatory because it is not calculated to lead to the discovery of admissible evidence. Her prior employment in Missouri is not remotely relevant to this lawsuit. b. Interrogatory #4--Have you been a Defendant in prisoner litigation in any of your positions in St. Louis, Missouri? Defendant Schriro objects to this interrogatory because it is not calculated to lead to the discovery of admissible evidence. Her prior employment in Missouri is not remotely relevant to this lawsuit. c. Interrogatory #14--When a Diabetic informs officers of his need for emergency medical treatment due to Diabetic complications he experienced from his Diabetic medication not being given to him for seven days is he to be taken to the Health Unit for treatment? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. d. Interrogatory #15--Would you agree that the officers refusing to act on the Diabetic's request for emergency medical treatment violates ADOC policy and puts the prisoner's life in danger? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. e. Interrogatory #16--Food is vital to a Diabetic, what ADOC policy allows Corrections Officers to refuse food to prisoners at any meal? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence.

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f. Interrogatory #17--Refusing food, at any meal, to a Diabetic prisoner violates ADOC policy DO 501 Employee Professionalism, Ethics and Conduct? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. g. Interrogatory #20--The type of behaviors listed in interrogatories #8-#18 would be considered abuses of power in violation of ADOC policies? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. h. Interrogatory #21--The type of behaviors listed in interrogatories #8-#18 would as be considered retaliatory behaviors in violation of ADOC policies? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. i. Interrogatory #22--Have you ever been a Defendant in civil litigation where videotaped evidence disappeared under your watch? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. j. Interrogatory #23--Have you ever been a Defendant in civil litigation where the judge refused to accept your sworn testimony? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. k. Interrogatory #24--Have you ever been suspended from any of your job positions over inmates for failing to perform your responsibilities/duties? Defendant Schriro objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence.

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X.

Defendant Stewart's Response to Plaintiff's Interrogatories filed May 12, 2005

a. Interrogatory #10--Is it true that if inappropriate behavior by officers, such as abuse of power and abusing prisoners, goes undisciplined by their supervisors, the behavior grows more brazen, escalates, and also spreads to other officers? Defendant Stewart objects to this interrogatory because it is vague, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. b. Interrogatory #12--Has Defendant Luna ever been investigated for failing to adequately perform his duties/responsibilities? What were the investigations? Dates? Locations? Did Defendant Luna receive any type of sanctions or disciplinary actions (formal or informal)? If so, what were they? Defendant Stewart objects to this interrogatory because it is vague, compound, calls for speculation, and it is not calculated to lead to the discovery of admissible evidence. c. Interrogatory #13--Who would be responsible for maintaining videotape evidence for possible criminal investigation/prosecution, obtained at an ADOC prison? Defendant Stewart objects to this interrogatory because it is vague and it is not calculated to lead to the discovery of admissible evidence. Defendant Stewart assumes that this interrogatory arises from the Plaintiff's erroneous belief that there is missing footage from the videotape that has been disclosed to the Plaintiff. As stated previously, the Plaintiff's belief is unfounded. The Defendants have exhaustively inquired into the existence of all known videotape footage of the altercation between James and the Plaintiff on May 1, 2003.

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XI.

Defendant Fridenmaker's Response Admissions filed April 21, 2005

to

Plaintiff's

Request

for

a. Admission #3--Defendant Fridenmaker was never a witness to any classification hearing allegedly take place with the Plaintiff on May 1, 2003? As provided by Rule 36 of the Federal Rules of Civil Procedure, Defendant Fridenmaker asserted a denial and in good faith attempted to qualify an answer to a portion of the admission. b. Admission #4--Defendant Fridenmaker never witnessed Plaintiff allegedly refuse to sign any reclassification papers on May 1, 2003? As provided by Rule 36 of the Federal Rules of Civil Procedure, Defendant Fridenmaker asserted a denial and in good faith attempted to qualify an answer to a portion of the admission. c. Admission #5--Defendant Fridenmaker never witnessed Plaintiff walk out of any alleged reclassification hearing on May 1, 2003? As provided by Rule 36 of the Federal Rules of Civil Procedure, Defendant Fridenmaker asserted a denial and in good faith attempted to qualify an answer to a portion of the admission. Defendants contend that they have in good faith respond fully and accurately to all of the Plaintiff's numerous discovery requests. Therefore, the Defendants respectfully request that the Court deny the Plaintiff's Motion for Telephonic Discovery Conference. RESPECTFULLY SUBMITTED on this 11th day of August, 2005. TERRY GODDARD Attorney General

s/ J. Randall Jue J. RANDALL JUE Assistant Attorney General Attorneys for Defendants

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Original e-filed this 11th day of August, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, Arizona 85003 COPY mailed on the same date to:

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/ Colleen S. Jordan Secretary to J. Randall Jue
IDS04-0294/RM G2004-20632

Andre Almond Dennison, # 143931 ASPC ­ Eyman - SMU I P.O. Box 4000 Florence, Arizona 85232 Plaintiff Pro Per

918305

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