Free Notice of Filing Proposed Pretrial Order - 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 Attorneys for Defendant James. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Andre Almond Dennison, Plaintiff, v. Conrad Luna, et al., Defendants.

No. CV 03-2373 PHX SRB (JI) JOINT PROPOSED PRETRIAL ORDER

Pursuant to the Scheduling Order previously entered (Dkt. 8, 136), the following is the Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for ______________, 2006, at ___ before Judge Bolton.1

With the resignation of former Assistant Attorney General ("AAG"), Randall Jue, undersigned was assigned this case in September of 2006. Since that time, undersigned has conducted telephonic conferences with Plaintiff on September 26, 2006, October 3, 2006, October 6, 2006, October 20, 2006, and October 23, 2006, in an effort to prepare and lodge the proposed pretrial order with the Court. The parties however cannot reach an agreement as to the "Stipulations and Uncontested Facts." Plaintiff asserts that former AAG Jue agreed to include certain items in that section which undersigned believes are not appropriate as either stipulations or uncontested facts. When asked if he had anything in writing from AAG Jue, Plaintiff stated that he did not or was unsure. Undersigned informed Plaintiff several times that she would not agree to include such facts as uncontested or stipulated facts, however, would agree to include those facts in "Plaintiff's Contested Facts" section.

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A.

TRIAL COUNSEL FOR THE PARTIES Andre Almond Dennison, #143931 ASPC - Lewis - Morey Unit P.O. Box 3300 Buckeye, AZ 85326 Telephone: Defendants: Catherine M. Bohland Assistant Attorney General 1275 West Washington Phoenix, Arizona, 85007-2997 Telephone: (602) 542-4951; fax: (602) 542-7670.

Plaintiff:

B.

STATEMENT OF JURISDICTION

This action is filed pursuant to 42 U.S.C. § 1983 in the District Court of Arizona. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and 1357. Jurisdiction is not disputed. C. NATURE OF ACTION

Plaintiff, a prisoner in the Arizona Department of Corrections, has brought a section 1983 civil rights action alleging that on May 1, 2003, Defendant James assaulted him in To be certain of the facts that Plaintiff asserted were agreed to by AAG Jue, undersigned requested Plaintiff repeat the statements so she could discuss them with former AAG Jue. Plaintiff however refused to provide the statements again to counsel. The undersigned informed Plaintiff that the proposed pretrial order would be filed this week with the Court and that if he did not agree with the "Stipulated and Uncontested Facts" section, that the Joint Proposed Pretrial Statement would be filed without his signature. Plaintiff ended the telephonic conference by stating that he would not sign the documents and that he would inform the Court of undersigned's refusal to abide by prior counsel's stipulations and then hung up the telephone. To the best of undersigned counsel's knowledge, the remainder of this document is not disputed by the Plaintiff. Plaintiff has a current copy of this document (absent footnote 1), as well as, a Federal Express envelope to return the document with his signature. Undersigned will also send Plaintiff a copy of this document when it is filed with the Court. Undersigned also contacted former AAG Jue to verify whether any stipulations or agreements were entered between himself and Plaintiff related to inclusion of items as stipulations or uncontested facts. Mr. Jue stated he had no agreements as to stipulations or uncontested facts related to the Joint Proposed Pretrial Order with Plaintiff. 2
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retaliation for filing a lawsuit against another corrections officer. Plaintiff alleges that Defendant James pushed him into a fence causing lacerations to the back of his arms and his hand and then sprayed him in the face with a chemical spray. Defendant denies the allegation. D. JURY

Both parties have requested a jury trial. E. CONTENTIONS OF THE PARTIES 1. Plaintiff

In order for the Plaintiff to prevail on his retaliation/First Amendment claim against Defendant James, the Plaintiff must show that he was (a) engaged in protected conduct, (b) that an adverse action was taken that would deter a person of ordinary firmness from continuing to engage in that conduct, and (c) that there was a cause-and-effect relationship between (a) and (b). Demonstrating that Defendant James' actions were motivated in substantial part by a desire to punish Plaintiff for exercise of a constitutional right. In order for Defendant to prevail and defeat Plaintiff's claims, he must prove that his actions against the Plaintiff on May 1, 2003 were not motivated in part by a desire to punish Plaintiff for exercise of a constitutional right. 2. Defendant

A prisoner alleging retaliation under 42 U.S.C. §1983 must establish: (1) that the prison official acted in retaliation for the exercise of a constitutionally-protected right; and, (2) that the action "advanced no legitimate penological interest." Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997), cert, denied, 524 U.S. 936 (1998); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Plaintiff fails to satisfy these requirements. Plaintiff must establish a link between the exercise of the constitutional right and the allegedly retaliatory conduct. Moreover, the legitimate penological reasons which are 3
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proffered by prison officials, for conduct Plaintiff claims is retaliatory, are to be afforded "appropriate deference and flexibility." Pratt v. Rowland, 65 F.3d 802.807 (9th Cir. 1995). The Plaintiff merely makes conclusory allegations that are insufficient to make a claim. Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). Plaintiff's claim of retaliation against Defendant should fail. Plaintiff alleges that Defendant James assaulted Plaintiff in retaliation for him filing a multi-million dollar lawsuit against a colleague (Thelen) which was served eight days before the alleged assault. However, Plaintiff has no facts to support the inference that a connection exists between Defendant and CO Thelen. The Defendant had no knowledge that Plaintiff filed a lawsuit against Thelen. Defendant cannot be said to have retaliated. In addition to having no personal knowledge of the lawsuit brought by Plaintiff against Thelen, Defendant's actions towards Plaintiff were peneologically justified. Plaintiff apparently alleges that without provocation, Defendant pushed him into a fence causing cuts to his back and sprayed him in the face with mace. It is Defendant James' contention that, as an ADC Correctional Officer, he was obligated to ensure the safe and orderly operation of the prison facility so as not to jeopardize internal security. Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) ("`[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.'" [citations omitted]). As a matter of law, Defendant James is constitutionally mandated to exercise discretion to administer the day-to-day affairs of the prison in such a way as to avoid jeopardizing prison security, and the safety, health and well-being of Plaintiff, the public staff and other inmates. Bell, 441 U.S. at 547. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977); Pell v. Procunier, Without knowledge about the lawsuit,

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417 U.S. 817, 827 (1974); Procunier v. Martinez, 416 U.S. 396, 404-5 (1974); Cruz v. Beto, 405 U.S. 319, 321 (1972). On May 1, 2003, ADC officials provided Plaintiff with a classification hearing, after he waived his right to notice. During the hearing, Plaintiff became upset and left the area and the hearing was completed outside his presence. Plaintiff later returned to the area with papers and was told his classification hearing was completed and to return to his housing unit. However, Plaintiff refused to leave. Because Plaintiff refused to leave, James ordered Plaintiff to submit to handcuffing and Plaintiff refused. Plaintiff assumed a fighting stance towards James and the Incident Management System was activated. James approached Plaintiff and again ordered him to cuff-up. Plaintiff refused and pushed James. James retrieved his OC spray and administered it at Plaintiff, however, the spray appeared to have little effect on him. James again attempted to place handcuffs on the Plaintiff and Plaintiff punched James in the face. The IMS response team arrived on the scene and they subdued Plaintiff and placed him in handcuffs. Defendant was responsible for insuring that Plaintiff, an inmate, followed directives and that he was properly restrained when he failed to follow those directives. When Defendant was unable to restrain Plaintiff and Plaintiff began pushing him, Defendant appropriately administered OC spray to Plaintiff's face. He used no more force than was necessary to subdue Plaintiff from attacking him. F. STIPULATIONS AND UNCONTESTED FACTS 1. 2. 3. 4. Plaintiff is an inmate incarcerated in the ADC. Plaintiff was incarcerated in the ADC in May of 1999. Defendant is a current or former prison official. Defendant worked in the capacity of a corrections officer at the

Rynning Unit on May 1, 2003. 5
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5.

Plaintiff was housed at the Arizona State Prison Complex

("ASPC")- Rynning Unit on May 1, 2003. 6. On April 22, 2003, CO Jennifer Thelen was served process in CV02-

1941-PHX-SRB, a lawsuit filed by Plaintiff. G. PLAINTIFF'S CONTESTED FACTS

On April 22, 2003, Plaintiff Andre Dennison, served Defendant Vince James' colleague and/or friend Jennifer Thelen with a multi-million dollar 42 U.S.C. 1983 lawsuit, in violation of the Plaintiff's First Amendment right under the U.S. Constitution to be free from retaliation. On the morning of May 1, 2003, eight days after serving Jennifer Thelen with the multi-million dollar 42 U.S.C. § 1983 lawsuit, Defendant James called Plaintiff to the Rynning Unit Programs Building to sign a notification form notifying Plaintiff that his reclassification hearing was doing to take place in five days. Then Defendant James told Plaintiff that he can have the hearing that same morning, May 1, 2003, if Plaintiff wanted. Plaintiff agreed and was given permission to return to his cell to retrieve paperwork in preparation for the hearing. When Plaintiff returned with his paperwork, Defendant James told Plaintiff that he was not getting a hearing. When Plaintiff asked why, Defendant James said: "Why don't you sue me like you sued Thelen?" Defendant James then called Plaintiff "lawyer-boy piece of shit" among other expletives. Defendant James assaulted Plaintiff by spraying Plaintiff in the face with pepper spray/foam and repeatedly shoved Plaintiff in his chest against a fence, causing injuries to Plaintiff. Defendant James continued his retaliatory conduct against the Plaintiff by making false allegations to Arizona Department of Corrections prison officials and investigators claiming that Plaintiff punched Defendant James in the face on May 1, 2003. Due to 6
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Defendant James' false claims, Plaintiff was issued disciplinary infractions, immediately removed from medium-security Rynning Unit and placed at super-maximum security Special Management Unit I for two and one-half years. Plaintiff was criminally charged with a felony of aggravated assault on Defendant James in Superior Court of Arizona in Pinal County, which Plaintiff defended against. The case was dismissed. H. DEFENDANTS' CONTESTED FACTS 1. hearings. 2. A classification hearing can be set on the same day an inmate receives The ADC formally notifies inmates of upcoming classification

notice, as long as the inmate waives the five-day waiting period. 3. On May 1, 2003, ADC staff provided Plaintiff with notice of his

classification hearing to be held on or after May 8, 2003. 4. Plaintiff acknowledged receipt of the notice and waived the five-day

waiting period. 5. ADC officials offered Plaintiff the opportunity to have his

classification hearing on May 1, 2003, the day he signed the waiver of the waiting period. 6. 7. hearing. 8. scores. 9. 10. 11. Fridenmaker told Plaintiff he was not eligible for a score reduction. Plaintiff became upset and walked out of the classification hearing. The hearing continued outside the presence of Plaintiff and the ICC During the hearing, Plaintiff requested an override to lower his P/I On May 1, 2003, Plaintiff was given a classification review hearing. CO's Fridenmaker and James attended Plaintiff's classification

recommended reducing Plaintiff's classification score from a 4/2 to a 4/1. 7
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12. 13.

Plaintiff left the program area and returned a short time later. Plaintiff returned to the programs area and was told by CO Hewitt that

his classification hearing was complete and to return to his housing unit. 14. 15. Plaintiff started arguing with CO Hewitt. James came out of the programs office and directed Plaintiff multiple

times to return to his housing unit. 16. A verbal exchange ensued between Plaintiff and James after he

returned to the program area. 17 18. 19. 20. Plaintiff refused to leave the area. James ordered Plaintiff to submit to handcuffing. Plaintiff refused to comply with orders by James to cuff-up. Plaintiff took a step back and raised his hands slightly and assumed a

fighting stance. 21. Hewitt activated the Incident Management System.

James again ordered Plaintiff to cuff-up and approached him in an attempt to place handcuff on him. 22. 23. Plaintiff pushed James. James retrieved his OC spray and administered two short bursts of

chemical spray towards Plaintiff's face. 24. 25. 26. 27. in handcuffs. 28. Plaintiff was not told that he was not getting a classification hearing. 8
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The chemical spray appeared to have little effect on Plaintiff. James again attempted to place Plaintiff in handcuffs. Plaintiff punched James in the face. The IMS response team arrived and subdued Plaintiff and placed him

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29. expletives. 30. 31.

James did not call the Plaintiff a "lawyer boy piece of shit" or other

James did not push Plaintiff. Defendant did not retaliate against Plaintiff.

ISSUE OF LAW IN CONTROVERSY

Whether Plaintiff's First Amendment rights under the United States Constitution to be free from retaliation were violated by Defendant James. J. SEPARATE TRIAL OF ISSUES 1. remains. I. WITNESSES 1. a. 1. events. 2. events. 3. David Whiteaker ­ testify regarding investigation into May 1, 2003, Cameron Walker ­ testify to May 1, 2003, incident and surrounding Plaintiff's Witnesses Witnesses who shall be called at trial: Andre Dennison ­ testify to May 1, 2003, incident and surrounding Only Plaintiff's retaliation claim pursuant to the First Amendment

events and procedures for maintaining evidence. 4. Dennis Merritt ­ testify regarding investigation into May 1, 2003,

events and procedures for maintaining evidence. 5. Leonard Brent ­ testify regarding May 1, 2003, incident and

surrounding events. 6. events. 9
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Eric Cobb ­ testify regarding May 1, 2003, incident and surrounding

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7.

Ernest Hewitt - testify regarding May 1, 2003, incident and

surrounding events. 8. Carol Pinson - testify regarding May 1, 2003, incident and

surrounding events. 9. Paulla Fridenmaker - testify regarding May 1, 2003, incident and

surrounding events. 10. Vince James - testify regarding May 1, 2003, incident and

surrounding events. 11. Kathy Cooper - testify regarding May 1, 2003, incident and

surrounding events. 12. Shawn Johnson ­ testify regarding view from Rynning Unit's

Library window to West Disciplinary/Programs Building entrance. 13. Andrew Love ­ testify regarding view from Rynning Unit Library

window top West Disciplinary/Programs Building entrance. 14. Nathalie Nelson - testify regarding May 1, 2003, incident and

surrounding events. 15. Neil Emore ­ testify to the layout of Rynning Unit and procedures for

maintaining evidence. 16. 17. records. 18. Carol Lamb ­ testify regarding reclassification procedures and Dr. Stapley ­ testify regarding Vince James' medical records. Jennifer Clemenshaw ­ testify regarding Vince James' medical

previous investigations into Vince James. 19. Cristle Gordon ­ testify regarding reclassification procedures and

previous investigations into Vince James. 10
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20.

Wendy Eccles ­ testify regarding reclassification. Vince James and

Jennifer Thelen. 21. CO III M. Evans - testify to Plaintiff being placed in super-

maximum Special Management Unit I, in single-celled punitive segregation for two and one-half years due to Vince James' allegations. 22. Matthew A. Ritter ­ testify regarding his investigation into the May

1, 2003, incident and surrounding events, along with the arising criminal charges. 23. Tony Jackson ­ testify regarding view from Rynning Unit library

window to west disciplinary/programs building entrance. Defendants' Objections to Plaintiff's Witnesses: Plaintiff fails to identify who the following individuals are, as well as, fails to explain with any specificity what there testimony is: Cameron Walker, David Whiteaker, Dennis Merritt, Leonard Brent, Eric Cobb, Shawn Johnson, Andres Love, Jennifer Clemenshaw, Carol Lam, Cristle Gordon, Wendy Eccles, CO III M. Evans, Matthew Ritter and Tony Jackson. In addition, Defendant objects to any persons testifying

regarding his medical records or investigations concerning him. 2. Defendants' Witnesses a. Witnesses who shall be called at trial: 1. Audrey Burke will testify that she is employed with the ADC in the

Offender Services Bureaus and responsible for administration of the Inmate Classification System. She will testify regarding ADC's Departmental Order 801 which governs classification policy. She will testify that absent security concerns, every inmate is allowed to be present at their classification hearings with the exception of a Type 89 review. She will further testify about the Referal Notice which is given to inmates and how the five-day waiting period operates. She will 11
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testify that when an inmate waives the five-day waiting period, the classification hearing can occur on the same day as the issuance of the Referral Notice. Burke will testify that on May 1, 2003, officers presented a Referral Notice to Plaintiff and he signed the notice, thereby acknowledging receipt of the notice and waiver of the five-day waiting period. She will testify that on May 1, 2003, the ICC held

Plaintiff's classification review hearing, and that according to the inmate summary statement of the reclassification score sheet, he was present at the hearing but walked out of the hearing. 2. Paula Fridenmaker will testify that she is employed with the ADC as a CO III and that on May 1, 2003 she was assigned to the Rynning Unit Programs Office. She will testify that Plaintiff signed the classification referral notice

waiving his five-day waiting period to prepare for the classification hearing. She will further testify that Plaintiff's classification hearing was held on that date in which the Plaintiff attempted to get an override to lower his scores because he wanted to transfer to a lower-custody housing unit. When she explained to him that he was not eligible on this date for a reduction, Plaintiff became upset and walked out of the hearing, refusing to sign or initial any paperwork. After Plaintiff left the area, he returned and refused to comply with Defendant James' orders to cuff-up. Plaintiff took an aggressive stance and raised his fists towards Defendant James at which time the Incident Management System was activated. Plaintiff attempted to hit James and James sprayed the Plaintiff with pepper spray, ordering him to cuffup. Plaintiff hit James in the head. The IMS arrived and regained control of the Plaintiff. 3. Defendant Vince James will testify that he was employed with the

ADC on May 1, 2003, as a CO III at the Rynning Unit. He will testify that he 12
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attended Plaintiff's classification review hearing at the programs office after Plaintiff waived his five-day waiting period. During the hearing, Plaintiff became upset when he learned he was not eligible for a score reduction whereupon he walked out of the hearing and refused to sign or initial any paperwork. When Plaintiff returned to the programs office, James told him to return to his housing unit and he refused to comply. Plaintiff became verbally abusive and James ordered Plaintiff to cuff-up. Plaintiff refused to cuff up and hit James in the head. James sprayed Plaintiff in the face with pepper spray to get Plaintiff to comply with his directives. IMS arrived on the scene and regained control of Plaintiff. b. 1. Witnesses who may be called at trial: Kathy Cooper will testify that she is employed at the ADC as a

Librarian II and that she was working in the Resource Library for the Rynning Unit when she heard a staff member activate the Incident Management System. She will testify that the reason for the alert was that an inmate was failing to cuff-up. She will further testify that when she looked out of the window of the Resource Library she saw an inmate sanding inside the fence with his back towards the recreation field and that within seconds, the inmate's hands went up and he began throwing punches towards a staff member. She will testify that both and Plaintiff and

Defendant James were later identified. 2. Ernest Hewitt will testify that he was employed with the ADC on

May 1, 2003, as a CO III and was assigned to the Rynning Unit. He will testify that at approximately 8:50 a.m., Plaintiff knocked on the door to the Programs area and that he opened the door pursuant to James' request and told Plaintiff that his classification hearing was completed. Hewitt told Plaintiff to return to his housing unit and he began arguing with Hewitt. Defendant James stepped out of the office 13
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and directed Plaintiff to return to housing and Plaintiff refused. After continued non-compliance, James ordered Plaintiff to submit to handcuffing at which time Plaintiff took a step back and raised his hands into a fighting stance. Hewitt will testify that at that time he activated the IMS and called for an A-team response. James continued to order Plaintiff to cuff-up and approached him in an attempt to place handcuffs on him. Plaintiff pushed James on his chest and James sued his OC spray and administered two short bursts of chemical spray in Plaintiff's facial area, which appeared to have little effect. When James attempted to put the handcuffs on again, Plaintiff struck James in the head. The response team arrived and subdued Plaintiff. 3. Carol Pinson will testify that she was employed by the ADC on May

1, 2003, as a CO III and assigned to the Rynning Unit. She will testify that on the morning of May 1, 2003, Plaintiff was outside the office door. She witnessed Defendant James order Plaintiff to return to his housing unit and that the Plaintiff did not leave the area. She witnessed James order Plaintiff to cuff-up and Plaintiff refused. At that point, Hewitt activated the IMS. Pinson was a distance of

approximately 5 to 7 feet from Plaintiff. James attempted to place handcuffs on Plaintiff when he attempted to throw punches to avoid the handcuffs. She will testify that James sprayed Plaintiff twice with a chemical spray and then attempted to again handcuff him. She then witnessed Plaintiff throw a punch to James' head. The IMS response team arrived and subdued Plaintiff. 4. Nathalie Nelson will testify that she was employed with the ADC on

May 1, 2003, as a CO at the Rynning Unit. She will testify that she witnessed Defendant James direct Plaintiff to leave the program area and return to his housing unit. Plaintiff refused to return and continued to argue with James. James then 14
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ordered the Plaintiff submit to handcuffing which the Plaintiff refused. Plaintiff made aggressive moves to James with his fists up and James sprayed Plaintiff with pepper spray. Plaintiff continued to advance towards James and then hit James in the head. IMS arrived and regained control of Plaintiff. 5. ADC Physician will testify regarding the medical care that Plaintiff

received for injuries alleged received on May 1, 2003. Plaintiff's Objections to Defendant's Witnesses: Plaintiff objects to ADC Physician as the doctor is not named at this time. Plaintiff also objects to Audrey Burke as a defense witness. L. Expert Witnesses 1. a. Plaintiff's Expert Witnesses Handwriting expert ­ Plaintiff is looking into obtaining this expert for

the task of document verification, but has not obtained one yet. If one is obtained, Plaintiff will notify Defendant of the expert's identity. b. Witnesses listed by the Plaintiff may testify regarding their expert

knowledge of ADC policies and procedures and the Rynning Unit. 2. Defendants Expert Witnesses

Defendants have not designated any experts to testify in this matter. However, the fact witnesses listed by Defendants may testify regarding their expert knowledge of ADC policies and procedures. The physican/health care provider who is called by Defendant will testify regarding Plaintiff's medical condition as relevant to the issues in this case. M. EXHIBITS AND DEPOSITIONS 1. Plaintiff's Exhibits (Defendants' objections to Plaintiff's exhibits are indicated in bold.) a. 5/1/03 Video recording of incident 15
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b. 1051 c. d. e. f. g. h. i. j. k.

5/1/03

Incident Management/Use of Force Report #03-A12-

5/1/03 4/22/03 5/1/03

Significant Incident Report #03-0378 U.S. Department of Justice Process Receipt and Return Photographs of Vince James and Andre Dennison

Criminal Investigation D.R. #2003-03225 5/1/03 5/1/03 5/1/03 Institutional Classification Referral Notice Reclassification Score Sheet Vince James' medical records

Employee/Supervisor Report of Industrial Injury 5/1/03 Inmate Disciplinary Reports #03A120408, #03A12409,

#03A12410 l. Inmate Letters dated: 5/2/03; 5/6/03; 5/20/03; 5/17/03; 5/26/03;

5/23/03; 6/5/03; 6/10/03; 7/14/03; 7/19/03; 2/21/05; 5/2/05. m. n. o. p. q. r. s. t. u. v. w. Inmate Letter Responses: 5/6/03; 5/20/03; 5/23/03. 6/5/03 Result of Disciplinary Hearing 03A120408

Appeal of Disciplinary Charge 034120408 dated 6/10/03 and 6/30/03 Administrative Report 2000-1681 Reclassification Score Sheets: 10/29/02; 6/19/03 6/5/03 8/15/03 5/26/04 3/17/05 4/11/05 Institutional Classification Referral Notice Offender Bureau Responses Superior Court of Arizona Summons Motion for Dismissal of Charges Superior Court Order dismissing charges

Declarations: Tony A. Jackson 16

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x.

Affidavits:

Andre Dennison; Lonnie Boyd; Leonard Brent; Eric

Cobb; Shawn Johnson; Andrew Love; T.F. Dugar. y. Admissions: Terry Stewart; Dora Schriro; Conrad Luna; Vince

James; Ernest Hewitt; Paulla Fridenmaker; Kathy Cooper; Carol Pinson; Nathalie Nelson; Neil Emore. z. Interrogatories: Terry Stewart; Dora Schriro; Conrad Luna; Vince

James; Ernest Hewitt; Paulla Fridenmaker; Kathy Cooper; Carol Pinson; Nathalie Nelson; Neil Emore. aa. 2. Diagram of Rynning Unit. Defendant's Exhibits (Plaintiff's objections to Plaintiff's exhibits are indicated in bold.) a. Reports written by witnesses Burke, Cooper, Fridenmaker, Hewitt, Pinson, James and Nelson. b. c. d. e. f. g. h. i. Deposition of Plaintiff. Plaintiff's complete ADC medical records. Pictures of Plaintiff taken May 1, 2003. ADC Institutional Classification Referral Notice. ADC Reclassification Score Sheet dated 6/14/03. ADC Institution Classification Referral Notice. ADC Reclassification Score Sheet dated 6/30/03. Department Order 801 ­ Inmate Classification.

MOTIONS IN LIMINE 1. Plaintiff:

Plaintiff will be filing a motion in limine, requesting that Defendants not be allowed to refer to or question Plaintiff or any prisoner witness on their criminal convictions other 17
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than that they are convicted of a felony. Plaintiff will also request that Defendants be limited in their testimony, as well as, their witnesses to the events surrounding May 1, 2003. 2. Defendants:

Defendant's motions in limine will be limited to relevancy of Plaintiff's witnesses and exhibits. O. PROBABLE LENGTH OF TRIAL 1. 2. Plaintiff predicts a 3 to 4 day trial Defendant anticipates a 3 day trial.

P. Trial Date The parties will provide available trial dates after the Final Pretrial Conference for trial counsel and witnesses. Q. STIPULATED PROPOSED STATEMENT OF THE CASE, JURY INSTRUCTIONS, VOIR DIRE QUESTIONS, JUROR QUESTIONNAIRES, IF ANY, FORMS OF VERDICT AND TRIAL MEMORANDUM OF LAW.

The Stipulated Proposed Statement of the Case, Proposed Jury Instructions, Proposed Voir Dire Questions, Forms of Verdict and Trial Memoranda of Law are filed with this proposed Order. R. MISCELLANEOUS

Plaintiff needs court instructions and forms on how to subpoena witnesses. Plaintiff will need last-known addresses of current and former ADC employees from Defendant so subpoenas can be served. Plaintiff needs a Court Order to allow him to contact his witnesses. Plaintiff will need the Court to provide a television monitor and VCR to show videotape evidence at trial. Plaintiff will need Defendant's counsel to bring the May 1, 18
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2003 videotape of the incident shown to Plaintiff, but not allow the video tape to remain in his possession as inmates cannot keep video tapes. S. MODIFICATION OF ORDER

The Court may, in order to prevent manifest injustice or for good cause shown, at the trial of the action or prior thereto upon application of counsel for either party, made in good faith, or upon the motion of the Court, modify the Final Pretrial Order upon such conditions as the Court may deem just and proper. APPROVED AS TO FORM AND CONTENT:

(Plaintiff refused to sign) Plaintiff, In Proper Person2

s/Catherine M. Bohland Attorney for Defendant

THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED ON THIS ________ DAY OF _________________________, 2006.

____________________________ Susan Bolton United States District Judge #979266

Plaintiff has received a copy of this Joint pleading. Defendant's Counsel will also send him an additional copy should he wish to sign the document and file it with the Court. 19
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