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 PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS No. 03-CV-2373 PHX SRB (JI)

Defendants,1 through undersigned counsel, respond to the Plaintiff's Motion to Compel and for Sanctions (Dkt. 108). Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED on this 17th day of January, 2006. TERRY GODDARD Attorney General This response is supported by the attached

s/ J. Randall Jue J. RANDALL JUE Assistant Attorney General Attorneys for Defendants ///
1

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

Schriro.
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MEMORANDUM OF POINTS AND AUTHORITIES On December 30, 2005, the Plaintiff filed a Motion to Compel and for Sanctions ("Motion to Compel"). (Dkt. 108.) The Defendants respond as follows: Request for Production of Documents for Defendant Schriro Filed January 27, 2005 a. Color copies of the photographs.

In Defendant Schriro's Supplemental Response to Plaintiff's Request for Production of Documents Pursuant to the Discovery Conference on October 5th and 20th of 2005, filed on December 16, 2005 (Dkt. 105), she informed that the color photographs would be produced at a later date. On January 4, 2006, Schriro sent color copies of the photographs to the Plaintiff. (Dkt. 110.) b. Unedited videotape

The only existing videotape of the incident was provided to the Plaintiff's counselor on May 3, 2005, in Defendant Schriro's Supplemental Response to Plaintiff's Request for Production of Documents. ADC legal service department verified that no other videotapes exist. Defense counsel verifies that he used every available avenue to locate any existing copy of any videotape of the May 1, 2003, incident. The only known existing tape has been produced and provided to the Plaintiff for him to view. The tape that the Plaintiff seeks no longer exists. In his Motion to Compel, the Plaintiff states that he viewed the tape he seeks at a disciplinary hearing on May 9, 2003. Although the tape may have existed on that date, it did not exist when Defense counsel requested a copy of it in the spring of 2005, almost two years later. c. All Audio/video Recordings of Plaintiff's and Witnesses' Statements to Criminal Investigations Unit on May 1, 2003 As Defendant Schriro told the Plaintiff on May 3, 2005, in Defendant Schriro's Supplemental Response to Plaintiff's Request for Production of Documents, no such audio/video recordings exist. Defense counsel verified this through the ADC legal

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services department. Defense counsel verifies that he used every available avenue to locate any existing audio/video recordings of Plaintiff's and Witness' Statements made to the Criminal Investigations Unit on May 1, 2003. Plaintiff claims that they must exist now because they existed on May 1, 2003. The Defendants do not dispute that the recordings may have existed on May 1, 2003. They only contend that they do not exist now and not at the time the Plaintiff requested copies of these audio/video recordings. d. Complete Files on All Investigations and Disciplinaries on Defendants Luna, James, Emore, and Hewitt In the Plaintiff's informal discovery request dated October 31, 2005, he indicated that he only still needed Luna's and Emore's investigations and disciplinary records. (Attachment A.) Defense counsel verifies that he has produced all known existing records pertaining to Luna and Emore. The Plaintiff claims that he needs Emore's records to show that "Defendant Emore had no moral reservations in issuing Plaintiff three (3) disciplinary reports for infractions on May 1, 2003, he never witnessed and did not occur. Aside from the fact that Defendant Schriro has produced all known existing documentation related to Emore's disciplinary record as discussed below, she objects to the production of these documents because they are not relevant and not likely to lead to admissible evidence. In Count II, the Plaintiff claims that Emore retaliated against Plaintiff for filing an earlier lawsuit against his friends and colleagues at the ADC. Whether Emore had been

investigated or disciplined prior to May 1, 2003, has no relevance to this issue. Nevertheless, as Defense counsel told the Plaintiff on May 3, 2005, in Defendant Schriro's Supplemental Response to Plaintiff's Request for Production of Documents, pursuant to the ADC's record retention policy, all Emore investigation files have been destroyed. Nevertheless, Defendant Luna previously disclosed Redacted Face Sheet for Case no. 2003-0380 in which Luna was investigated for allegedly failing to follow the proper procedure in sending two inmates out for the wrong work crew. With respect to Emore, he previously disclosed Redacted Face Sheets for Case nos. 1992-0008, 1997-

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0368, 1997-0491. With respect to Hewitt, Schriro informed the Plaintiff on May 3, 2005, that there were no investigations or disciplinary actions involving Hewitt as the principal. With regard to James, Schriro told the Plaintiff to refer to James' Supplemental Response to James' Response to Request for Production of Document no. 2 filed on April 19, 2005, in which James produced redacted Criminal Investigation No. 2003-03225 and redacted Administrative Investigation No. 2000-1681. II. Request for Production of Documents for Defendant Stewart Filed March 1, 2005 a. Plaintiff's Deposition The Plaintiff contends that Defense Counsel Carlota Turman, who previously represented the Plaintiff and took his deposition, agreed to provide him with a copy of the transcript of his telephonic deposition. Based on his review of the file, undersigned counsel can find no evidence that Turman ever agreed to pay for a copy of the transcript for the Plaintiff. Instead, it appears that the Plaintiff misinterpreted Turman

communication to him that he would be allowed to review the transcript for errors. Undersigned counsel attempted to facilitate this in a letter sent to the Plaintiff on or about April 21, 2005. (Attachment B.) Unless the Plaintiff can produce documentation to substantiate his claim, the Defendants request that the Court deny the Plaintiff's motion to compel them to provide him with a copy of the transcript of his deposition. b. Department Orders 113, 114, 501, 507, 508, 601, 608, 706, 801, 803, and 804 The Plaintiff contends that he has not gained access to Department Orders ("DO") 601, 608, 706, and 804 and claims that the Defendants' security concerns are "irrelevant under federal law." The ADC allows any one in the public, including prisoners, to access its DOs unless they pertain to procedures used to maintain the safe and secure operation of its facilities. Those DOs, which are not disclosed to the public, are expressly labeled "Restricted." Simultaneously with this response to the Plaintiff's Motion to Compel, the Defendants produce copies of DOs 601.01, 601.02, 601.03, 601.04, 608.01, 608.02,

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608.03, 804.01, 804.02, 804.03, and 804.04. The Defendants refuse to produce DOs 601.05-601.12, 608.04-608.09, all of 706, and 804.05-804.08 because disclosing this information to any one in the public would jeopardize the ADC's ability to maintain the safe and secure operation of its facilities. c. List of CO III Jennifer Thelen's visits to Rynning Unit from 2002 to the present As Defendant Stewart stated in his response on April 4, 2005, this request is overly broad and not calculated to lead to the discovery of admissible evidence. The Plaintiff's claim against James is that he maced the Plaintiff on May 1, 2003, in retaliation against the Plaintiff because of an earlier lawsuit that the Plaintiff had filed against Thelen, who apparently is a fellow ADC correctional officer. Any evidence that Thelen visited the Rynning Unit from 2002 to the present is not relevant to show (1) the existence, and extent, of any relationship between James and Thelen or between Thelen and the other Defendants, (2) that James maced the Plaintiff on May 1, 2003, in retaliation for a lawsuit that the Plaintiff had filed against Thelen, or (3) that any of the other Defendants filed false reports because they were friends with Thelen and acted in retaliation to the Plaintiff's earlier lawsuit against Thelem. The Plaintiff contends that evidence that Thelen visited the Rynning Unit establishes that she did so for reasons "purely social." However, the

Plaintiff fails to explain how any visitation records (assuming they exist) will show whom Thelen spoke to on these occasions. The Defendants contend that the Plaintiff can fully explore any social relationship that may have existed between Thelen and the Defendants at trial when he questions them under oath. IV. Request for Production of Documents for Defendant Cooper filed January 27, 2005 a. Names and last known physical addresses of the prisoners employed as library workers on May 1, 2003

The ADC does not disclose information that will enable one inmate to contact another inmate because this would jeopardize the safety and security of its facilities, given

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that the Plaintiff may have other reasons for obtaining information regarding the whereabouts of those inmates. For example, the Plaintiff could be acting on behalf of a prison gang to obtain this information or plan on selling this information to a prison gang. This information potentially could lead to the death or physical harm of another inmate. Furthermore, the Plaintiff will have a full opportunity at trial to question Defendant Cooper about her ability to view the incident that occurred between the Plaintiff and Defendant James on May 1, 2003, from her vantage point in the library. Only Cooper has the personal knowledge to testify what she observed on that date and whether she could view the incident from the library. V. Request for Production of Documents for Defendant James filed January 27, 2005 a. All medical records on Defendant James for alleged May 1, 2003 injuries

On December 16, 2005, Defendant James produced the ADC medical records related to the incident on May 1, 2003. (Dkt. 105.) VI. Request for Production of Document for Defendant Luna filed January 27, 2005 a. All documents created by Defendant Luna in investigating the Plaintiff's allegations of abuse by officers

In his letter dated October 31, 2005, to Defense counsel (see Attachment A), the Plaintiff requested the following: Check my Inmate Letters in my Master Record File and 20 Institutional Record files sent 2002 and 2003, and produce all Inmate Letters that I wrote 21 reporting officer misconduct. In response, Defendant Luna produced all Inmate Letters 22 from the Plaintiff and responses for 2002 and 2003 contained in his Master Record File 23 and Institutional Record files. 24 Moreover, in response to a telephonic conference conducted on May 11, 2005, in which 25 the Plaintiff requested any investigative documentation produced by Luna pertaining to the 26 May 1, 2003, incident, Luna informed the Plaintiff, on August 2, 2005 that no documentation existed. (Dkt. 77.) According to the ADC, no other documents exist.

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1 2 3 4 named Lt. Lewis because Lewis is one of the people that Defendants Luna and Stewart 5 failed to protect the Plaintiff from. Defendant Luna objects to this request on several 6 grounds. This is the first time that the Plaintiff has brought up the name Lt. Lewis since he 7 filed this discovery request on January 27, 2005. He did not request this information 8 during the telephonic discovery conference on May 11, 2005, and did not request this 9 information during the parties' telephonic discovery conference with the Court on October 10 5 and October 20 of 2005. This request for discovery also is overly broad and unduly 11 vague. The Plaintiff fails to specify the dates of any conduct by Lt. Lewis which may have 12 lead to an investigation. In addition, the Plaintiff failed to adequately identify Lt. Lewis. 13 According to the ADC, 23 correctional officers have the last name of Lewis. 14 VII. 15 16 17 18 documents exist. The Plaintiff assumes that the documentation must exist according to DO 19 601. The Plaintiff is may be correct that the documentation should have been generated in 20 accordance with DO 601. However, even if the documentation had existed at the point the 21 investigation was conducted, this does not necessarily mean that the documentation still 22 existed at the time the Plaintiff requested a copy of the paperwork in the spring of 2005. 23 Defense counsel can verify that he sought a copy of any such documentation from the 24 ADC and was informed that no documentation exists. 25 26 /// a. Produce all fact-finding documents created into Plaintiff's office abuse allegations Request for Production of Documents for Defendant Luna filed May 12, 2005 b. All investigative documents/files of any investigations conducted regarding Defendant Emore, James, and Lt. Lewis, whether formal or informal

The Plaintiff contends that he needs any investigative documents regarding a person

As Defendant Luna informed the Plaintiff on August 10, 2005 (Dkt. 81), no such

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VIII. Defendant Schriro's Response to Plaintiff's Interrogatories filed May 12, 2005 a. Interrogatory no. 20

At issue in Count I is whether Defendants Luna and Stewart acted with deliberate indifference to the Plaintiff's safety. In this interrogatory, the Plaintiff wishes for

Defendant Schriro to state whether various behaviors were abuse would be considered abuses of power in violation of ADC policies. The answer to that question is not relevant to answering the material issues in Count I and is not likely to lead to the discovery of admissible evidence. The Plaintiff offers no explanation for why the answer to that interrogatory is relevant and admissible. b. Interrogatory no. 21

See response above regarding Interrogatory no. 20. c. Interrogatory no. 24

The Plaintiff contends that any historical evidence of Defendant Schriro failing to perform her jobs involving inmates is relevant to Count I. However, Count I only pertains to Defendants Stewart and Luna. See Screening Order (Dkt. 4). Defendant Schriro was only substituted in her official capacity. (Dkt. 4.) In his Complaint, the Plaintiff only claimed that Defendants Stewart and Luna failed to protect him against the abuse of subordinates. See Complaint, generally (Dkt. 1). Whether Defendant Schriro has been previously suspended is not relevant to this matter and is not likely to lead to admissible evidence. IX. Defendant Stewart's Response to Plaintiff's Interrogatories filed May 12, 2005 a. Interrogatory no. 12

The Plaintiff contends that a history of Defendant Luna's performance in the past is relevant and admissible evidence. Whether Luna was investigated in the past for not performing his job duties is not relevant to determining whether he acted with deliberate indifference to the Plaintiff's safety. The Defendants have produced all existing

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paperwork regarding Luna's involvement with the Plaintiff and his complaint regarding abuse by ADC staff. b. Interrogatory no. 13

The Defendants object to this interrogatory because it is unduly vague and ambiguous. Each facility in the ADC has a different person in charge of maintaining investigation materials. The Plaintiff claims that this information is relevant "due to the current situation of the missing may 1, 2003, videotape." (Motion to Compel at 16-17.) The Defendants have previously noted that they have produced the only known existing videotape regarding the May 1, 2003. Even it were possible to identify all of the people who might have had custody of the videotape from May 1, 2003, to the present, it would still not be possible to recreate the alleged missing footage of the videotape. If this matter proceeds to trial, the Plaintiff may argue to the jury that they may draw reasonable inferences from the fact that the Defendants were unable to produce the missing footage of the videotape. RESPECTFULLY SUBMITTED on this 17th day of January, 2006. TERRY GODDARD Attorney General s/ J. Randall Jue J. RANDALL JUE Assistant Attorney General Attorneys for Defendants

Original e-filed this 17th day of January, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, Arizona 85003

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COPY mailed on the same date to: Andre Almond Dennison, # 143931 ASPC ­ Lewis ­ Morey Unit P.O. Box 3300 Buckeye, Arizona 85326 Plaintiff Pro Per s/ C. Jordan Secretary to J. Randall Jue
IDS04-0294/RM G2004-20632 942655

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