Free Reply to Response to Motion - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 PAUL E. CARTER (014140) 3 Assistant Attorney General 177 N. Church Avenue, Suite 1105 4 Tucson, AZ 85701-1114 (520) 388-7128 Fax (520) 628-6050 5 [email protected] 6 Attorneys for State Defendants 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV 03-2179-PHX-PGR (VAM) SUPPLEMENTAL STATEMENT OF FACTS

9 BARRY NORTHCROSS PATTERSON, 10 11 v. 12 CO MACIEL, et al., 13 14 15 Defendants. Plaintiff,

Defendants Maciel, Klein, Schriro, Walker, and Schmier, submit the following

16 Supplemental Statement of Facts: 17 1. Arizona Department of Corrections ("ADC") Department Order ("DO") Appendix A to DO 909 sets forth a

18 909, Inmate Mail/Property and Stores.

19 comprehensive list of property which inmates may possess. Inmates' personal property 20 generally includes not only unique, durable goods such as a television or radio but also 21 items such as different magazine titles and issues, correspondence or personal papers, 22 photographs, personal hygiene products, and postage stamps, none of which lend 23 themselves to specific identification for purposes of recording receipt, inventory, 24 confiscation, consumption, or release. Declaration of A. Maciel, annexed as Exhibit 1, at 25 ¶ 3. 26 2. Absent certain specific circumstances, such as possession of quantities in

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1 excess of the number allowed by policy or evidence that the items do not belong to the 2 possessing inmate, items such as magazines, postage stamps, and photographs are 3 authorized for inmates to possess in their housing area. Inmates are allowed a maximum 4 of 20 postage stamps and 5 magazines in their possession at any given time. There is no 5 expressed limit per policy on the number of photographs an inmate may possess. Id. 6 at ¶ 4. 7 3. When a piece of inmate property is altered in such a way as to make its

8 ownership unascertainable, it is considered altered contraband, and cannot be retained by 9 the inmate. Id. at ¶ 5. 10 4. As a CO II, Defendant Maciel's duties include searching inmates' living

11 spaces to verify compliance with DO 909 and to ensure that the inmates are not in 12 possession of contraband. Id. at ¶ 6. 13 5. On December 3, 2002, Defendant Maciel conducted a search of inmate

14 Patterson's (ADC#117045) dormitory living space at the South Unit (the "Search"). Id. 15 at ¶ 7. 16 6. Patterson was housed in an open-style dormitory at the time of the search in

17 which individual inmates are assigned living spaces separated on the sides by low 18 partitions, but no doors or barriers to entry. Accordingly, any items not stored in an 19 inmate's personal padlocked locker are subject to tampering or theft by other inmates. Id. 20 at ¶ 7. 21 7. In the course of the search, Defendant Maciel found a magazine from which

22 the name and address label had been removed. Accordingly, Defendant Maciel could not 23 determine the legitimate owner of the magazine. Id. at ¶ 8. 24 8. It is Defendant Maciel's custom and practice to "flip" or "fan" through the If he had

25 pages of any magazine which he encounters in the course of a search. 26 2
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1 discovered photographs and/or stamps (within the limits permitted by policy) within the 2 pages of the magazine which he removed from Patterson's possession as contraband, 3 Defendant Maciel would have disposed of only the magazine and not those items. Id. at 4 ¶ 9. 5 9. If photographs and stamps were indeed within the magazine, Defendant

6 Maciel was unaware of that fact at the time he disposed of it. Id. at ¶ 10. 7 8 9 10 11 12 13 Copy of the foregoing mailed this _7____ day 14 of October, 2005, to: 15 Barry N. Patterson, # 117045 ASPC-Eyman-Meadows Unit 16 P.O. Box 3300 Florence, AZ 85232-3300 17 _s/ajs_______________________ 18 IDS04-0059/G2003-04439/928222 19 20 21 22 23 24 25 26 3
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RESPECTFULLY SUBMITTED this _7___ day of October, 2005. TERRY GODDARD ATTORNEY GENERAL s/Paul E. Carter PAUL E. CARTER Assistant Attorney General Attorneys for State Defendants