Free Reply in Support of Motion - District Court of Arizona - Arizona

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Terry Goddard Attorney General Michele L. Forney, Bar No. 019775 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants

7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Sgt. Carr, et al., Defendants. Defendants Carr and Stewart hereby reply in support of their Motion to File Under Seal Certain Exhibits [Dkt. 138]. Defendants sought leave to file under seal documents pertaining to another inmate who is not a party in this lawsuit in support of their Motion for Summary Judgment [Dkt. 136]. Specifically, Defendants moved to file under seal the following: C. Confidential AIMS report for the "Other Inmate," who Plaintiff alleges was similarly situated to Ward, yet treated differently; D. Disciplinary Report for December 10, 2002 for the Other Inmate; Timothy Lee Ward, No. CV 03-2159 PHX ROS (JRI) Plaintiff, DEFENDANTS' REPLY IN SUPPORT OF MOTION TO FILE UNDER SEAL CERTAIN EXHIBITS

E. Inmate Disciplinary Hearing Waiver dated December 19, 2002 for the Other Inmate; F. Result of Disciplinary Hearing dated December 31, 2002 for the Other Inmate; G. Institutional Classification Referral Notice dated January 14, 2003 for the Other Inmate; and H. Reclassification Score Sheet dated January 16, 2003 and approved by Central Classification on January 31, 2003 for the Other Inmate.
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(See Dkt. 137 at ¶¶ 114-117.) In his Response, Plaintiff argues that Defendants should not be permitted to file these documents under seal without giving him a copy because Defendants had earlier taken the position that documents under seal are still exchanged between the parties. Plaintiff refers to his own motion to file documents under seal [Dkt. 103] and Defendants response to that motion [Dkt. 104]. At that time in the case, discovery had not yet begun and Plaintiff sought an order to have Defendants file unidentified documents under seal. (Dkt. 103.) In his motion, Plaintiff recognized that it is illegal for him to possess documents concerning other inmates. (Id.) Defendants agreed with that statement, but expressed concern that Plaintiff was really seeking in camera review. (Dkt. 104.) To that end, Defendants explained that discovery documents are exchanged between the parties and not filed with the court. (Id.) Thus, Defendants interpreted Plaintiff's request as an effort to circumvent the statutory prohibition against inmates possessing documents concerning other inmates. See A.R.S. § 31-221. Contrary to Plaintiff's assertion, Defendants did not "strongly disagree" with filing documents under protection for the Court's view only, but objected to Plaintiff's overbroad request that was not tied to specific documents. The Court denied Plaintiff's Motion as premature. (Dkt. 107.) At this time, Defendants seek this Court's review of the specific documents identified above in connection with their Motion for Summary Judgment. The documents are confidential records relating to an inmate who is not a party to this lawsuit and who has never waived any confidentiality rights. Furthermore, whether the relief sought is "filing under seal" or "in camera review," Plaintiff is statutorily barred from possessing information about other inmates. To the extent that Defendants need to amend their Motion to state that they request leave to file the specified documents under seal for the Court's in camera review, Defendants seek leave to do so. For the foregoing reasons and those stated in the Motion, Defendants request this Court grant the Motion to File Under Seal Certain Exhibits. 2
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RESPECTFULLY SUBMITTED this 5th day of May, 2008. Terry Goddard Attorney General

s/Michele L. Forney Michele L. Forney Assistant Attorney General Attorneys for Defendants Original e-filed this 5th day of May, 2008, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232

s/Colleen S. Jordan Secretary to: Michele L. Forney IDS04-0306/RSK:G04-20640 #199858

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Case 2:03-cv-02159-ROS-JRI