Free Statement - 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
When referring to documents previously filed with this Court, Defendants refer to the page numbers stamped on the bottom by electronic filing rather than any other internal numbering.
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Timothy Lee Ward, No. CV 03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Carr, et al., Defendants. Pursuant to Fed. R. Civ. P. 56(c) and Local Rule 56.1, Defendants Terry Carr and Robert Stewart submit the following statement of facts in support of their motion for summary judgment. 1. Ward is a convicted felon who was committed to the Arizona Department DEFENDANTS' SEPARATE STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

of corrections ("ADC") in 1999. (Ward's Arizona Inmate Management System ("AIMS") Report, attached as Attachment 1 to Declaration of Robert Stewart, attached hereto as Exhibit A.) 2. He is currently housed at the Arizona State Prison Complex ("ASPC")-

Florence, South Unit. (Exhibit A, Attachment 1.) 3. The allegations in his complaint arose while he was housed in ASPC-

Eyman, Rynning Unit in 2002. (Second Amended Complaint [Dkt. 75] at p.1.1)

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4.

In his two-count Second Amended Complaint, Ward alleged that

Defendants Robert Stewart and Terry Carr violated his equal protection and due process rights. (Id. at pp. 3-5; see also Order filed 10/2/07 [Dkt. 95] at pp. 8-11.) 5. Stewart has been employed by the Arizona Department of Corrections

("ADC ") since August 2000 and currently holds the position of Warden for the Arizona State Prison Complex (Arizona State Prison Complex)-Eyman. From 2002 to 2004, he was the Deputy Warden for Operations for the Rynning Unit at ASPC-Eyman. (Exhibit A at ¶ 1.) 6. Carr was employed by the Arizona Department of Corrections ("ADC ")

from 1991 to 2006. From 2000 until May 2003, she held the position of Special Security ("SSU") Sergeant at Arizona State Prison Complex ("ASPC")-Eyman Rynning Unit. (Affidavit of Terry Carr, attached hereto as Exhibit B, at ¶ 1.) 7. In Count I, Ward alleged that Carr violated his rights by (1) firing him

from his job; (2) moving him to a different yard; and (3) placing him in detention because he is a homosexual. (Second Amended Complaint [Dkt. 75] at pp. 3-4.) 8. In Count II, Ward alleged that Stewart violated his rights by putting him

"in the hole" for six months because he is a homosexual. (Id. at p. 5.) 9. It is not clear from Ward's Second Amended Complaint whether he

intended to sue Defendants Carr and Stewart in both their individual and official capacities. (Id. at pp. 1-7.) 10. He claims that he suffered extreme depression and mental anguish as a

result of the Defendants' actions. (Id. at pp. 3, 5.) 11. He seeks nominal in the amount of $10,000 from each Defendant and

punitive damages in the amount of $100,000 from each Defendant and reimbursement of his court costs. (Id. at p. 7.) 12. In October 2002, Ward was housed in Rynning Unit, Building 4, Baker

Pod. (Exhibit A, Attachment 1.) 2
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13.

In 2002, Rynning Unit was a level 4 (high-medium) custody yard that

houses sex offenders only. (Exhibit B at ¶ 4.) 14. On or about October 25, 2002, Carr, whose job duties included

investigation of potential security and safety threats, learned that Ward, had nude photos of his cellmate in his possession. (Exhibit B at ¶¶ 3, 5.) 15. 16. 17. One photograph was found during a routine mail scan. (Exhibit B at ¶ 5.) Ward had another similar photograph in his cell. (Id.) The photographs were confiscated and Carr conducted an interview of

Ward regarding the photographs. (Id.) 18. During the investigation of the photograph incident, Inmate Ward and his

cellmate were separated. (Exhibit B at ¶ 12.) 19. During her interview of Ward, Carr explained to him that the photographs

were not allowed because they were contraband. (Exhibit B at ¶ 6.) 20. Nude photographs of any kind were contraband unless contained within an

approved magazine and had not been altered in any way. (Id.) 21. There was an extra concern because the photographs were of Ward's

cellmate. (Exhibit B at ¶ 7.) 22. Because Rynning Unit is a sexual predator unit, there was a concern that

the photographs represented predatory material. (Id.) 23. 24. Ward's cellmate had just turned eighteen and was new to the system. (Id.) He did not realize his vulnerability by allowing his cellmate to possess the

nude photographs. (Id.) 25. The inmates housed in Rynning Unit were required to participate in

programming to learn not to participate in sexually predatory behavior. (Exhibit B at ¶ 8.) 26. Inmates were monitored to ensure compliance with the program. (Id.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id.)

27.

When Carr informed Inmate Ward that he was not allowed to keep the

photographs, he became very upset and argumentative. (Exhibit B at ¶ 9.) 28. Carr also interviewed Ward's cellmate and educated him about his risks in

allowing other inmates to possess nude photographs of him. (Exhibit B at ¶ 10.) 29. 30. After learning of his risks, he asked to be separated from Ward. (Id.) He was nervous and didn't realize the position he had put himself into.

31. 32.

Carr recommended that the inmates be separated. (Exhibit B at ¶ 11.) Carr informed the Count Movement Officer, who started to look for an

available bed. (Id.) 33. She also informed the SSU Officer, Lieutenant, Chief of Security, and DW

Stewart of her recommendation. (Id.) 34. If any one of them had had a problem with the recommendation, the

movement would not have occurred. (Id.) 35. Carr had no final control over the decision whether Ward or his cellmate

would be moved. (Id.) 36. On October 25, 2002, Ward was transferred to Building 6 in ASPC-Eyman

Rynning Unit. (Exhibit A, ¶¶ 3-4 and Attachment 1; Exhibit B at ¶ 13.) 37. His classification did not change and he remained eligible for work.

(Exhibit A, ¶ 4; Exhibit B, ¶ 13.) 38. Inmates housed in different wings of Rynning Unit had different

opportunities to work particular jobs. If an inmate had a particular job when housed on one wing, he may not be able to work at that same job, if he was transferred to a different wing. (Exhibit B, ¶ 14.) 39. 40. Carr did not fire Ward from his job. (Exhibit B, ¶ 15.) Department Order ("D.O.") 804 governs inmate behavior control,

including the placement of inmates into detention units. (Exhibit A, Attachment 2.) 4
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id.)

41.

Specifically, D.O. 804.01 provides that wardens and deputy wardens may

place inmates in detention status as necessary for various reasons, including ensuring the safe, secure and orderly operation of a prison or facility. In the absence of the warden or deputy warden, security shift commanders shall make detention placements in accordance with D.O. 804 when an emergency situation warrants such placement. (Id.) 42. Director's Instruction (D.I.) #6 governs the Inmate Discipline System. D.I.

#6 defines Detention as follows: 5.3 Detention ­ For the purpose of this policy, a temporary placement used to segregate inmates for one of the following purposes: 5.3.1 Investigative Detention ­ A temporary placement pending completion of an investigation. 5.3.2 Disciplinary Detention ­ A temporary placement that is ordered as a penalty upon a guilty finding for a major disciplinary violation. (Exhibit A, Attachment 3.) 43. On November 6, 2002, Carr was approached by two inmates who indicated

that they wanted to speak to her and Corrections Officer Crystal Stitt. (Exhibit B, ¶ 16.) 44. Carr conducted interviews of the two inmates, who had provided good

information in the past as confidential informants. (Id.) 45. These two inmates informed Carr that Ward was recently counseled, was

upset about the situation and was planning to "stick" Officer Stitt and Sgt. Carr. (Id.) 46. Carr verbally notified Deputy Warden Stewart before leaving for the day.

47.

Because the Unit was short staffed, a shift commander was assigned to

move Inmate Ward to the Detention Unit. (Id.) 48. Under standard procedure, Carr had no further contact with Inmate Ward

after informing the chain of command of the alleged threats he had made against her. (Exhibit B, ¶ 17.)

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49.

Whenever there is a threat of an assault on an ADC staff person by an

inmate, the parties are immediately separated and have no further contact. (Id.) 50. Carr had no responsibility for Ward's placement into Meadows Complex

Detention Unit. (Exhibit B, ¶ 18.) 51. On Thursday, November 7, 2002, Ward was transferred to Meadows

Complex Detention Unit to ensure the safety of Sergeant Carr, Officer Stitt and other ADC staff. (Exhibit A, ¶ 8.) 52. staff. (Id.) 53. Under routine policy and procedure, the warden, the deputy warden or the Ward was placed in detention for a 2A investigation for threats against

assistant deputy warden would have been notified verbally of the inmate's placement in detention before it occurred. (Id.) 54. On the same day, Carr wrote up a report summarizing her interview with

the two confidential informant inmates. She submitted that report to Deputy Warden Stewart and the Chief Security Officer. (Exhibit B, ¶ 19; see also Exhibit B, Attachment 1.) 55. 56. Monday, November 11, 2002 was a national holiday. (Exhibit A, ¶ 9.) On Tuesday, November 12, 2002, Stewart reviewed the Lock Up Packet

documentation regarding Ward's placement in Investigative Detention. (Id.) 57. Stewart reviewed Carr's report that indicated that two confidential

informant inmates had approached her and indicated that Ward was upset and had threatened to "stick" Corrections Officer Crystal Stitt and herself. (Exhibit A, ¶ 10.) 58. After reviewing the documentation, Stewart signed the Assignment to

Investigative Detention-2A Form. (Exhibit A, ¶ 11.) 59. On November 7, 2002, Ward received a major disciplinary charge for

disobeying an order in relation to failing to produce a urine sample for a routine drug test required for admission into CDU. (Exhibit A, ¶ 13.) 6
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60.

Ward was served notice of the charge and a hearing was scheduled for

November 19, 2002. (Id.) 61. Due to excessive caseload, the Disciplinary Coordinator postponed the

hearing to November 22, 2002. (Id.) 62. 63. Ward requested no witnesses and plead guilty. (Id.) Ward was given notice of disciplinary sanctions of 10 days detention

starting from November 23, 2002 and 30 days loss of privileges from December 6, 2002 to January 5, 2003. (Id.) 64. The Disciplinary Sanction Notice also indicated that Ward should be

reclassified. (Id.) 65. On December 4, 2002, he was again assigned to investigative detention for

continuation of the investigation of the alleged threats of assault on Sgt. Carr and Officer Stitt. (Exhibit A, ¶ 14.) 66. On December 6, 2002, Ward wrote an Inmate Letter to Warden Goldsmith

indicating that he did not know why he was placed in Investigative Detention. (Exhibit A, ¶ 15.) 67. On December 19, 2002, Criminal Investigations Unit (CIU) conducted its

investigation of Inmate Ward's alleged threats against Sgt. Carr and Officer Stitt. (Exhibit A, ¶ 16.) 68. CIU Investigator Douglas Newman interviewed Carr, who related her

recollection of the incident regarding the nude photographs and the information from the two confidential inmate informants regarding threats of assault against Officer Stitt and her. (Exhibit B, ¶ 20.) 69. Investigator Newman also interviewed Inmate Ward. After Inmate Ward

assured Investigator Newman that he did not intend to hurt anyone, Investigator Newman concluded his investigation and declined to pursue criminal charges against Inmate Ward. (Exhibit A, ¶ 16.) 7
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70. 71.

The case was closed on January 27, 2003. (Id.) On December 24, 2002, Inmate Ward received another disciplinary

citation. This one was for a minor violation for tampering with security device. His punishment was 30 days loss of privileges. (Exhibit A, ¶ 17.) 72. On December 26, 2002, Warden Goldsmith submitted an Inmate Letter

Response, stating the following: I am in receipt of your inmate letter dated 12-06-02. You were placed in Meadows CDU on 11-07-02 for threatening staff. After the preliminary investigation was concluded, the information was forwarded to CIU. CIU staff conducted a follow-up investigation. You should have been interviewed by CIU staff at the time of the generation of this letter. Following their investigation, you will be notified of the outcome. (Exhibit A, ¶ 18.) 73. On January 4, 2003, Ward submitted an Inmate Letter to Stewart, stating: On 03 Jan 03 I was told by CO III Eccles that you are requesting an admin reclass. I am trying to understand you feel my placement at Rynning is inappropriate, due to alleged "threats to staff." I would like to ask you to reconsider this reclass. I never received any disciplinary action and CIU found no criminal actions. Please look at my record. Begfore all these allegations I have received one ticket (06 Mar 00) for failure to produce UA. I have never made threats to anyone, as I feel this investigation shows. I feel this reclass is wrong as the only option is to lock me down in SMU. I did nothing wrong. Again, please look at my record. I am not a violent person. (Exhibit A, ¶ 19.) 74. A, ¶ 19.) 75. Also on January 4, 2003, Ward submitted an Inmate Letter to Warden Stewart did not receive this Inmate Letter until January 14, 2003. (Exhibit

Goldsmith, in which he made almost the same statement. That Inmate Letter was stamped received by the Warden's Office on January 13, 2003. (Exhibit A, ¶ 20.)

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76.

On January 6, 2003, Stewart filled out an Institution Classification Referral

Notice, Form 801-2P, in which Stewart requested administrative review of Ward's classification because of his behavior. (Exhibit A, ¶ 21.) 77. Stewart believed that the threats Ward made against SSU Sgt. Carr and

Officer Stitt were credible and felt it was inappropriate for Ward to be returned to the Rynning Unit at that time. (Id.) 78. Ward was provided a copy of this notice and informed in writing that he

was permitted to appear at the hearing and call witnesses. (Id.) 79. 80. 81. 82. Ward waived the five day waiting period to prepare for the hearing. (Id.) Thus, the hearing was held on January 6, 2003. (Exhibit A, ¶ 22.) Ward was present for the hearing, but made no comments. (Id.) Carr had no authority or responsibility with respect to Ward's

reclassification. (Exhibit B, ¶ 18.) 83. The Institutional Classification Committee ("ICC") reviewed and approved

my recommendation for facility override and placement in ASPC-Eyman SMU I based on Ward's behavior in threatening staff. (Id.) 84. On January 13, 2003, the Institutional Administrator approved ICC's

recommendation, noting that Ward had threatened to use "shank" on SSU Supervisior and Count/Movement Officer. (Id.) 85. Central Classification approved Ward's placement in SMU I on January

24, 2003. (Id.) 86. Ward was transferred to SMU I on February 12, 2003. (Exhibit A,

Attachment 1.) 87. On January 6, 2003, the same day as the classification hearing, Ward

submitted a Classification Appeal to the Administrator of Offender Services Bureau. (Exhibit A, ¶ 23.)

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88.

On January 7, 2003, Ward submitted an Inmate Letter to CO III Eccles

stating the following: Informal Attempt ­ D.O. 802.08.1.2. Since Sgt. Carr, on 24 Oct. 02 found out that I was a homosexual prisoner, she has been very bias toward me. She moved me and fired me from the kitchen. Then on 05 Nov. 02, she made false allegations of threats to her as well as CO II Stitt. Now I am being moved to SMU I because of her. Since Nov. 02 she has done this to three other gay prisoners. My move has nothing to do with sound correction decision. It needs to be noted as well that detectives with CIU found these allegations false and refused to press criminal charges. And I did not receive any disciplinary actions for threats. I did receive a major and minor ticket since all this started where before this it had been 38 months since a ticket. (Exhibit A, ¶ 24.) 89. On January 15, 2003, Stewart responded to the inmate letter addressed to

him, stating: "I am in receipt of your inmate letter dated 01/04/03. You have an administrative review and that review has been forwarded to Central Office. Arizona Department of Corrections (ADC) seeks to ensure that ADC Staff and inmates are under our care and control and provided a safe environment. Threats against that safety are taken very seriously." (Exhibit A, ¶ 25.) 90. On January 27, 2003, Warden Goldsmith responded to the inmate letter

addressed to him, stating that ICC had recommended Ward's placement in SMU I, that the final approval had not yet been completed, and that therefore Ward was not yet scheduled to be moved to SMU I. (Exhibit A, ¶ 26.) 91. On January 29, 2003, Ward submitted an Inmate Letter to Warden

Goldsmith, claiming that he was being discriminated against because he is a homosexual prisoner. (Exhibit A, ¶ 27.) 92. On February 1, 2003, Ward submitted a grievance regarding his belief that

Sgt. Karr had treated him unfairly because he is a homosexual. (Exhibit A, ¶ 28.) 93. On February 10, 2003, Acting Warden M.O. "Russ" Savage responded to

Ward's January 29th letter, stating: 10
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31.) 96. A, ¶ 32.) 97.

I am in receipt of your inmate letter dated January 29, 2003, regarding discrimination. Upon review of this situation, it has been determined that you were classified with a request for a facility override based on your behavior, i.e. threat to shank an officer. The facility override was approved by the Offender Services Bureau/Classification. Your claim of discrimination based on your sexual preference is unfounded. (Exhibit A, ¶ 29.) 94. On March 5, 2003, Assistant Deputy Warden Lewis responded to Ward's

grievance, stating the following: An investigation into your allegations against Sgt. Carr and COII Stitt was conducted. The issue began when you received nude photos from inmate [redacted]. The photos were unauthorized and considered contraband. You were argumentative and belligerent toward staff. However, you were not issued any disciplinary. Inmate [redacted] and you were separated due to the security risks involved if an unauthorized relationship existed. Again, you were argumentative and initially you refused to move when directed. You eventually complied with the directive to move. Information was received you were making threats against Sgt. Carr and COII Stitt as a result of not receiving the pictures and being moved. Based on your behaviour and threats toward staff, the Rynning Unit management team made the decision to remove you from Rynning Unit and place you into the Meadows CDU. All decisions were based on security concerns. Neither Sgt. Carr no COII Stitt has the authority to place you into CDU without approval from the management team. At no time was any decision made due to your sexual preferences. (Exhibit A, ¶ 30.) 95. On March 5, 2003, Ward submitted a reclassification appeal. (Exhibit A, ¶

On March 14, 2003, Ward submitted an inmate grievance appeal. (Exhibit

On April 8, 2003, Donna H. Clement, Administrator for Offender Services

Bureau issued an Inmate Classification Appeal Response. Apparently, a classification referral notice dated September 4, 2002 was incorrect and was being rectified by Ward's being transferred back to Rynning Unit when a bed became available. (Exhibit A, ¶ 33.) 11
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98.

On April 18, 2003, Charles Ryan, Acting Director, responded to Ward's

Inmate Grievance Appeal, stating: In your grievance filed at the Meadows Unit, you claim that Sergeant Carr is very biased towards you and has treated you unfairly because you are gay. Your grievance appeal, which was received in Central Office on April 10, 2003, has been reviewed. Be advised, you have failed to substantiate your allegations against Sergeant Carr. Also note, Staff's initial decision to separate you from inmate [redacted] was for security reasons. Your removal from the general population and placement in isolation was because you became belligerent, argumentative and refused a direct order. This is a threat to the safe and secure order of the unit and will not be tolerated. Your request is denied. No further action is ordered in this matter. (Exhibit A, ¶ 34.) 99. Ward was transferred to Rynning Unit, Building 7 on May 19, 2003.

(Exhibit A, ¶ 35.) 100. 101. In Rynning Unit, inmates are housed in two-man cells. (Exhibit A, ¶ 36.) Inmates have an opportunity to have recreation or go to the complex

library three times a week. (Id.) 102. 103. Inmates may shower on the same days as recreation/library access. (Id.) Inmates have three meals a day on weekdays and two meals a day on

weekends. (Id.) 104. Visitation, telephone access and permitted appliances and personal

property depend on the inmates' individual classification. (Id.) 105. The Meadows Complex Detention Unit provides similar living conditions.

(Exhibit A, ¶ 37.) 106. following: · Meals at the standard meal hours and in the same quality and quantity as that served to the general population, including special medical or religious diets. · Visits by health care staff three times a week. 12
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D.O. 804.01 § 1.2 provides that inmates in detention shall have the

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· Access to courts, legal materials and legal reference materials. · Opportunity to shower and shave a minimum of three days a week. · Personal property commensurate with the inmate's detention status and classification. · Recreation for a minimum of one hour, three days a week. · Visitation privileges · Telephone privileges

When an inmate is in administrative detention pending an investigation, he

is entitled to the same privileges he would be entitled to in his regular housing location. (Exhibit A, ¶ 38.) 108. If, on the other hand, an inmate is in detention as part of a punishment for a

disciplinary charge, the inmate may also have a temporary loss of privileges. (Id.) 109. Stewart was not aware that Ward is a homosexual until he was served with

this lawsuit. (Exhibit A, ¶ 39.) 110. Stewart's actions were taken to preserve security and safety for inmates

and ADC personnel within Rynning Unit. (Id.) 111. Carr does not recall when she became aware that Ward is a homosexual.

(Exhibit B, ¶ 21.) 112. Carr's actions were taken to preserve security and safety for inmates and

ADC personnel within Rynning Unit. (Id.) 113. Ward is not eligible for parole. He is also not eligible to earn release

credits. (Exhibit A, ¶ 40.) 114. Ward alleges that another inmate (the "Other Inmate") who allegedly

threatened ADC personnel was treated differently because he is straight. (Second Amended Complaint [Dkt. 75] at p. 4.) 115. With respect to the Other Inmate, the threatened staff member was present

when the alleged threat occurred, no confidential informants were involved, and no investigation by CIU was conducted. (Confidential AIMS Report of the Other Inmate, 13
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attached as Sealed Exhibit C2; Inmate Disciplinary Report No. 02-A12-1367, attached as Sealed Exhibit D; .) 116. The Other Inmate was cited with a major disciplinary violation and found

guilty after a hearing, at which he waived his right to appear. (Sealed Exhibit D; Inmate Disciplinary Hearing Waiver, attached as Sealed Exhibit E; Result of Disciplinary Hearing, attached as Sealed Exhibit F.) 117. The Other Inmate was also reclassified after the incident involving a threat

to ADC personnel. (Institution Classification Referral Notice, attached as Sealed Exhibit G; Reclassification Score Sheet, attached as Exhibit H.) RESPECTFULLY SUBMITTED this 15th day of April, 2008. Terry Goddard Attorney General

s/Michele L. Forney Michele L. Forney Assistant Attorney General Attorneys for Defendants

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Defendants are filing a Motion to File Under Seal Certain Exhibits concerning Exhibits C through H this same day.

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Original e-filed this 15th day of April, 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 #185794

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