Free Statement - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General State Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ronald Flood, Plaintiff, v. Charles Ryan, et al., Defendants.

No: CV03-2050-PHX-DGC (VAM) STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT

Defendants1, pursuant to Rule 56.1, of the Local Rules of Practice of the District Court for the District of Arizona, submit the following undisputed material facts in support of their Second Motion for Summary Judgment: 1. Plaintiff, Ronald Flood (ADC #067127) is an inmate in the custody of the (Flood's Arizona Inmate Management

Arizona Department of Corrections ("ADC").

System ("AIMS") Report is available for the Court's in camera review.) Flood was validated as a member of the Aryan Brotherhood on November 7, 2002. (Dkt. 25 at ¶ ¶ 8-

1

Dora Schriro, Conrad Luna and Barbara Shearer.

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13.) On June 6, 2003, he was placed in Arizona State Prison Complex ("ASPC") - Eyman, Special Management Unit ("SMU") II and he is currently placed there. (Dkt. 25 at ¶ 1.) 2. On October 23, 2003, Flood filed a Complaint against Defendants pursuant

to 42 U.S.C. § 1983. (Dkt. 1.) In his Complaint Flood alleges that: (Count 1 against Schriro, Luna and Shearer) his transfer to SMUII for an indefinite period of detention under the STG validation program violated his right to Due Process; (Count II against Schriro and Luna) the conditions of confinement in SMUII, and the psychological and physical effects of those conditions, violate the Eighth Amendment prohibition against cruel and unusual punishment; and, (Count III against Schriro, Luna and Shearer) his placement and continual confinement in SMUII are in retaliation for his exercise of his constitutional right against self-incrimination. (Dkt. 1, pp. 4-7.) Flood seeks declaratory and injunctive relief against Defendants. (Id. at p. 7.) 3. On a June 30, 2005, Defendants filed their Motion for Summary Judgment

(Dkt. 24) and supporting Statement of Facts (Dkt. 25). On August 2, 2005, Flood filed his Motion for Summary Judgment (Dkt. 28) and supporting Statement of Facts (Dkt. 27). 4. By Order dated March 31, 2006, the Court denied in part and granted in part (Dkt. 34.) Defendants' Motion for

Defendants' Motion for Summary Judgment.

Summary Judgment was denied to Plaintiff's exercise claim (Count II). (Id.) However, the motion was granted as to Flood's due process claim (Count I), his other Eighth Amendment claims (Count II), and his retaliation claim (Count III). (Id.) The Court further ordered the Defendants have thirty (30) days to submit a motion for summary judgment as to Flood's exercise claim (Count II). Plaintiff's Motion for Summary Judgment. (Dkt. 34.) (Id.) Finally, the Court denied

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5.

SMU II contains twelve clusters. (Affidavit of Carson McWilliams at ¶ 4,

attached hereto as Exhibit 1.) Each cluster contains six pods, and each pod has ten cells. At the end of each pod is an outdoor exercise area. (Id.) 6. Each outdoor exercise area is twenty-three feet long and eleven feet wide,

with eighteen foot walls. (Id. at ¶ 5.) The walls and floor are concrete. (Id.) 7. The top of each outdoor exercise is covered with a steel fencing. (Id. at ¶ 6.)

The outdoor exercise area is exposed to fresh air and sunlight and in inmate can see the sky through the steel fencing on the top. (See Dkt. 25 ¶ 25; Exhibit 1 at ¶ 6.) During certain times of the year, as well as certain times of the day, the sun is not directly visible from the outdoor exercise area. (Exhibit 1 at ¶ 6.) 8. Only one inmate in allowed into the outdoor exercise area at a time because

of security concerns. (See Dkt. 25 ¶ 25.) Thus, the inmates must use the outdoor exercise area in shifts. (Id.) 9. A staggered schedule is used to set the times for an inmate's outdoor

exercise. (Exhibit 1 at ¶ 7.) The schedule rotates in order to ensure that each inmate has the same opportunity for exposure to the sun while in the exercise area. (Id.) Inmates are advised of their scheduled outdoor exercise time by a monthly SMU-II newsletter which is distributed to all SMU-II inmates. (Id.) The exercise times vary on a day-to-day basis, however each inmate is aware of his scheduled outdoor exercise at least one week in advance. (Id.) 10. Inmates may wear their prison-issued clothing while in the outdoor exercise

area or may purchase "sweat clothing" from the commissary to wear in the outdoor area. (Id. at ¶ 8.) They can wear either their prison-issued sandals or canvas shoes. (Id.) 11. Inmates can purchase sun block from the commissary for protection from the

sun while in the outdoor exercise area. (Id. at ¶ 9.)

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12.

Inmates may engage in meaningful exercise while in the outdoor exercise

area to include calisthenics, running, walking or playing handball. (Id. ¶ 10.) 13.. Flood uses the recreation area regularly to walk and do cardiovascular

exercise. (See Dkt. 25 at ¶ 26.) He also exercises in his cell. (Id.) 14. Prior to December 29, 2005, Flood was provided a maximum of three hours

per week in the outdoor exercise area consisting of three different days of the week for one hour of time. (Exhibit 1 ¶ 11.) 15. Effective December 29, 2005, the ADC increased the hours of inmate

outdoor exercise in Maximum custody units and in CDU and/or Detention Units. (Id. ¶ 12.) Inmates housed in SMU II are now provided outdoor exercise, in the facility

described previously for six (6) hours each week. (Id.) The outdoor exercise occurs on three different days of the week for two hours at a time. (Id.) RESPECTFULLY SUBMITTED this 24th day of April, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M . Bohland Assistant Attorney General Attorneys for Defendants

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Original and one copy filed this 24th day of April, 2006, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Ronald Flood, #067127 ASPC-Eyman-SMU II Post Office Box 3400 Florence, AZ 85232

s/ Catherine M. Bohland Catherine M. Bohland IDS04-0442/RSK:G2003-04659
#955318

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