Free Response - District Court of Arizona - Arizona

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

TERRY GODDARD Attorney General COLLEEN M. AUER Assistant Attorney General State Bar No. 014637 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7698 Fax: (602) 542-7670 [email protected] Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ronald Flood, Plaintiff, v. Dora Schriro, et al., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT No: CV03-2050-PHX-DGC (VAM)

Defendants Schriro, Luna and Shearer submit this response to Plaintiff's Statement of Facts in Support of Plaintiff's Motion for Summary Judgment. FLOOD'S STATEMENT OF FACTS: 1. Disputed that Flood remains in SMUII indefinitely. STG-validated inmates

(with no Correctional Classification Profile changes) who choose to renounce gang membership, successfully debrief and pass a polygraph test are re-classified and housed in SMU I under Protective Segregation, and may be stepped down into placement in a Level 4 protective segregation yard with similar rights as inmates in any general population Level 4 yard. [DSOF at ¶ 19.] /// ///

Case 2:03-cv-02050-DGC-VAM

Document 31

Filed 08/18/2005

Page 1 of 6

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

2.

Object to the Affidavit of Mike James Mahler submitted as part of Exhibit 1

on the grounds that it is inadmissible hearsay and irrelevant to Flood's claims in this action. This is not a class action. 3. Disputed that the ADC's STG policy has been modified at any time relevant

to Flood's claims in this case. Disputed that Defendants intended to indefinitely isolate validated prisoners in SMU 2. STG-validated inmates are housed in SMUII for the safety and protection of ADC staff and other inmates. [DSOF at ¶ 6.] STG-validated inmates can end SMUII confinement by renouncing gang membership, successfully debriefing and passing a polygraph test. [DSOF at ¶ 19.] Object to the introduction and characterization of former Director Stewart's deposition testimony (Exhibit 3) given in another matter regarding Department Order 806 and protective segregation inmates as incomplete, inadmissible hearsay and irrelevant to Flood's claims in this matter. 4. Disputed that Plaintiff remains in SMU2 due to the requirements of D.O.

806. Plaintiff remains in SMUII because he was validated as a member of the Aryan Brotherhood based on four pieces of evidence and has refused to renounce gang membership and debrief. [DSOF at ¶¶ 8-22]. 5. Disputed on the grounds that it constitutes improper legal conclusions and

improperly cites Koch, a case that has been vacated as moot. 6. Object to this discussion regarding the conditions of SMUII when it first

opened as wholly unsupported by evidence and irrelevant to Flood's claims in this matter which are based on the constitutionality of current confinement conditions in SMUII. 7. Object to this discussion regarding staff training to allegedly treat "all SMU

2 prisoners as the `worst of the worst'" as wholly unsupported by evidence and irrelevant to Flood's claims in this matter which are based on the constitutionality of current confinement conditions in SMUII. Object to Exhibit 8 and Flood's characterization of

Case 2:03-cv-02050-DGC-VAM

Document 31

2

Filed 08/18/2005

Page 2 of 6

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

staff conduct when SMUII opened as inflammatory, irrelevant, prejudicial and based on inadmissible hearsay upon hearsay contained in incomplete Exhibit 8. 8. Object to Flood's characterization of staff conduct when SMUII opened as

inflammatory, prejudicial, wholly unsupported by evidence and irrelevant to Flood's claims in this matter based on the constitutionality of current confinement conditions in SMUII. 9. Object to Flood's characterization of SMUII confinement and correctional

officer training as inflammatory, prejudicial and wholly unsupported by evidence. Object to the introduction and characterization of former Director Stewart's deposition testimony (Exhibit 3) given in another matter regarding SMUII as incomplete, inadmissible hearsay, irrelevant to Flood's claims in this matter and not properly imputed to Defendants. 10. Disputed that Flood's cell is under constant illumination 24 hours a day.

Flood's cell is illuminated during the day and the light is dimmed at night for sleeping. [DSOF at ¶ 38.] This permits health, welfare and security checks throughout the day and evening. [Id.] Disputed that Flood remains in his cell approximately 165 hours or a 168 hour week as he has weekly exercise, visitation and telephone privileges that permit him to be out of his cell more than three hours per week. [Id. at ¶¶ 25, 33.] Object to Exhibit 8 as incomplete, inadmissible hearsay upon hearsay. 11. Disputed that the ADC's STG policy has been modified at any time relevant

to Flood's claims in this case. 12. Disputed that any defendant refused to change Flood's classification status

while housed in SMUII because he invoked his right to remain silent. Rather, Flood's classification status remains 5/5 because he continues to pose the same security threat to the prison system as he has refused to renounce gang membership and debrief. [DSOF at ¶¶ 20-23.] ///

Case 2:03-cv-02050-DGC-VAM

Document 31

3

Filed 08/18/2005

Page 3 of 6

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

13.

Disputed that reclassification reviews of STG-validated inmates require

consideration of "acts of overt misconduct" as contrary to applicable due process law. See Defendants' Motion for Summary Judgment at 11-12; Opposition to Plaintiff's CrossMotion for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment at 6-7. 14. Disputed that Flood's confinement in SMUII is purely for punitive purposes

without a legitimate security interest as unsupported by any evidence. Flood, a validated Aryan Brotherhood member, was confined to SMUII because of the threat he posed to the safe, secure and efficient operation of Arizona's prison systems. [DSOF at ¶ 4.] Flood remains in SMUII because he has refused to renounce gang membership and debrief and therefore continues to pose the same security threat to the prison system. [Id. at ¶ 22.] 15. Object to Exhibit 3, Stewart's deposition testimony in another case, as

incomplete, inadmissible hearsay and irrelevant to Flood's claims in this case. Object to Flood's characterization of this incomplete and inadmissible testimony. 16. Object to Flood's discussion of another case involving former Director

Stewart and Flood's characterization of that case as incomplete, unsupported by evidence, inadmissible and not relevant to Flood's claims in this matter. 17. Dispute Flood's characterization of Defendants' position in this lawsuit as

to the purpose of DO 806. DO 806 was enacted to minimize the threat that inmate gang activity poses to the safe, secure and efficient operation of Arizona's prisons. [DSOF at ¶ 3.] Object to Flood's discussion of Stewart's deposition testimony in another case on the grounds that the Stewart testimony Flood attaches (Exhibit 3) is incomplete, inadmissible hearsay, irrelevant to Flood's claims in this case, mischaracterized, and taken out of context, by Flood.

Case 2:03-cv-02050-DGC-VAM

Document 31

4

Filed 08/18/2005

Page 4 of 6

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 /// /// ///

18.

Disputed that Flood's classification level is properly anything other than a

5/5 based upon his disciplinary history, other Correctional Classification Profile factors and his STG validation. 19. Undisputed that based on current ADC policy, Flood will remain in SMUII

confinement unless he renounces gang membership, successfully debriefs and passes a polygraph test. 20. Disputed that STG-validated prisoners who debrief remain in SMUI in

SMUII type conditions with other protective segregation prisoners. STG-validated inmates (with no Correctional Classification Profile changes) who choose to renounce gang membership, successfully debrief and pass a polygraph test are re-classified and housed in SMU I under Protective Segregation, and may be stepped down into placement in a Level 4 protective segregation yard with similar rights as inmates in any general population Level 4 yard. [DSOF at ¶ 19.] 21. Undisputed that other non-validated I5 prisoners placed in SMUII due to

disciplinary charges or classification overrides have the opportunity to be reclassified to lower level confinement conditions. Dispute Flood's unsupported assertion that a nonvalidated general population prisoner can stab another inmate or assault staff, be classified to SMUII and be eligible for a return to the general population of ADC after 180 days. 22. Disputed that all Death Row prisoners are allowed more visits and store than

STG-validated inmates as long as they commit no disciplinary infractions. 23. Disputed that Flood has grieved his retaliation claim.

Case 2:03-cv-02050-DGC-VAM

Document 31

5

Filed 08/18/2005

Page 5 of 6

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

24.

Object to Flood's assertions regarding the housing conditions of other groups

of inmates and inflammatory statements regarding SMUII housing conditions and the Morey standoff as unsubstantiated and irrelevant to Flood's claims in this matter. RESPECTFULLY SUBMITTED this _____ day of _____ , 2005. TERRY GODDARD Attorney General

s/ Colleen M. Auer Colleen M. Auer Assistant Attorney General Attorneys for Defendants Copy mailed the same date to: Ronald Flood, #067127 ASPC-Eyman-SMU II Post Office Box 3400 Florence, AZ 85232
s/ Colleen M. Auer Colleen M. Auer IDS04-0442/RSK:G2003-04659
919635

Case 2:03-cv-02050-DGC-VAM

Document 31

6

Filed 08/18/2005

Page 6 of 6