Free Statement - District Court of Arizona - Arizona

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ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY By: JOSEPH I. VIGIL State Bar No. 018677 [email protected] MARIA R. BRANDON State Bar No. 004249 [email protected] Deputy County Attorneys MCAO Firm No. 00032000

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CIVIL DIVISION Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206 Telephone (602) 506-8541 Attorneys for Joseph M. Arpaio and Captain Tate IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Alvin LaRue Pinkoson, Plaintiff, NO. CV03-1928-PHX-MHM (MEA) DEFENDANTS ARPAIO AND TATE'S STATEMENT OF FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Joseph M. Arpaio, et al., Defendants.

Defendants, by and through undersigned counsel, hereby submit their Separate Statement of Facts in Support of their Motion for Summary Judgment. 1. The Plaintiff was found guilty by a jury of two counts of burglary in the

third degree on July 31, 2003. (See Court Minute Entry dated 7/31/03, Case 2:03-cv-01928-ROS-MEA Document 421 Filed 01/04/2007 Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6. 5. 4. 3. 2.

attached hereto as Exhibit 1.) Plaintiff was booked into jail on August 6, 2003 pursuant to a bench warrant that was issued when he failed to show up for his trial. (See Exhibit 1 and Affidavit of Dr. Todd Wilcox at ¶ 5, attached hereto as Exhibit "2.") Once arrested, the Plaintiff was housed in the Towers Jail ­ Floor 1, House 1 - in a cell with two other inmates from August 8, 2003 to December 30, 2003. The cells were "triple" bunked with the third bunk permanently installed. By having triple bunks, there was enough space in the cells for the inmates to conduct their daily business. In addition to the cell space, the inmates had access to the day room for approximately 18 hours a day. (See Affidavit of Donna Hudson at ¶ 3, attached hereto as Exhibit "3".) The Towers jail was allowed to have a population of 1080 inmates. This figure allows for triple bunking. Since the cells were triple bunked the jail has been inspected by the Fire Marshall and the Maricopa County Health Inspector and neither one of them has issued any citations or complaints about the housing. (Exhibit "3" at ¶ 4.) At the time the Plaintiff was in the jail, Maricopa County Sheriff's Office was in the process of building two new jails to take care of the expanding inmate population. Construction of the jails began in 1999, with the actual

planning of the jails starting much earlier. The construction of the jails Case 2:03-cv-01928-ROS-MEA Document 422 Filed 01/04/2007 Page 2 of 7

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was dependent on funding issues. (Exhibit "3" at ¶ 5.) During the construction of the jails MCSO was still responsible for taking into custody and housing all persons remanded to the MCSO by the Courts, including all convicted inmates and all pretrial detainees. (Exhibit "3" at ¶ 5.) During the time the Plaintiff was being housed at the Towers jail he claimed he was Jewish and as a result he needed to be provided a Kosher meal. Throughout his stay he was given a Kosher meal in

conjunction with his religious beliefs. To have a formal Jewish service, there needs to be a "minyan" or quorum of ten (10) adults for communal worship. Because there are so few

Jewish inmates in jail, it is often difficult to have a minyan. (See Affidavit of Chaplain Gregory Millard attached hereto as Exhibit "4" at ¶ 4.) As an alternative, an inmate who is Jewish can receive Jewish religious services by requesting, via an inmate request form, to pray or worship with his rabbi or a representative of his temple. Additionally, the inmate may attend any other service, including a non-denominational service. (Exhibit "4" at ¶¶ 3 and 6.) If there are too many inmates who want to attend a service, additional services will be added to accommodate the other inmates. The inmate can ask, via an Inmate Request Form to see the Chaplain. There is no

evidence that the Plaintiff ever submitted an Inmate Request for religious Case 2:03-cv-01928-ROS-MEA Document 423 Filed 01/04/2007 Page 3 of 7

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services. (Exhibit "4" at ¶¶ 5 and 6.) During October 2003 church services were offered on at least 11 days, with the highest number of inmates participating being 10 and the lowest 3. Plaintiff could have attended any of these services. (Exhibit "3" at ¶ 9.) Plaintiff, from the time he was released from prison on October 28, 2002 to the time he was booked into jail in August 2003, did not attend any Jewish services and did not belong to a temple. Additionally, while he was in prison, which Plaintiff claims was the entire time he has been in Arizona, he did not attend any Jewish religious services. (See Deposition of Alvin LaRue Pinkoson, attached hereto as Exhibit "5" at page 21:12 through page 24:8.) At no time was the Plaintiff prohibited from praying or practicing his religion while in jail. (Exhibit "5" at page 30:17-18.) Recreation in the jail is based on a number of factors ranging from inclement weather, flooded recreation yards, security issues, staffing, construction or maintenance of recreation yards, etc. If these factors are not present inmates are offered recreation (Exhibit "3" at 6.) However, an inmate does not have to participate in recreation. Inmates may also exercise in their cells (e.g. do sit ups, push ups, etc.) or in the day room as long as they are not in someone's way. (Exhibit "3" at 7. See also Affidavit of Jack Ellison, attached hereto as Exhibit "6" at ¶ 9.)

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17.

There is no evidence that any assault actually took place. Rather, the evidence shows that the Plaintiff actually reported that he slipped and fell while taking a shower. (Exhibit "6" at ¶ 4.)

18.

He not only told jail staff that he slipped and fell, but he also told the doctors at the hospital that he slipped and fell. (Exhibit 2 at ¶ 11.)

19.

MCSO conducted an investigation, as is routine, to make sure there was no assault and their investigation found no evidence of an inmate on inmate assault. This was done because it is rare for there to be a slip and fall in the shower. (Exhibit "6" at ¶¶ 5 and 6.)

20.

Because the Plaintiff stated that he slipped and fell, not other investigation was conducted or needed. (Exhibit "6" at ¶ 7.)

21.

Plaintiff indicated that he was injured because legal documents were taken from his cell by MCSO. However, according to the Plaintiff he was able to recreate all of the legal documents pertaining to his civil lawsuit and the case went forward. (See Exhibit "5" at page 48:17 through page 51:20.)

22.

In relation to the criminal case he was working on at the time, that case was dismissed and he was not harmed by the loss of any legal documents. Id.

23.

Mr. Pinkson was screened by Correctional Health Services upon being booked into jail and it was found at that time that he had a history of using

cocaine and crack and he used crack the morning he was booked into jail. Case 2:03-cv-01928-ROS-MEA Document 425 Filed 01/04/2007 Page 5 of 7

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Also there was a history of him having psychiatric problems. (Exhibit "2" at ¶ 6.) According to the Plaintiff he was diagnosed both as having panic attacks and being bi-polar prior to his being booked into jail in 2003. (Exhibit "5" at page 42:20 through page 43:17.) Other medical records from CHS show that there was a history of psychiatric problems and emotional instability. (Exhibit "2" at ¶¶ 7 ­ 9.) There is nothing in the medical records that suggest the Plaintiff's emotional and/or mental problems are a result of his stay at the jail from August 2003 through December 2003. (Exhibit "2" at 10.) There is proof in the medical records that the Plaintiff may have gained 14 pounds while in the Towers jail. However, there is nothing to indicate that this gain of weight was in any way unhealthy. On or about September 16, 2003 the Plaintiff weighed 156 pounds and on December 26, 2003 he weighed 170 pounds. He is six feet tall. (Exhibit "2" at 13.) Plaintiff never sought medical attention because he was concerned about his weight gain. (Exhibit "5" at page 42:3-5.)

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RESPECTFULLY SUBMITTED this

4th

day of January 2007.

ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

BY: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
Case 2:03-cv-01928-ROS-MEA Document 427

s/Joseph I. Vigil JOSEPH I. VIGIL MARIA R. BRANDON Deputy County Attorney Attorneys for Joseph M. Arpaio and Captain Tate

ORIGINAL of the foregoing E-FILED and copies MAILED this _4th_ day of January 2007 to: Honorable Mary H. Murguia United States District Court Judge Sandra Day O'Connor U.S. Courthouse, Suite 525 401 West Washington Street, SPC 53 Phoenix, AZ 85003 Honorable Mark E. Aspey United States Magistrate Judge 123 North San Francisco Street, Ste 200 Flagstaff, AZ 86001 Alvin LaRue Pinkoson #127807 ASPC-Tucson Manzanita Unit PO Box 24401 Tucson, Arizona 85734 Plaintiff Pro Per

s/Michele Haney
CJ05-407 S:\COUNSEL\Civil\Matters\CJ\2005\Pinkoson CJ05-407\Pleadings\SOF in support of MSJ.doc

Filed 01/04/2007

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