Free Response - 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] REBECCA SALISBURY State Bar No. 022006 [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 Defendant Riddle IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Nathaniel Hearn Plaintiff, NO. CV03-1924-PHX-MHM (MEA) DEFENDANT PATRICK RIDDLE'S RESPONSE TO PLAINTIFF'S STATEMENT OF FACTS AND SUPPLEMENTAL STATEMENT OF FACTS

Joseph M. Arpaio, et al., Defendants.

Defendant, Patrick Riddle, hereby submit this Response to the Plaintiff's Statement of Facts and asserts that Plaintiff's Statement of Facts does not create a material issue of fact that would defeat Defendant's Summary Judgment.

Rather, Plaintiff's Statement of Facts and his accompanying Case 2:03-cv-01924-MHM-MEA Document 431 Filed 03/05/2007 Page 1 of 6

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declaration actually show that he had access to the grievance system; that the movement into administrative segregation was due to the Plaintiff's own potential for posing a security risk; and at most losing the grievance and apparent affidavit was accidental. 1. In responding to paragraph 4 of Plaintiff's Statement of Facts, Defendant asserts that the question in this case is not whether or not the Plaintiff was initially classified correctly. Rather, it is an issue of retaliation. However, as is set forth in Rick Bailey's affidavit, which is attached hereto, the Plaintiff was initially placed in this unit because of a notation on his page II charges that indicated he had failed to register as a sex offender. (Affidavit of Rick Bailey, ¶ 5.) 2. In responding to paragraph 5 of Plaintiff's Statement of Facts the Defendant does not deny that the Plaintiff was involved in a multi inmate fight and that he received some lacerations and contusions. This is set forth in Exhibit A to Exhibit 1 of Defendants Separate Statement of Facts. Mr. Hearn was determined to be one of the Exhibit 1, ¶ 9 of Defendants Separate

aggressors in that fight. Statement of Facts.

(See Grievances 04-09276 and 04-09752

attached to Affidavit of Susan Fisher.) 3. In responding to paragraph 6 of Plaintiff's Statement of Facts the Defendant asserts that any reference to any conversation he may have

had with the Bureau Hearing Officer should be stricken as any of the Case 2:03-cv-01924-MHM-MEA Document 432 Filed 03/05/2007 Page 2 of 6

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alleged statements are hearsay and not admissible under Rules 801 and 802, Arizona Rules of Evidence. Also, there is no support for his statement that the DAR was not forwarded to classification and this statement should be stricken and not considered. In responding to paragraph 7 of Plaintiff's Statement of Facts Defendant admits that the Plaintiff was moved to disciplinary segregation and then moved back to his housing unit. (See Affidavit of Rick Bailey, ¶ 5.) In responding to paragraph 8 of Plaintiff's Statement of Facts Defendant does not know what the Plaintiff allegedly learned. However, as stated by Defendant Patrick Riddle, he did an investigation into the allegations and it was determined that D.O. Glee did not persuade 16 inmates to jump the Plaintiff and another inmate. (Exhibit 1, ¶ 15.) In responding to paragraph 9 there is only the word of the Plaintiff that some unnamed inmate wrote an affidavit for the Plaintiff. In responding to paragraph 10 the Defendant asserts that any conversations that the Plaintiff and the unnamed inmate had or any statements made by this unnamed inmate should be stricken and not considered as they are hearsay under Rules 801 and 802 of the Arizona Rules of Civil Procedure. They are being offered for the truth

of the matter asserted and are out of court statements. As to receiving Case 2:03-cv-01924-MHM-MEA Document 433 Filed 03/05/2007 Page 3 of 6

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an affidavit, Officer Riddle recalls receiving some papers but is not certain if it was an affidavit and does not remember what happened to those papers. The normal procedure for handling a grievance is to try to resolve it and if it could not be resolved, to forward the grievance to the Bureau Hearing Officer. (Exhibit 1, ¶¶ 3 and 15.) In responding to paragraph 11 it is true that on August 19, 2004 the Plaintiff was moved to administrative segregation. This move was

done at the suggestion of Sgt. Browning, not Sgt. Riddle, and was done only after it was reviewed by classification. (Exhibit 1, ¶¶ 12 and 14; Exhibit 2, ¶¶ 4 and 9; Affidavit of Rick Bailey, ¶¶ 5 and 7.) In responding to paragraphs 13 and 14 Defendant asserts that the statement is not supported by any evidence whatsoever and is merely a conclusory and baseless statement that should be stricken. The actual reason for his placement into Administrative Segregation was because it was determined that he was possible security threat. He should have been moved soon after the fight; however, he was not moved for another two months. (Exhibit 1, ¶¶ 10-14; Exhibit 2, ¶¶ 4-6; Affidavit of Rick Bailey, ¶ 7.) In responding to paragraph 15 Defendant asserts that Riddle did conduct an investigation and that any reference to any conversations that the Plaintiff may have had with hearing officers should be stricken

as they are out of court statements offered for the truth of the matter Case 2:03-cv-01924-MHM-MEA Document 434 Filed 03/05/2007 Page 4 of 6

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asserted and as such it is inadmissible hearsay under Rules 801 and 802, Arizona Rules of Evidence. (Exhibit 1, ¶ 15.) In responding to paragraph 16 Defendant asserts that Defendant Riddle did not lie or otherwise perjure himself. Defendant Riddle in his Affidavit clearly indicates that he handled one other DAR involving the Plaintiff and that it related to "sagging" and rolling up the cuffs of his pants. This was no retaliation for anything and the Plaintiff had a

hearing on this issue and the hearing officer found that the Plaintiff was not intentionally violating any jail policies. (Exhibit 1, ¶¶ 17-18.) In responding to paragraph 18 Defendant asserts that these are facts that have been repeated and answered above. Defendant was able to file grievances and use the administrative process after getting into the fight and after submitting the grievance and alleged affidavit to Sgt. Riddle. (Affidavit of Susan Fisher and attached grievances.) RESPECTFULLY SUBMITTED this __5th__ day of March 2007. ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

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Document 435

s/Joseph I. Vigil JOSEPH I. VIGIL REBECCA SALISBURY Attorneys for Sgt. Riddle

Case 2:03-cv-01924-MHM-MEA

Filed 03/05/2007

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ORIGINAL of the foregoing E-FILED and copies MAILED this _5th_ day of March 2007 to: Honorable Mary H. Murgia 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 District Court Magistrate Judge 123 North San Francisco Street, Ste 200 Flagstaff, AZ 86001 Nathaniel Hearn, #66155 ASPC Florence ­ MU Meadows Unit ­ Eyman #8A-32 P.O. Box 3300 Florence, AZ 85232 Plaintiff Pro Per

s/Michele Haney
CJ04-094 S:\COUNSEL\Civil\Matters\CJ\2004\Hearns CJ04-094\Pleadings\Reply to Plaintiff's SOF-030507.doc

Case 2:03-cv-01924-MHM-MEA

Document 436

Filed 03/05/2007

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