Free Statement - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski , #022126 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-7323 Facsimile No.: (602) 200-7811 E-Mail: [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell CIV 03-1819 PHX-JAT (LOA) Plaintiff, v. F. Garcia (Asst. Warden) C. Miles (Unit Manager/Bravo) E. Scalet (Ins. Inv.) Todd Mohn (DHO Hearing Officer) Defendant. STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS CORA MILES , JOE GLUCH, STELLA PONCE, SEFERINO TALAMANTES AND TIMOTHY CASON'S MOTION FOR SUMMARY JUDGMENT

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants Cora

Miles,

Joe

Gluch,

Stella

Ponce,

Seferino Talamantes, and Timothy Cason (hereinafter Defendants) through undersigned counsel, and pursuant to Rule 56.1, Rules of Practice of the United States District Court for the District of Arizona, hereby submit the following Statement of Facts in Support of their Motion for Summary Judgm ent. These facts are assumed to be true for the purpose of this Motion only. 1. Powell was placed in the Special Housing Unit at the Eloy

Detention Center on August 14, 2003. (Plaintiff's deposition p. 12, attached at Exhibit 1). /// ///

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2.

Powell states that inmates Ibarra and Navarro were

selling his legal work to other inmates and Powell reports this to the law librarian. (Plaintiff's deposition, pp. 27-29). 3. The institution does not take action on Powell's complaint

to the librarian. (Plaintiff's deposition p .29). 4. Powell then confronts Ibarra and Navarro about selling his

legal work. (Plaintiff's deposition p. 29). 5. During the confrontation, Powell tells Ibarra and Navarro

to quit selling his legal work to inm ates. (Plaintiff's deposition, p. 30,). 6. Powell Ibarra and Navarro are placed in SHU (Special

Housing Unit). (Plaintiff's deposition p. 34). 7. Powell was removed from his cell in SHU and interviewed

by A.W. Garcia and C. Miles concerning selling his legal work to other inmates. (Plaintiff's deposition p. 38). 8. Powell was returned to his cell after the interview and saw

Ibarra and Navarro packing out to leave. (Plaintiff's deposition p. 40). 9. W hile Ibarra and Navarro were in their cells, they began

to tell other inmates in the SHU that Powell had snitched on them. (Plaintiff's deposition p. 41). 10. Powell never had a conversation with Miles where she

called him a snitch. (Plaintiff's deposition p. 46). 11. Powell does not know why Miles would say anything

about him, as they had no past confrontations. (Plaintiff's deposition p. 48). 12. The reason Powell is in the SHU is for his own safety.

(Plaintiff's deposition p. 50). /// 2

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13.

Powell was placed into the SHU because someone from

another dorm told Powell's work supervisor that if he came out into general population he would get hurt. (Plaintiff's deposition p. 50). 14. Powell has been safe during the time he has been in

protective custody. (Plaintiff's deposition pp. 52-53). 15. Powell's lawsuit is based upon the fact that he was told

he was in danger. (Plaintiff's deposition p. 56). 16. Miles never walked by Plaintiff's cell and said anything to

him. (Plaintiff's deposition, p. 58). 17. There are a number of inmates upset with Powell

because he filed a com plaint against Miles. (Plaintiff's deposition p. 61). 18. Powell was kept in SHU because a gang member went

to his work supervisor, and told her Powell was in danger. (Plaintiff's deposition p. 62). 19. Powell was separated from other inmates for his own

safety. (Plaintiff's deposition p. 62). 20. Powell would have dropped Miles from the lawsuit except

for his fear that it really happened but he does not know. (Plaintiff's deposition p. 64). 21. Inmates Ibarra and Navarro have threatened Powell.

(Plaintiff's deposition p. 65). 22. Powell is not sure Miles said the things to Ibarra that

caused the problem with him being labeled a snitch because Ibarra is a liar. (Plaintiff's deposition pp. 67-68). 23. Powell was disciplined for having possession of

unauthorized Presentence Investigation Reports. (Plaintiff's deposition p. 69). 3

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24.

Powell claims Navarro had to make sure Powell did not

get out of SHU or Powell would tell other inmates what really happened and Navarro would get in trouble. (Plaintiff's deposition p. 70). 25. Powell heard from other inmates and guards that he

snitched on Ibarra and had turned himself in for protective custody. (Plaintiff's deposition p. 71). 26. Incident report numbers 1135443, 1172755, and

1135445, are attached hereto and incorporated herewith are true and accurate copies of the incident reports and investigation materials involving inmate Powell which records are regularly kept in the course of the business of the Eloy Detention Center as business records of the facility. (Attached as Exhibits 2, 3, and 4). 27. Inmate Powell was disciplined and placed into SHU for (Incident report number

receiving money from another inmate's family. 1135443, attached as Exhibit 2). 28.

Powell was also disciplined for placing an unauthorized

phone call. (Incident report number 1172755, attached as Exhibit 3). 29. Unit Manager Miles conducted an investigation of inmate

Powell's property and discovered he had several other inmates PSI's (Presentence Investigations) in his possession. Powell was disciplined for this offense and was placed in disciplinary segregation as a result of this violation. (Incident report number 1135445, attached as Exhibit 4). 30. Inmate Powell was placed into the SHU by C. H. Miles His placement

after a threat to his safety was made by fellow inmates.

advanced the legitimate penological purposes of maintaining security and safety of the inmates and staff by preventing institutional violence. (Affidavit of 4

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C. H. M iles, attached as Exhibit 5). The original Affidavit of C. H. Miles was attached as Exhibit 5 to Defendants Separate Statement of Facts in support of Its Motion for Summary Judgment filed on February 10, 2005. 31. C. H. Miles had no involvement in moving the Powell from

the Protective Custody Unit to the hearing room for his INS hearing. The movement of Powell from protective custody to the INS courtroom would be conducted by transportation officers of the court. (Affidavit of C. H. Miles). 32. C. H. Miles conducted an investigation of Powell's

conduct concerning the possession of contraband as well as receiving money from inmates families. After the investigation a disciplinary action was brought against the Powell for which the Powell was disciplined. (Affidavit of C. H. Miles). 33. C. H. Miles never made a statement to the Powell or any Powell was

other inmate that described the Powell as being a "snitch."

threatened in the presence of officers who had to take action to protect Powell by placing him into the SHU unit. (Affidavit of C. H. Miles). 34. C. H. Miles has no duty to train officers in the method or

manner of escorting inmates from the SHU to the courtroom. (Affidavit of C. H. Miles). 35. Officer Seferino Talamantes escorted Powell to the

hearing room at the Eloy Detention Center. During the transport there were no contacts with general population inm ates and no incidents involving the safety of Powell. Upon arrival at the courtroom, Powell was turned over to the custody of Officer Cason who took control of Powell. Powell was seated in the front left of the courtroom and was approximately 10 feet away from other inmates. An officer was stationed directly behind him, and remained between other inmates 5

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and Powell. At no time was the Powell left alone in the courtroom with general population inmates. (Copy of Affidavit of Seferino Talamantes, attached as Exhibit 6) and (Affidavit of Timothy Cason, attached as Exhibit 7). The original Affidavit of Seferino Talamantes was attached as Exhibit 6 to Defendants' Separate Statement of Facts in support of Its Motion for Summary Judgment filed on February 10, 2005. 36. Powell was segregated from the other inmates inside the

courtroom at all times by locating him in the far left portion, well away from other inmates. This is done to maintain security and to keep all inmates safe while in the courtroom. Protective custody cases are heard first, such as the one the involving Powell. Then the protective custody inmate is removed from the courtroom and placed into a separate holding cell until transport back to the SHU. During the course of the Powell's hearing, there was no breach of security, nor danger to Powell. (Affidavit of Seferino Talamantes), (Affidavit of Timothy Cason), and (Transcript of Immigration Removal Proceedings Hearing dated November 13, 2003, attached as Exhibit 8). 37. There is no indication that Powell was fearful for his safety

during the November 13, 2003 Imm igration hearing. There was no disturbance or disruption by any inmate prior to or during the Imm igration hearing. (Transcript of Immigration Removal Proceedings Hearing dated November 13, 2003). 38. Powell was escorted into the courtroom by security staff,

and was never lft alone in the courtroom. (Affidavit of Timothy Cason). 39. The courtroom bailiff took custody of Powell and stationed

himself approximately five feet beside him. (Affidavit of Timothy Cason).

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40.

The bailiff remained in the courtroom the entire time of the

hearing to protect Powell. (Affidavit of Timothy Cason). 41. There were no comments or gestures made by inmates

during the course of the haring. (Affidavit of Timothy Cason) and (Transcript of Immigration Removal Proceedings Hearing dated November 13, 2003). 42. Protective custody inmates cases are heard first then the

SHU inmate is removed from the courtroom. (Affidavit of Timothy Cason). 43. At no time did Powell vomit while in the courtroom.

(Affidavit of Timothy Cason). DATED this 27 th day of January 2006. J ONES, S KELTON & H OCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Tim othy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants ORIGINAL of the foregoing electronically filed this 27 th day of January 2006, with: Richard W eare, Clerk U NITED S TATES D ISTRICT C OURT COPY of the foregoing mailed this 27 th day January 2006, to: The Honorable James A. Teilborg U NITED S TATES D ISTRICT C OURT Sandra Day O'Connor U.S. Courthouse, Suite 523 401 W est Washington, SPC 51 Phoenix, Arizona 85003-2154

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COPY of the foregoing faxed this 27 th day January 2006, to: Office of the Pro Se Staff Attorney 602-322-7289 COPY of the foregoing mailed this 27 th day of January 2006, to: Carlos Powell, #10090-023 D/U 325 FCI-1 V ICTORVILLE P. O. Box 5300 Adelanto, California 92301-5300 Plaintiff Pro Se

s/Dianne Clark 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1575585_1

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