Free Response to Motion - District Court of Arizona - Arizona

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ROBERT L. S TORRS
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Attorney At Law 45 West Jefferson, Suite 803 Phoenix, Arizona 85003-2317 State Bar No. 002224 Office: (602) 258-4545 Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Mark E. Hampton, Plaintiff, vs. Charles Ryan, in his individual and official capacity, et al., Defendants. I. Background Article I, § 10, of the Constitution prohibits the States from passing any "ex post facto Law." An ex post facto law, Justice Chase explained over 200 years ago, includes "[every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action." Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798) (Chase, J.) (emphasis in original). The prohibition against ex post facto laws is one of many concepts inherent in the overall concept of due process. See Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693 (2001). In August of 1985, Plaintiff Mark Hampton was sentenced to life imprisonment in the Arizona Department of Corrections ("DOC"); however, he was eligible for parole after 25 years. PSOF ¶ 165. On August 31, 1995, more than a decade after Mr. Hampton was first remanded to the custody of the DOC, the DOC announced, for the first time, that the Aryan
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PLAINTIFF'S AMENDED RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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Brotherhood was designated as a "Security Threat Group" ("STG"), and that within "thirty days from that date any inmate exhibiting activity or identification with the Aryan Brotherhood was subject to sanctions." Id. at ¶ 166. In October of 1998, the DOC advised Mr. Hampton that it was instituting STGvalidation proceedings against him. Id. at ¶ 167. At the hearing, the DOC presented five pieces of invalid, improper, and questionable evidence against Mr. Hampton, including (1) a photograph taken in approximately 1989 ­ six years before belong to the Aryan Brotherhood ("AB") was banned ­ at a prison rodeo in which Mr. Hampton is seen with an AB member; (2) two instances in sometime between 1991 and 1993 in which Mr Hampton was allegedly talking to AB members in the prison yard, and (3) two lists, found in the possession of other inmates, containing the names of "known" AB members

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and including Mr. Hampton's name. Id. As DOC Lieutenant Powell noted, at least one
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of the lists was found in the possession of a notoriously unreliable inmate. Moreover,
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the lists also included names of individuals who were not known to be AB members.
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Finally, the lists were undated. Thus, like the first three items of evidence, it was
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possible that the lists pre-dated the August 1995 ban on AB membership. Id. at ¶ 168. Although the DOC's own directive to the inmates indicated that only conduct from September 30, 1995, onward, would be used to validate one's membership in the Aryan Brotherhood, the DOC validated Mr. Hampton as a member of the AB based almost exclusively on pre-1995 evidence. From there, he was transferred to the Eyman, Special Management Unit II ("SMU II" or "Supermax"), unquestionably one of the restrictive environments within the United States. Id. at ¶ 169; see generally Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384 (2005) (describing rise of Supermax prisons in the United States, and the general conditions of confinement within such institutions). Mr. Hampton was first assigned to SMU II in February of 1999. Id. at ¶ 170. Mr. Hampton's cell measures approximately 10' by 8', and has no windows. Id. The cell

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contains a bed, a sink and a toilet. All meals are delivered to Mr. Hampton in his cell and, with few exceptions, Mr. Hampton has to remain in his cell 24 hours per day. Id. For two hours every other day Mr. Hampton is allowed out of his cell for exercise and a shower. Id. at ¶ 171. The shower room is located approximately 20 feet down the hall from Mr. Hampton's cell. There, he was allotted eight minutes of water time to shower and shave. Id. The "recreation area" is approximately ten feet away from Mr. Hampton's cell. This area consists of a 11 x 23 foot empty room with 18 foot high walls. Id. Other than the shower and exercise time, Mr. Hampton was allowed to leave his cell to make one phone call per week (the phone is located near the shower room) and, if there are visitors, for up to two hours of visitation time per week. Id. at ¶ 172.

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Communication with visitors must take place through a plate glass window. Visitors to
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SMU II, including medical personnel, have to wear bulletproof jackets and protective
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eye goggles. Id.
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At least one light is on in Mr. Hampton's cell constantly, even at night. Id. at ¶
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173. Although Defendants attempt to minimize the significance of this light (noting that it is a 7-watt bulb), it may be relatively dim, but it is certainly not non-existent, illuminating the entire cell. Id. Ironically, although Mr. Hampton has not experienced darkness in over 8 years, neither has he had any meaningful exposure to sunlight. At most, he obtains a couple of hours of filtered sunlight through the roof of the exercise room. Mr. Hampton's life consists of non-stop, uninterrupted, artificial light. Mr. Hampton receives only a minimal amount of food. He receives three meals per day (two on weekends), providing 2800 calories per day. Id. at ¶ 174.1 However,

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The State defends the limited caloric intake based upon the alleged sedentary lifestyle of SMU II inmates. However, as the State subsequently admits, SMU II inmates are free to exercise as much as they want within the confines of their cells. Due to the
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Mr. Hampton is not entitled to purchase any food items from the prison commissary (except during the month of December), nor receive any packages of any type from families or friends. Id.2 Mr. Hampton has lost considerable weight during his tenure in SMU II, down to 120 pounds. Id. Mr. Hampton, like all SMU II occupants, have very limited sources of sensory or intellectual input in SMU II. Although the State claims that they have access to

periodicals and books, the permitted sources of such materials are extremely limited. The only magazines that an SMU II inmates can receive (from an approved list) are those sent to the inmate directly from the publisher, and it is the responsibility of the inmate (who has no source of income in SMU II) to pay for the subscription. Id. at ¶ 175. Likewise, the books that an SMU II inmate can read must be sent directly from a

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publisher or other book retailer, such as amazon.com. Id. Obviously, Mr. Hampton, like
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all SMU II residents, does not have access to a computer or credit card, let alone other
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method of payment for such books. He must rely on the generosity of family to pay for
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the few reading materials he receives.
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Moreover, Mr. Hampton's medical needs have been virtually ignored since his removal to SMU II. Id. at ¶ 177. Since at least 1998, some eight years ago, Mr. Hampton has suffered from severe and ongoing and debilitating low back pain, multiple hernias, hypertension, Hepatitis C, Gastroesophageal Reflux Disease, abdominal pain, and weight loss. Id. The hernias, in particular, have been the source of constant pain and discomfort. Id. at ¶ 178. Moreover, they are potentially life-threatening. Id. However, because they

lack of any other meaningful activity during the days spent alone in their cells, many of the SMU II inmates regularly exercise in their cells, doing push-ups, yoga exercises, etc.
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Even during the holiday season, Mr. Hampton is precluded from receiving gifts or packages from family.
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have been diagnosed as "reducible," the DOC has chosen to treat them solely ­ for eight full years ­ solely with "hernia belts" and "abdominal binders." Id. As James Doris has indicated, this "does NOT meet the standard of care in the community for an ongoing hernia, especially one accompanied with pain symptoms." Id. at ¶ 179 (emphasis in original). The common standard of care for such a condition is for surgical referral for repair. This is because a given number of patients with herniae even one that is reducible, will have issues with incarceration and peritonitis, and it is the norm to electively repair such herniae to prevent these potentially catastrophic complications. Id. (emphasis added). Likewise, the DOC has also been deliberately indifferent in failing to treat Mr. Hampton's Gastroesophageal Reflux Disease. Dr. Doris indicated: I note from the record that subsequent to this diagnosis he was then medicated with Ibuprofen which is non steroidal anti-inflammatory medication. Typically, this class of medications is contraindicated in patients with Barrett's esophagitis after EGD as they can lead to ulceration and in worse case scenario bleeding which may be of life threatening nature. Id. at ¶180. In short, the DOC has left Mr. Hampton confined for years in the SMU II with two separate and untreated potentially life threatening conditions. At the time that Mr. Hampton filed his original complaint in this matter (September 3, 2003, four years into his potentially life-long confinement in SMU II), there was only one way that Mr. Hampton could escape his lifelong solitary confinement: renounce his membership in the STG, and "debrief." Id. at ¶ 181. To "debrief," Mr. Hampton would have been required to (1) convince DOC that he had dropped out of the STG (effectively requiring him to falsely admit to having been a member in the first instance), (2) provide information about the STG (a particularly troublesome task for Mr. Hampton, who was never a member and therefore has no information to provide), and

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(3) provide other information so that the DOC can decide whether the inmate needs further protection. Id. On October 25, 2005, the DOC modified the STSG Policy, effective in March of this year (Mr. Hampton's 8th year of confinement in SMU II), to include a "Step Down program" that allegedly provides a way for STG inmates to move out of SMU II. Id. at ¶ 182. The new program does not guarantee release from SMU II or eliminate the

otherwise unconstitutional defects in DOC's STG policy. Id. The new Step Down program requires inmates to be in SMU II for four years before participating. Id. at ¶ 183. Then, the inmate must complete another 24 months without any gang-related activity; in other words, an inmate must spend at least six years in SMU II. Id. Only then, if the inmate complies with other certain requirements, the

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inmate may be moved out of SMU II. The requirements include (1) avoiding unsafe
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activities, (2) successfully completing a polygraph test, (3) completing anger
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management and drug rehabilitation courses, (4) psychological counseling, (5) peer
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group activities, and (6) evaluations by the psychology department staff and the Staff
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Inmate Reintegration Team. The Step Down program must be completed within 18 months. Id.3 II. Discussion A. Standard of Review

The initial burden on a motion for summary judgment belongs to the moving party, who must identify with clarity the basis for the request. Crawford El v. Britton, 523 U.S. 574, 118 S.Ct. 1584 (1998). In Crawford El, the United States Supreme Court observed that "a party seeking summary judgment always bears the initial responsibility

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The Step Down program is not the only change in procedures recently instituted by DOC at SMU II. Inmates are now allowed two hours per week, rather than one, in the exercise yard, a direct reaction to the lawsuits filed by SMU II residents.
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of informing the district court of the basis for its motion. . . ." Id. at 600, 118 S.Ct. at 1598 (quotation omitted). Similarly, the Ninth Circuit recently observed: A moving party without the ultimate burden of persuasion at trial usually, but not always, a defendant has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Only after the moving party has met its burden must the non moving party

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set forth facts demonstrating a "genuine issue for trial." Leisek v. Brightwood Corp., 278
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F.3d 895, 898 (9th Cir. 2002).
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Thereafter, the burden falls on the non moving party to demonstrate a genuine
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issue of material fact. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1220 (9th
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Cir. 1995). However, in making this determination, the Court must view the evidence in the light most favorable to the non moving party. Id. All reasonable inferences must be resolved in the non moving party's favor. Id. B. Defendants' Validation of Mr. Hampton as a Member of a Security Threat Group Violated Mr. Hampton's Due Process and Ex Post Facto Rights.

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The Due Process Clause of the Fourteenth Amendment prohibits states from "depriving any person of life, liberty, or property, without due process of law."
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U.S.Const. amend. XIV, § 1. Similarly, the Ex Post Facto Clause prohibits the States
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from passing any "ex post facto Law." U.S.Const. art. I, § 10. In Wilkinson v. Austin,
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545 U.S. 209, 125 S.Ct. 2384 (2005), the Supreme Court reaffirmed its earlier holding in
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Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293 (1995), that an inmate possesses a
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liberty interest if his assignment to a more restrictive prison setting "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."

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Wilkinson, 545 U.S. at 222, 125 S.Ct. at 2394. The State does not deny Mr. Hampton's liberty interest in avoiding placement in SMU II. See State's Motion, at pp. 6-7. As noted above, the DOC ­ by its own admission ­ made membership in the AB wrongful in August of 1995, and even then, gave the inmates an additional thirty (30) days in which to discontinue any conduct related to AB membership. Yet, when the DOC decided to "validate" Mr. Hampton as a member of the AB in 1998, it relied almost exclusively on evidence that pre-dated August of 1995. Moreover, the little evidence that arguably post-dated August of 1995 ­ the two lists found in the possession of other inmates ­ certainly did not involve any conduct by Mr. Hampton. Rather, even if given every inference, however unreasonable, desired by the DOC, the lists demonstrated

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nothing more than that Mr. Hampton may have been, at one undetermined point, a
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member of the AB. However, based solely on this highly speculative evidence, none of
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which involved any indication that Mr. Hampton was involved in prison-related violence
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whatsoever, the DOC chose to place Mr. Hampton in "the most restrictive form of
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confinement in the state of Arizona and the most secure super-maximum security prison in the United States." Koch v. Lewis, 216 F.Supp.2d 994, 997 (D.Ariz. 2001), vacated, Koch v. Schriro, 399 F.3d 1099 (9th Cir. 2005) (describing deposition testimony of thenDOC director Terry Stewart). In Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891 (1997), the United States Supreme Court invalidated a Florida law that retroactively cancelled "good time credits" that had been awarded to inmates to alleviate prison overcrowding. In holding that the statute violated the Ex Post Facto Clause, the Supreme Court stated: The presumption against the retroactive application of new laws is an essential thread in the mantle of protection that the law affords the individual citizen. That presumption is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. The specific prohibition on ex post facto laws is only one aspect of the broader constitutional protection against arbitrary changes in the law. In both the

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civil and the criminal context, the Constitution places limits on the sovereign's ability to use its lawmaking power to modify bargains it has made with its subjects. The basic principle is one that protects not only the rich and the powerful, but also the indigent defendant engaged in negotiations that may lead to an acknowledgment of guilt and a suitable punishment. Id. at 439-40, 117 S.Ct. at 895. Not only did the DOC classify Mr. Hampton based upon stale, pre-regulation

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evidence, but is classified him solely on "status" evidence, rather than any "conduct"
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evidence.
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The United States Supreme Court and courts throughout the country have

long held that conduct, rather than status, should be the touchstone of classifications. For example, when it examined McCarthy-era laws regarding subversive organizations,
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the Court held that "the bare fact of membership" in the Communist Party was an insufficient basis for punishment; rather, due process required proof of active involvement, specific intent, or illegal conduct prior to deprivation of a protected right. Aptheker v. Secretary of State, 378 U.S. 500, 509-14, 84 S.Ct. 1659 (1964) (holding that a provision of the Subversive Activities Control Act which prohibited a Communist Party member from applying for or using a passport infringed on Fifth Amendment guarantees); Scales v. United States, 367 U.S. 203, 221-28, 81 S.Ct. 1469 (1961) (holding that the Smith Act's membership provision did not violate the Fifth Amendment's Due Process Clause only because it required evidence of active membership and a specific intent to overthrow the government and was not directed at punishing "nominal membership"). More recently, the Supreme Court has criticized status-based deprivations as contrary to equal protection principles. See Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (striking down Colorado Amendment 2, which prohibited local governments from enacting laws protecting the civil rights of gays and lesbians, in part because "[i]t is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests ···"). See also City of Chicago v. Youkhana, 660 N.E.2d 34, 41-9-

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42 (App. 1995) (holding that a city ordinance prohibiting gang members from loitering was unconstitutional because, inter alia, "it is not the conduct, but the status, that triggers the ordinance."), aff'd on other grounds sub nom. City of Chicago v. Morales, 687 N.E.2d 53 (1997), aff'd, 527 U.S. 41, 119 S.Ct. 1849 (1999). Determining the status of an inmate as a gang member is particularly fraught with difficulties. According to one court-appointed monitor, "gang membership . . . is inherently virtually impossible to ascertain or discover with precision. The gang's only tangible existence is in the minds of the prisoners and prison officials. It is quite unlikely that any two individuals would independently list the same set of persons as members of the group." Madrid v. Gomez, 889 F.Supp. 1146, 1272 n. 221 (N.D.Cal. 1995). A

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number of studies conclude that incarceration in SMU-like conditions should be based
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on some evidence of overt misconduct and not on status alone. See Scott N. Tachild,
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Indeterminate Sentences in Supermax Prisons Based Upon Alleged Gang Affiliations: A
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Reexamination of Procedural Protection and a Proposal for Greater Procedural
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Requirements, 83 Calif.L.Rev. 1115, 1138-46 (1995); Jerry R. DeMaio, If You Build It, They Will Come: The Threat of Overclassification In Wisconsin's Supermax Prison, 2001 Wis.L.Rev. 207, 229 (2001) ("The only fair solution may be to define gang activity based on objective, concrete criteria, such as documented assaultive or threatening behavior. This would lower the risk of misidentifying gang members, and subjecting them to unnecessary intensive incarceration at [Wisconsin's SMU equivalent]"). Mr. Hampton has spent eight years in extreme solitary confinement based upon stale, status-related, and highly unreliable evidence. His validation violated both due process and ex post facto, and should be set aside accordingly. C. The Procedures For Leaving SMU II Also Violate Due Process. 1. Introduction

DOC's STG policy further violates Mr. Hampton's due process rights by depriving him of a "meaningful review" of his placement in SMU II.
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fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 (1976) (citation omitted). There must be some evidence in the record to support the decision to segregate an inmate. Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864 (1983). The Supreme Court has held that prison officials are required to engage in an informal, non-adversarial review of the information supporting an inmate's administrative confinement that occurs within a reasonable time after confining him to administrative segregation. Hewitt, 459 U.S. at 476. Even though the DOC may have a penological interest in stopping gang activity, it cannot indefinitely confine Mr.

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Hampton absent a security threat or evidence of misconduct; doing so would violate
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Mr. Hampton's due process rights. See Hill, 472 U.S. at 455. As the Hewitt Court
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explained, "administrative segregation may not be used as a pretext for indefinite
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confinement of an inmate." Hewitt, 459 U.S. at 477 n. 9. The DOC policy as applied
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to Mr. Hampton for the past eight years is contrary to the warning in Hewitt. STG SMU II inmates receive a Classification Review every 180 days. That review is meaningless given the length of Mr. Hampton's eight-year stay in SMU II. Although he has been in solitary confinement for more than eight years, after each hearing the classification score sheet indicates no change in his risk score due to STG violations. As a result, it is a foregone conclusion that Mr. Hampton will remain in SMU II despite the lack of any overt conduct. Indeed, other than "renouncing and debriefing," there is simply nothing that an STG SMU II inmate can do to change his classification status. The 180-day review is not "meaningful review," as required by the Due Process Clause, but a completely meaningless exercise. 2. Mr. Hampton is effectively precluded from debriefing.

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As a procedural prerequisite for release from SMU II, the debriefing requirement effectively forecloses Mr. Hampton's release from administrative segregation. Mr. Hampton is effectively left with no choice but to remain silent because, as the Supreme Court accurately noted, "[t]estifying against or otherwise informing on, gang activities can invite one's own death sentence." Wilkinson, 125 S.Ct. at 2397. More significantly, however, Mr. Hampton cannot "debrief" because he lacks the information required to debrief; he was never a member of the AB, and does not possess the information the DOC demands in order to successfully debrief. Moreover, after spending eight years in solitary confinement, it is hard to imagine what information Mr. Hampton could possibly provide the DOC that would be helpful. If he did know anyone in the AB, they most likely have been discharged

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or transferred. The power structure of prisons is ever-changing, but Mr. Hampton has
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not been part of this process for nearly a decade.
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3.
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The Step Down program is similarly defective.

DOC's new "Step Down" program is equally defective. The Step Down program does not apply until an inmate has been in SMU II for four years. Moreover, once an inmate is selected for the Step Down program, it still takes years to complete and, even then, there is no guarantee that the inmate's classification will change. The Step Down program is entirely discretionary with prison officials. To date, no inmate has

successfully completed this program. Absent any proof that this discretionary program will provide any meaningful relief, this Court should not even consider this program in determining the constitutionality of Mr. Hampton's continued incarceration in SMU II.4 Notably, throughout its brief, the State maintains it is entitled to summary judgment based upon current regulations and procedures, not on the regulations and procedures that have existed through most of Mr. Hampton's eight-year tenure in SMU II. However, these new regulations and procedures are the product of voluntary changes in policy, brought about by the pending lawsuits. It is well settled that "[g]enerally, a case should not be considered moot if the defendant voluntarily ceases the allegedly
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D.

The Terms and Conditions of Mr. Hampton's Confinement Violate Mr. Hampton's Eighth Amendment Right Against Cruel and Unusual Punishment.

The Eighth Amendment to the United States Constitution precludes States from inflicting "cruel and unusual" punishment upon its convicted prisoners. U.S.Const. Amend. VIII. The Eighth Amendment may be violated by a State's deliberate

indifference to the medical needs of its inmates, see Toguchi v. Chung, 391 F.3d 1051, 1056-57 (9th Cir. 2004), or by cruel and unusual conditions of confinement, see Hearns
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v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005).
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Defendants here have violated both

aspects of the Eighth Amendment.
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1.
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Deliberate indifference to Mr. Hampton's medical needs

"The unnecessary and wanton infliction of pain upon incarcerated individuals under color of law constitutes a violation of the Eighth Amendment." Toguchi, 391 F.3d at 1056-57 (quotation omitted). To show deliberate indifference under the Eighth

Amendment, an inmate must show a "serious medical need by demonstrating that "failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1991) (serious medical need exists if failure to treat condition could result in further significant injury or unnecessary infliction of pain), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc). A "serious medical condition" also includes one "that may be life threatening or pose a risk of needless pain or lingering disability if not treated at once." Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991). Here, Defendants' conduct has been deliberately indifferent in at least two contexts. First, Mr. Hampton has experienced multiple painful hernias for at least eight

improper behavior in response to a suit, but is free to return to it at any time. Only if there is no reasonable expectation that the illegal action will recur is such a case deemed moot." Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994).
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years, but has been treated by only hernia belts and abdominal binders. However, as Dr. Doris noted, this conduct not only breaches the applicable standard of care, but demonstrates deliberate indifference: I note that Hampton has had a hernia since 1998, and has been experiencing significant pain since then, for a period of at least eight (8) years. In light of the pain and discomfort Hampton has experienced for many years, as well as the continuous risk of potentially catastrophic complications, I believe that the Arizona Department of Corrections' treatment of Hampton's condition has been deliberately indifferent. PSOF ¶ 179. Similarly, Mr. Hampton has a condition called Barrett's esophagitis. Again, the DOC's failure to treat this condition has been deliberately indifferent: "The continual and ongoing refusal to treat this potentially life-threatening condition demonstrates deliberate indifference by Hampton's medical providers." Id. at 180. As genuine issues of material fact exist with respect to the quality (or lack thereof) regarding Mr. Hampton's treatment, summary judgment on these issues must be denied. . 2. Terms and Conditions of Confinement

Under the Eighth Amendment, "prison officials have a duty to ensure that inmates receive adequate food, clothing, shelter, and medical care." Hearns v. Terhune, 413

F.3d 1036, 1042 (9th Cir. 2005). "Exercise has been determined to be one of the basic human necessities protected by the Eighth Amendment." Id. (quoting LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993)). This includes the right to "outdoor exercise." Id. Likewise, a ban on newspapers, magazines, and books violates an inmate's rights

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under the First and Eighth Amendments. See, e.g., Mann v. Smith, 796 F.2d 79, 82-83
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(5th Cir.1986)(county jail's policy of banning newspapers and magazines violated a
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detainee's First Amendment rights where the state failed to show the ban served a
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legitimate government objective).
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In Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal. 1995), the district court considered a California prison very identical to the case at hand. The court noted that if the particular conditions of segregation being challenged are such that they inflict a serious mental illness, greatly exacerbate mental illness, or deprive inmates of their sanity, then defendants have deprived inmates of a basic necessity of human existence-indeed, they have crossed into the realm of psychological torture. . . . [¶] Courts have recognized that conditions in segregation could cross this line, particularly, where the length of segregation is indefinite or long term." Id. at 1264. Genuine issues of material fact exist as to whether the foregoing conditions, separately or aggregately, have resulted in the denial of basic human necessities, as well as the psychological torture of Mr. Hampton.5 Summary judgment should be denied. III. Conclusion For the reasons set forth herein, Plaintiff Mark Hampton respectfully requests that this Court deny Defendants' motion for summary judgment. RESPECTFULLY SUBMITTED this 18th day of October, 2006.

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ROBERT L. STORRS

By ___/s/ Robert L. Storrs_____ Robert L. Storrs Attorney for Plaintiff

The State correctly asserts that Mr. Hampton may not simply cite the "totality of conditions" to support an Eighth Amendment violation. See State's Motion, at p. 11. However, this restriction applies only to unrelated conditions. Conditions that are related may be considered. See Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9 th Cir. 1986). Moreover, the totality of conditions may also be used to put specific conditions in context. See Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir. 1982). Here, related conditions include the denial of adequate food, coupled with pervasive lighting and denial of medical care, all of which combine to create severe physical stress upon Mr. Hampton. Likewise, the denial of books and magazines, interaction with any other humans, and limited visitation again combine to create intense loneliness and despair.
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CERTIFICATE OF SERVICE ORIGINAL and one copy of the foregoing e-filed this 18th day of October, 2006 with Clerk of the Court United States District Court 401 West Washington Street Phoenix, Arizona 85003 COPY of the foregoing delivered this 18th day of October, 2006 to: Honorable Virginia Mathis United States District Court 401 West Washington Street Phoenix, Arizona 85003 And a COPY mailed to: Catherine M. Bohland, Esq. Office of the Attorney General 1275 West Washington Street Phoenix, Arizona 85007

By: /s/ Robert L. Storrs
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Case 2:03-cv-01706-NVW

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