Free Objection - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Mark E. Hampton, Plaintiff, v. Charles Ryan, et al., Defendants. Defendants1, through undersigned counsel, hereby submit their response and objections to Plaintiff's Statement of Facts in Support of his Cross Motion for Summary Judgment. (Dkt. 84) I. DEFENDANTS' RESPONSE AND OBJECTION TO PLAINTIFF'S STATEMENT OF FACTS Response to Plaintiff's Statement of Fact ("PSF)" ¶ 165: Defendants admit that Hampton was sentenced in 1986 to life in prison in the Arizona Department of Corrections ("ADC"). However, he is not eligible for parole until he serves twenty-five calendar years; i.e. August 6, 2010. (Dkt. 60 at ¶ 10.) No: CV03-1706-PHX-NVW (VAM) DEFENDANTS' OBJECTIONS TO PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF THEIR RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 66)

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Dora Schriro, Conrad Luna and Barbara Shearer.
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Response to PSF ¶ 166: Plaintiff's statement as to the extent that the ADC announced that the Aryan Brotherhood (AB) was designated as a Security Threat Group ("STG") more than a decade after Mr. Hampton was first remanded to the custody of the ADC is irrelevant to his lawsuit and therefore not admissible. See Rule 401-402. The Notice to Inmate Population specifically states: "Effective thirty days from this date, any inmate who exhibits any prohibited behavior, any activity or identification with the Aryan Brotherhood shall be subject to management sanctions specified in Management Order #57...." (emphasis added) (Dkt. 60, Exhibit A, Attachment 2.) Response to PSF ¶ 167: Plaintiff's statement that the ADC provided invalid, improper and questionable evidence against Mr. Hampton is a conclusion not supported by the record and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 602 Fed. R. Evid. As such, the statement is inadmissible because it is conclusory, speculative and selfserving. See Rule 801-802, Fed. R. Evid.2 Response to PSF ¶ 168: Plaintiff's statement is irrelevant. See Rule 401-402, Fed. R. Evid. It is not supported by the record and is inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 602, Fed. R. Evid. Plaintiff states that at least one of the lists was found in the possession of a notoriously unreliable inmate. Plaintiff attempts to support this

proposition by attaching Exhibit 4, a transcribed deposition of Lieutenant William Powell ("Powell"), taken in a wholly unrelated lawsuit in 2000. Powell states in the deposition that he would not ask inmate Mace what his motivation was for making up a list he had in his possession, because inmate Mace wouldn't have admitted to it being an AB list and Powell would be spinning his wheels to determine why the list existed since he believed that inmate Mace wouldn't be truthful about the list. (Dkt. 66, Exhibit 4, p. 40, lines 2-10.)
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Plaintiff cites Exhibit 3 in support of this statement, however the undersigned believes that Plaintiff intended to cite to Exhibit 1, Affidavit of Mark Hampton. Plaintiff's exhibits 1, 2 and 3 are not marked on undersigned counsel's copy and incorrectly marked on the electronic filing system. Case 2:03-cv-01706-NVW Document 72 Filed 11/13/2006 Page 2 of 7

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However, Hampton's name was found on a list of names in the possession of two other inmates, neither of which was inmate Mace. (Copy of ADC Memorandum dated

December 15, 1998, regarding Hampton's STG appeal was provided to inmate Hampton in redacted format. A copy of that memorandum can be provided to the Court for in camera inspection.) Furthermore, Plaintiff alleges that the lists could "possibly" pre-date the August 1995 ban on AB membership. Plaintiff is incorrect. Both lists were recovered in 1997. (ADC Memorandum dated October 19, 1998, was provided to Hampton in redacted format. A copy of that memorandum can be provided to the Court for in camera

inspection.) In addition, Exhibit 4 was taken during the course of a case that has been vacated and is of no precedential value. Koch v. Lewis, 216 F.Supp.2d 994, 997-98 (D. Ariz. 2001), vacated as moot, 399 F.3d 1009 (9th Cir. 2005). Further, Exhibit 4 lacks proper

certification establishing its authenticity and is inadmissible for several reasons: 1) it is not a statement of a party opponent; 2) it is hearsay; 3) Powell lacks personal knowledge of Plaintiff; 4) it lacks proper foundation; 5) it lacks proper authentication; and, 6) Defendants did not get an opportunity to cross examine the witness. See Rule 106, 602, 701, 801-802, Fed. R. Evid. Response to PSF ¶ 169: Plaintiff's statement is not disputed to the extent that as a result of his validation he was transferred to SMU II. February 8, 1998. (Dkt. 60 at ¶ 48.) Response to PSF ¶ 170: Plaintiff's statement is not disputed. Response to PSF ¶ 171: Plaintiff's statements regarding the distance of the shower and outdoor exercise area from his cell is not relevant. See Rule 401-402, Fed. R. Evid. Defendants do not object to the balance of Plaintiff's statement. Hampton was transferred on

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Response to PSF ¶ 172: Plaintiff's statements as to what visitors or medical personnel must wear while inside SMU II is irrelevant to his lawsuit. See Rule 401-401, Fed. R. Evid. Defendants do not object to the balance of Plaintiff's statement. Response to PSF ¶ 173: Plaintiff's statement that the 7-watt bulb illuminates the entire cell is not supported by the record and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 602 Fed. R. Evid. Response to PSF ¶ 174: Plaintiff's statement is correct to the extent that between the period of June 23, 2003 and July 1, 2003, his weight dropped down to 120 pounds. (Medical records at 63, 60.) However, during this time period the records make frequent mention to Hampton's possible voluntary vomiting, in which medical personnel request security staff to monitor Hampton while he eats meals and for a subsequent two-hour period. After this time period, Hampton's weight began to increase steadily with an increase in September, 2003 (143 pounds) to a last recorded weight in the medical records of 187. Hampton is 5-feet, 8-inches tall. Response to PSF ¶ 175: Plaintiff's statement is unsupported by the record and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 602 Fed. R. Evid. Exhibit 2, used in support of the statement is inadmissible. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Id. Exhibit 2 is a statement of Dr. DeLong and is not properly

authenticated. In addition, it does not appear that Dr. DeLong has personal knowledge of Plaintiff, but rather read some documents in support of Defendants' Motion for Summary Judgment and compared them to documents from the vacated decision in Koch. Further, inmate receipt of publications is governed by Department Order 909. Response to PSF ¶ 176: Plaintiff's statement is not disputed.

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Response to PSF ¶ 177: Plaintiff's statement as to his medical needs being virtually ignored since his removal to SMU II is a conclusion and self-serving and not supported by the record and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 403, 602 Fed. R. Evid.; Dkt. 60 at ¶¶ 103-162.) Response to PSF ¶ 178: Plaintiff's statement that his hernias are potentially lifethreatening lacks foundation. Absent a physical examination in this case, Dr. Doris lacks the personal knowledge to make factual statements that would be admissible in evidence, and therefore fails to show affirmatively that the affiant is competent to testify to the matters stated therein. Fed. R. Civ. P.; Rule 602 Fed. R. Evid. Declaration of Dr. Sharp ("Sharp Supplemental") at ¶¶ 5-6.) Response to PSF ¶ 179: It is undisputed that Dr. Doris did not physically examine Plaintiff. Absent a physical examination in this case, Dr. Doris lacks the personal (See Supplemental

knowledge to make factual statements that would be admissible in evidence, and therefore fails to show affirmatively that the affiant is competent to testify to the matters stated therein. Fed. R. Civ. P.; Rule 602, 806, Fed. R. Evid. (See Sharp Supplemental at ¶¶ 5-6.) Response to PSF ¶ 180: Plaintiff's statement that the ADC has been deliberately indifferent in treating his GRD is a legal conclusion and therefore inadmissible. See Rule 403, 602 Fed. R. Evid. His statement that he was confined for years with two separate and untreated potentially life threatening conditions is a conclusion without foundation and unsupported by the evidence and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 602 Fed. R. Evid. Response to PSF ¶ 181: Plaintiff's reference to release from SMU II custody as escape his lifelong solitary confinement is misleading as it misstates Defendants' Statement of Facts3 and therefore inadmissible. See Rule 403, Fed. R. Evid.
Plaintiff cites Defendants' Statement of Facts ("DSOF") (Dkt. 60) at paragraph 39 to support his statement.
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Response to PSF ¶ 182: Plaintiff's statement, that the new program does not guarantee release from SMU II or eliminate the otherwise unconstitutional defects in DOC's STG policy, is conclusory, self-serving, conjecture, speculative, assumes facts not in evidence and hearsay and as such is not admissible. See Rule 56(e), Fed. R. Civ. P.; Rule 602, 801-802, Fed. R. Evid. Response to PSF ¶ 183: Plaintiff's statement that an inmate must spend six years in SMU II before participating in the Step-Down Program is not supported by the purported statement of fact and therefore inadmissible. See Rule 56(e), Fed. R. Civ. P.; Rule 602, 801-802. Departmental Order ("DO") 806 states that an inmate is not eligible to participate in the Step-Down Program until they complete 48 months as a validated STG member and cannot apply to that Program unless they have not participated in certain activities for the 24 months preceding the application. (Dkt. 60, Exhibit A, Attachment 3, 806.08, 1.1.) As such, where an inmate has been validated for 4 years and has no disiciplinaries for the preceding 24 months, they may apply for the Program. (Id.) RESPECTFULLY SUBMITTED this 13th day of November, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

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Original and one copy e-filed this 13th day of November, 2006, with: Clerk of the Court United States District Court 401 West Washington Phoenix, Arizona 85003 Copy mailed the same date to: Robert L. Storrs Robert L. Storrs, P.C. 45 W. Jefferson, Suite 803 Phoenix, AZ 85003-2317 Attorney for Plaintiff s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS04-0363/RSK:G04-20823
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