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. Plaintiff, pursuant to Federal Rule of 56(a) and Local Rule 56.1, submits his separate statement of facts in support of his response to Defendants' motion for summary judgment. I. Response to Defendants' Statement of Facts 1. 2. 3. 4. 5. 6. 7. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed.
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No. 03-CV-1706 PHX NVW PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF HIS RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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8. 9. 10.

Not disputed. Not disputed. Not disputed, but irrelevant. Moreover, Plaintiff disputes the inference

Defendants seek from this statement, obviously suggesting that Plaintiff was a "discipline problem" during his early years of confinement. Plaintiff would note that none of his discipline infractions involved his membership in any "Security Threat Group" ("STG"), nor did they involve acts of violence. 11. 12. 13. 14. Not disputed. But see objection in paragraph 10, above. Not disputed. But see objection in paragraph 10, above. Not disputed. Not disputed as written, but misleading. Mr. Hampton's "eligibility" for

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parole is not affected by his validation as an STG member; however, in light of the
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criteria used by the parole board, membership in an STG is virtually fatal to any
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request for parole. Thus, while Mr. Hampton may be "eligible" to seek parole, his
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validation as an STG member guarantees that the process will be for naught.
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15. 16. 17. 18. 19. 20. 21. 22.

Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed (except for footnote 3). Not disputed. However, Mr. Hampton notes that he has taken at least

one polygraph examination since his validation as an STG member, and requested that the polygrapher ask him if he was a member of the Aryan Brotherhood. Exhibit 3, ¶ 7. Notably, each the polygrapher refused to ask him this central question, despite the DOC's routine reliance on polygraphs in its internal investigations and classification
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decisions, as demonstrated by the policy outlined in paragraph 22 of Defendant's Statement of Facts. See id. 23. Plaintiff does not dispute that this is the current policy of the Arizona

Department of Corrections, but notes that this was a recent change, and that under prior policy, the DOC would review STG-validated inmates only once every 180 days, and then, only as a basic paper review. See DSOF ¶ 23. 24. 25. 26. 27. 28. Not disputed. But see Plaintiff's objection in paragraph 23, above. Not disputed. Not disputed. Not disputed. Not disputed. Plaintiff would note that he not only "believed" it to be

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an exercise in futility, it would have been, in fact, an exercise in futility.
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29.
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Not disputed. Not disputed. Not disputed. Disputed. Mr. Hampton has never done anything that should ever have

30.
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31.
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32.

suggested his membership in the Aryan Brotherhood. In fact, Mr. Hampton has close family members of Hispanic heritage. Exhibit 3, ¶ 10. Ttherefore, Mr. Hampton believes that the investigation and STG-validation process is triggered by something other than belief in an inmate's membership in the STG. Specifically, Mr. Hampton believes that his own STG-validation was retaliation for (1) his insistence on obtaining reasonable medical care for his medical conditions, and (2) his failure to testify in the manner desired by the State of Arizona when he was called as a prosecution witness in Pima County in 1988. Exhibit 3 ¶ 9. 33. 34. Not disputed. Plaintiff does not dispute that this is what the STG Hearing Committee

is supposed to do. What they actually do is a disputed issue of fact.
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35. 36.

Not disputed. Plaintiff does not dispute that all "validated" STG members are housed

in SMU II. Plaintiff questions the reasons for such housing arrangements. 37. 38. 39. Not disputed. Not disputed. Plaintiff does not dispute that a validated STG member may be released

from SMU II if he renounces his STG membership, successfully debriefs, and passes a polygraph test. However, Plaintiff questions Defendants' self-serving description of the purpose of debriefing. For example, Defendants claim that one reason for

debriefing is to "provide additional information regarding the STG's structure, activity and membership that would adversely impact the STG and assist in management of
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the STG population." Defendants provide no explanation of how "debriefing" Mr.
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Hampton, who has been in untra-isolation for over eight years, would provide them
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with any relevant information, even if Mr. Hampton may, at one time, have had such
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information.
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In addition, as Dr. George DeLong has noted, isolation in SMU II breeds "indifference, inability to trust and paranoia." Exhibit 2, p. 3. The DOC then creates a program that requires, as a condition for release from the paranoid-breeding isolation of SMU II, that the inmate "trust" the DOC. Needless to say, the debriefing program is one that works only on paper, and not when applied to real people who have, for better or worse, endured the realities of SMU II. 40. Not disputed. However, the Step Down program is completely

irrelevant to the present matter. First and foremost, the Step Down program is a voluntary change in policy that the DOC enacted in March of this year. The Step

Down program does not change the analysis of the constitutionality of what the DOC has done to Mr. Hampton for the prior eight years, nor impact his ability to obtain injunctive relief. See Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th
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Cir. 1994) ("Generally, a case should not be considered moot if the defendant voluntarily ceases the allegedly 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"). Moreover, the Step Down program is completely discretionary with the DOC. Even if Mr. Hampton were (1) selected to the program and (2) successfully completed its requirements, the actual transfer of an inmate back to anything resembling general population is discretionary. Again, it requires an inmate to put his complete trust in the DOC which, in the case of Mr. Hampton, would come after Mr. Hampton spent a full decade in the paranoia-producing confines of SMU II. 41. Not disputed, subject to the objections noted above. Not disputed, subject to the objections noted above. Not disputed, subject to the objections noted above. Not disputed, subject to the objections noted above. Not disputed. Not disputed, other than the fact that the evidence used against Mr.

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42.
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43.
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44.
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45.
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46.

Hampton is not adequately identified. The photograph of Mr. Hampton was taken years before the DOC has announced that membership in the Aryan Brotherhood ("AB") would be subject to sanctions and disciplinary proceedings. See Exhibit 3, ¶¶ 2-3. The alleged "associations" referenced in paragraph 46 also occurred before

September of 1995, the date the DOC prohibited membership in the Aryan Brotherhood. Id. 47. 48. 49. Not disputed. Not disputed. Mr. Hampton does not dispute that he would be "eligible" for release

from SMU II if he "successfully" debriefs or "successfully" completes the Step-Down program. Mr. Hampton disputes that he "chooses not to debrief." Due to his lack of
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knowledge regarding the AB (as he was never a member), he cannot debrief and, furthermore, even if he did, he would simply put his life at risk at the hands of a gang of which he was never a member. 50. 51. 52. Not disputed. Not disputed. Disputed. Although the Defendants claim that SMU II inmates can "talk

to staff several times during the day," such talk is necessarily limited, certainly cannot be characterized as a "conversation," and depends, obviously, on the staff person's willingness and desire to talk. Moreover, while counselors are available to talk to inmates during the business week, their actual availability is much more limited and based on appointments and availability.

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53.
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Disputed. While SMU II inmates have "access" to a library, they are

not permitted to visit it. They can only request soft-bound books from a limited supply. Moreover, as Dr. DeLong explained:
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An inmate on SMU does have the right to books and periodicals. However, he can only receive these direct from the publisher by subscription. A friend or relative cannot send a previously read issue or even one purchase and not read directly to the inmate. Books must be soft-cover and also come from either the prison library, which the inmate never visits, or directly from a bookseller such as Amazon.com. Exhibit 2, p. 4. 54. 55. 56. 57. Not disputed. Not disputed. Not disputed. Not disputed. However, for the period April 2000 to late 2004, Mr.

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Hampton had no ability to purchase sweats from the commissary. Exhibit 3, ¶ 8.
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Thus, Mr. Hampton was subject to the cold winter temperatures with no ability to
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obtain relief during this period.
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58. 59. 60. 61.

Not disputed. Not disputed. Not disputed. Mr. Hampton does not dispute that he receives 2800 calories per day,

which is less than the general population receives. However, he disputes that it is appropriate for his alleged "less-active" lifestyle. The DOC admits that inmates are permitted to exercise in their cells, see DSOF ¶ 88, which inmates routinely do due to the lack of any other activities in their isolation in their 10' x 8' cell. Mr. Hampton further notes that he is not permitted to visit the commissary. See DSOF ¶ 63. 62. relative. Not disputed, other than the description of what is "typical" is highly

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63.
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Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Objection. Children's nightlights vary considerably in their illumination

64.
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65.
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66.
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67. 68. 69.

and, as such, this statement is vague and ambiguous. 70. Not disputed. In other words, cells are fully illuminated but for 6 hours

during the week, and 4 hours on weekends. 71. 72. Not disputed. Plaintiff does not dispute that the security light may serve a penological

purpose of enabling officers to perform health and bed-welfare checks every hour. However, the primary purpose is to further the psychological deterioration of the inmates in SMU II. The penological purposes can be effected in other ways. 73. Not disputed.
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74.

Not disputed. However, the perforated cell fronts were not chosen by

the inmates, but by the DOC and thus, to the extent that they impede the officer's visibility, it was because they chose the cell fronts. 75. 76. 77. 78. 79. 80. 81. 82. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Not disputed. Mr. Hampton does not dispute that he now receives two hours of

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83.
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84.
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85.
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86.
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87.

"exercise" three times per week. However, to qualify it as "outdoor" exercise is a stretch. The exercise yard is open to the sky; otherwise, there is no "outdoor"

component to the exercise. The yard is only 23' by 11', with 18 foot walls. Thus, only the sky, and no other aspect of the "outdoors," is visible to the inmate using the yard. Obviously, inclement weather precludes the effective use of the yard. Moreover, as Dr. DeLong noted: Exercise is extremely limited, and of course, solitary. . . . Presently exercise is in a completely enclosed "yard" open to the sky with a handball available. Use of the handball, however, adds to the noise on the unit for the other inmates and most choose not to use it rather than further irritate their already oversensitive neighbors. Exhibit 2, p. 4.
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Notably, this "new" policy was a direct result of the civil lawsuits filed by Mr. Hampton and other SMU II inmates. See Exhibit 7. Finally, as noted above, the DOC's voluntary change of policy does not moot Mr. Hampton's ability to obtain injunctive relief for the prior policy, which was only one hour of exercise. See paragraph 40, supra. 88. Not disputed. Of course, Mr. Hampton's ability to exercise in his cell is

made more difficult by his limited diet and access to health care. 89. 90. 91. 92. Not disputed, other than use of the term "outdoor." Not disputed, other than the use of the term "outdoor." Not disputed, other than the use of the term "outdoor." Disputed, including the use of the term "outdoor." The exercise yard

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does not ensure "exposure to the sun." Given the 18 foot walls, the sun itself is rarely
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seen. At most, some natural light and a small section of sky is visible to the exercising
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inmate.
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93.
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Not disputed, other than the use of the term "outdoor." Mr. Hampton disputes that SMU II inmates have the same access to

94.

medical, dental and mental health services as general population inmates. He does not dispute the procedure for obtaining such services. 95. 96. 97. Not disputed. Not disputed. Not disputed, although the section following "[w]hile he states that he

was never seen" is completely irrelevant. Mr. Hampton put in a request to see a mental health professional. He was not permitted to see such a professional. 98. documented. 99. Disputed. In reviewing Mr. Hampton's medical records, Dr. Doris Mr. Hampton does not dispute that this is the way care is supposed to be

noted the following medical concerns and issues:
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Hypertension Hepatitis C Inguinal Hernia / Incisional Hernia Low back pain Gastroesophageal Reflux Disease Abdominal Pain Weight loss Exhibit 1, ¶ 3. Mr. Hampton has raised his overall medical treatment, for each of these issues, in his complaint. 100. General objection: With respect to paragraphs 100 through 164,

Plaintiff asserts a general objection of relevance and misstatement of the evidence.
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Specifically, Dr. Sharp purports to "review" Mr. Hampton's medical records for
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specific blocks of time, identifies the number of "HNR's" submitted by Mr. Hampton,
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and compares this to the number medical visits Mr. Hampton received, concluding
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that everything is "A okay." However, Dr. Sharp misses the point. A medical visit
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that does not include any treatment for the medical concern at issue is simply a waste of time. The number of HNRs reflects the DOC's continual refusal to treat these serious medical problems. In fact, Dr. Doris has opined that Mr. Hampton's medical care rose to the level of deliberate indifference with respect to two separate issues, namely, treatment of his multiple hernias, and treatment of his Gastroesophageal Reflux Disease. Dr. Doris has opined: 6. Hampton was described in the materials as having a hernia which was said to be reducible and therefore treated with hernia belts and multiple abdominal binders. I believe that this does NOT meet the standard of care in the community for an ongoing hernia, especially one accompanied with pain symptoms. 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
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electively repair such herniae to prevent these potentially catastrophic complications. 7. 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. 8. In addition, Hampton had undergone esophageal duodenoscopy (EGD), a procedure which identified a condition called Barrett's esophagitis, known in common language as peptic ulcer disease. 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. 9. The continual and ongoing refusal to treat this potentially life-threatening condition demonstrates deliberate indifference by Hampton's medical providers. Exhibit 1, ¶¶ 6-9 (emphasis added). Other than the foregoing objection, Plaintiff does not dispute paragraph 100. 101. 102. 103. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Plaintiff

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104.
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105.
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notes, however, that his weight loss has continued to the present, and he was down to approximately 120 pounds at one point. Exhibit 5.
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106.

Not disputed, subject to the objection noted in paragraph 100. Plaintiff

notes, however, that his weight loss has continued to the present, and he was down to approximately 120 pounds at one point. 107. 108. 109. 110. 111. 112. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Under the

circumstances, treatment by binder was an inappropriate and deliberately indifferent treatment.
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113.
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Not disputed, subject to the objection noted in paragraph 100.

Under

the circumstances, treatment by binder was an inappropriate and deliberately indifferent treatment.
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114.
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Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Under the

115. 116.

circumstances, treatment by binder was an inappropriate and deliberately indifferent treatment. Similarly, the treatment for the esophigal condition was also inappropriate and deliberately indifferent. 117. 118. 119. 120. 121. 122. 123. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100.
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124. 125. 126. 127.

Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. As Dr.

Doris stated: "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." Exhibit 1, ¶ 8. This constitutes continued deliberate indifference to Mr. Hampton's serious medical needs. Id. 128. Not disputed, subject to the objection noted in paragraph 100. A binder

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was inappropriate treatment for Mr. Hampton's hernias, now in their 6th year of
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manifestation.
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129.
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Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100.
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130.
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131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142.

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143.

Not disputed, subject to the objection noted in paragraph 100; see also

Paragraph 127. 144. 145. 146. 147. 148. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100; see also

Paragraph 127. 149. 150. 151. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. This

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152.
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153.
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154.
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155.
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constituted deliberate indifference. 156. 157. 158. 159. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Disputed. Mr. Hampton's weight was not up to 187 pounds. Moreover,

it had been 21 years since Mr. Hampton was last "on street." His addiction, whatever it may have been then, was no longer relevant. Any "inappropriate noises, grimaces without provocation" would be the product of the present 8 years of psychological torture, not some long-gone addiction from 21 years hence. 160. 161. 162. Not disputed, subject to the objection noted in paragraph 100. Not disputed, subject to the objection noted in paragraph 100. Disputed. See Paragraphs 177-180, below.
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163. 164.

Disputed. See Paragraphs 177-180, below. Disputed. See Paragraphs 177-180, below.

II.

Plaintiffs' Separate Statement of Facts 165. In July of 1986, Plaintiff Mark Hampton was sentenced to life

imprisonment in the Arizona Department of Corrections ("DOC"); however, he was eligible for parole after 25 years. DSOF ¶ 10. 166. 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 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

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Aryan Brotherhood was subject to sanctions." DSOF ¶ 31.
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167.
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In October of 1998, the DOC advised Mr. Hampton that it was instituting DSOF ¶ 46. At the hearing, the DOC

STG-validation proceedings against him.
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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 and including Mr. Hampton's name. See Exhibit 3, ¶¶ 2-3. 168. As DOC Lieutenant William Powell noted, at least one of the lists was

found in the possession of a notoriously unreliable inmate. Exhibit 4, p. 40. Moreover, the lists also included names of individuals who were not known to be AB members. Finally, the lists were undated. See generally Exhibit 4, pp. 37-44. Thus, like the first three items of evidence, it was entirely possible that the lists pre-dated the August 1995 ban on AB membership. Id.
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169.

Mr. Hampton was then transferred to the Eyman, Special Management

Unit II ("SMU II" or "Supermax") DSOF ¶ 48. 170. Mr. Hampton was first assigned to SMU II in February of 1999. Id. Mr.

Hampton's cell measures approximately 10 feet by 8 feet, and has no windows. Exhibit 3, p 4. The cell 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. 171. For two hours three times per week Mr. Hampton is allowed out of his cell

for exercise and a shower. DSOF ¶ 58. 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. Exhibit 3, ¶ 5. The "recreation area" is approximately

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ten feet away from Mr. Hampton's cell. This area consists of a 11 x 23 foot empty room
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with 18 foot high walls. DSOF ¶ 88.
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172.
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Other than the shower and exercise time, Mr. Hampton is 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. DSOF ¶ 59. Communication with visitors must take place through a plate glass window. Visitors to SMU II, including medical personnel, have to wear bulletproof jackets and protective eye goggles. Id. 173. At least one light is on in Mr. Hampton's cell constantly, even at night.

DSOF ¶ 70. 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 nonexistent, illuminating the entire cell. 174. Mr. Hampton receives three meals per day (two on weekends), providing

2800 calories per day. DSOF ¶ 61. However, Mr. Hampton is not entitled to purchase any food items from the prison commissary (except during the month of December), nor receive any food packages of any type from families or friends. DSOF ¶ 63; Exhibit 2,
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p. 4. Mr. Hampton has lost considerable weight during his tenure in SMU II, down to 120 pounds at one point. Exhibit 5. 175. 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. Likewise, the books that an SMU II inmate can read must be sent directly from a publisher or other book retailer, such as amazon.com. Exhibit 2, p. 4. 176. Although an SMU II inmate can receive soft bound books from the prison

library, they are not permitted to visit the library. Id. 177. Mr. Hampton's medical needs have been virtually ignored since his

removal to SMU II. Since at least 1998, some eight years ago, Mr. Hampton has
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suffered from severe and ongoing and debilitating low back pain, multiple hernias,
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hypertension, Hepatitis C, Gastroesophageal Reflux Disease, abdominal pain, and weight
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loss. Exhibit 1, ¶ 3.
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178.
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The hernias, in particular, have been the source of constant pain and

discomfort. Moreover, they are potentially life-threatening. However, because they 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. 179. 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. ¶ 6 (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).

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180.

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. ¶ 8. In short, the DOC has left Mr. Hampton confined for years in the SMU II with two separate and untreated potentially life threatening conditions. 181. 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." DSOF ¶ 39. 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 (3) provide other information so that the DOC can decide whether the inmate needs further protection. Id. 182. 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. DSOF ¶ 40. The new program does not guarantee release from SMU II or eliminate the otherwise unconstitutional defects in DOC's STG policy. Id.

23

183.
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The new Step Down program requires inmates to be in SMU II for four

years before participating. DSOF ¶ 41. Then, the inmate must complete another 24 months without any gang-related activity; in other words, an inmate must spend at
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least six years in SMU II. Id. Only then, if the inmate complies with other certain requirements, the inmate may be moved out of SMU II. The requirements include (1) avoiding unsafe activities, (2) successfully completing a polygraph test, (3) completing anger management and drug rehabilitation courses, (4) psychological counseling, (5) peer group activities, and (6) evaluations by the psychology department staff and the Staff Inmate Reintegration Team. Id. at ¶ 42. The Step Down program must be completed within 18 months. Id. RESPECTFULLY SUBMITTED this 18th day of October, 2006. ROBERT L. STORRS

By __/s/ Robert L. Storrs____ Robert L. Storrs Attorney for Plaintiff

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CERTIFICATE OF SERVICE ORIGINAL and one copy of the foregoing 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 hand-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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