Free Statement - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Armando Bermudez, No. CV 03-1673 PHX SMM (MS) Plaintiff, v. Charles Ryan, et al., Defendants. Defendants,1 by and through undersigned counsel, submit the following Statement of Facts in support of Defendants' Motion for Summary Judgment: 1. Plaintiff Armando Bermudez ("Bermudez"), No. 130901, is an inmate STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

currently in the custody of the Arizona Department of Corrections ("ADC"). (Bermudez's Redacted Arizona Inmate Management System ["AIMS"] Report at 1 attached as Attachment D to Exhibit 1.) Bermudez is serving three concurrent twelve-year sentences and one concurrent one and a half year-sentence following his felony convictions for three counts of aggravated assault and one count of felony flight from law enforcement. (Id.) The ADC currently houses Bermudez in Arizona State Prison Complex ("ASPC")-Eyman,

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Charles Ryan, Conrad Luna, and Lisa Fansler.
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Special Management Unit ("SMU") II. (Id.) Bermudez is scheduled for release from prison in April 2006. (Id. at 1) 2. On August 28, 2003, Bermudez filed an Original Complaint ("Complaint")

pursuant to 42 U.S.C. § 1983 ("§ 1983"). [Dkt. # 1 (Copy attached hereto as Exhibit 4).] The Complaint alleges that Defendants violated his constitutional rights when they: (1) denied him due process by indefinitely confining him in SMU II as a validated Security Threat Group ("STG") member without meaningful review (Count I); (2) subjected him to conditions of confinement that violate the Eighth Amendment right to be free from cruel and unusual punishment (Count I); and (3) retaliated against him for asserting his Fifth Amendment rights, using excessive force, in violation of the Eighth Amendment (Count III). (Id. at 4-6A.) Bermudez seeks prospective and declaratory injunctive relief. (Id. at 7.) 3. Bermudez further alleges that because of Defendant's acts, he has suffered

violations of his recognized liberty interest to be free from atypical and significant hardships, his right to be from arbitrary and capricious treatment, and his right to be free from an indefinite punitive SMU-type confinement. (Id. at 4-5.) In addition, he claims Defendants subjected him to the denial of life's necessities and potential future physical, emotional, and/or psychological harm. (Id. at 6.) 4. Defendants filed a Motion to Dismiss. [Dkt. #14 (Copy attached hereto as

Exhibit 5).] The Court dismissed Count I of Bermudez's complaint to the extent that Bermudez asserted a denial of due process in his original validation hearing based on the statute of limitations. [Dkt. # (Copy attached hereto as Exhibit 6).] To the extent that Bermudez alleges a denial of due process in the reviews of his STG status, Count I remains. (Id. at 9.) Additionally, Counts II and III remain. (Id.)

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5.

The ADC employs Todd Gerrish as the Supervisor of the STG Unit.

(Declaration of Todd Gerrish ("Gerrish Declaration") ¶ 2 attached as Exhibit 1.) 6. The ADC employs Stacy Crabtree as the Classification Manager.

(Declaration of Stacy Crabtree ("Crabtree Declaration") ¶ 1 attached as Exhibit 2.) 7. The ADC employs Carson McWilliams as the Deputy Warden of SMU II.

(Declaration of Carson McWilliams ("McWilliams Declaration") ¶ 1 attached as Exhibit 3.) 8. Department Order ("DO") 806, effective November 1, 1999, governs STG

policy. The purpose of this policy is to minimize the threat posed by inmate gang or ganglike activity to the safe, secure, and efficient operations of the Arizona prison system. DO 806 provides for the identification, validation, and re-classification of inmates determined to be members of an STG. (Gerrish Declaration ¶ 3.) 9. ADC policy defines a STG as: "[a]ny organization, club, association or

group of individuals, either formal or informal (including traditional prison gangs), that may have a common name or identifying sign or symbol, and whose members engage in activities that include, but are not limited to the following: planning, organizing, threatening, financing, soliciting, committing or attempting to commit unlawful acts or acts that would violate the ADC's written instructions, which detract from the safe and orderly operation of prisons. These activities may include interaction with non-inmates, such as family members, other relatives, former inmates, and other `street' associates." (Gerrish Declaration ¶ 4.) 10. On July 3, 2000, the ADC informed all inmates that effective August 2,

2000, the Surrenos had been designated as a STG. (Gerrish Declaration ¶ 5.) The notice went on to inform inmates that certain activity and identification with the Surrenos shall

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subject them to Department Order sanctions and other appropriate disciplinary action and prosecution. (Id.) 11. When staff suspects an inmate of being an STG member, officials conduct an

investigation using a specified scoring system. Points are given for such categories of indicators as gang-specific tattoos, possession of gang-related literature, self-admissions, and voluntary association with other gang members, including group photographs. When the inmate suspect qualifies for a validation hearing, by meeting validation criteria, the STG Hearing Committee prepares and reviews a validation packet. (Gerrish Declaration ¶ 6.) 12. The validation packet is composed of 14 different elements: (1) STG

Validation Summary, (2) STG Identifying Questionnaire, (3) STG Worksheets (1-5), (4) STG Criteria (A-N), (5) STG Hearing Notification, (6) STG Hearing Postponement Request, (7) STG Witness Request/Response, (8) STG Suspect Defense, (9) STG Hearing Results, (10) STG Debriefing Request/Report, (11) STG Appeal, (12) Wardens-STG Packet Review, (13) STG Classification Notification, and (14) Addenda--including STG packet remanded for further evidence, past STG validation summary, STG notification, STG results. (Gerrish Declaration ¶ 7.) 13. The STG Hearing Committee examines the underlying facts for each

category in the STG Criteria. The STG criteria is composed of 14 categories: (A) SelfProclamation, (B) Tattoos, (C) Symbolism, (D) Documents, (E) Publication, (F) Authorship, (G) Court Records, (H) Group Photos, (I) Association, (J) Contacts, (K) Confidential Informant Information, (L) Membership, (M) Media, and (N) Other Agency Information. (Gerrish Declaration ¶ 8.) 14. ADC policy requires that inmates receive notice of their validation hearing.

At the hearing, an inmate may present a defense. (Gerrish Declaration ¶ 9.) 4

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15.

After the committee validates an inmate as an STG member, he may

renounce the STG membership, accept the validation, or appeal the decision of the Hearing Committee to the STG Validation Committee. (Gerrish Declaration ¶ 10.) 16. An inmate is required to notify the STG Hearing Committee of his decision

to appeal validation. (Id.) On appeal, the inmate may challenge the specific categories that the committee used to validate him. (Id.) 17. For the safety and protection of the ADC staff and other inmates, validated

STG members are housed in a maximum-security facility--SMU II. (Gerrish Declaration ¶ 11.) 18. SMU II is a high-security facility for inmates with high-risk needs, such as

validated STG members. (Gerrish Declaration ¶ 11.) Officials designed SMU II, which opened for operation in 1996, to provide an environment where maximum custody and control of the inmate population is accomplished. (McWilliams Declaration ¶ 4.) It operates within established penological standards and ADC guidelines to ensure that inmates, staff, and policy are maintained. (Id.) 19. Inmates housed in the SMU II fall under the following categories: (1)

Validated STG members, (2) Death row inmates, (3) Inmates under investigation for protective custody, and (4) Inmates with high classification scores. Officials divide the inmates in SMU II into groups. Each group consists of ten inmates housed in the same area. (McWilliams Declaration ¶ 5.) 20. Cell lights remain on at all times, but are not maintained at constant

illumination. During the day and early evening, the cell lights are turned on at normal illumination. However, the lights are significantly dimmed between the hours of 10 pm and 4 am (Sunday-Thursday) and midnight to 4 am (Friday-Saturday). The lighting

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fixtures produce 115 watts of power during the day. When dimmed the lighting fixtures produce seven (7) watts of power. (McWilliams Declaration ¶ 6.) 21. There are several penological reasons for requiring at least dimmed lighting

at all times in the SMU II. (McWilliams Declaration ¶ 7.) 22. Dimming the lights allows the inmate to sleep while simultaneously enabling

the staff to conduct regular bed-welfare checks during the night. During a bed-welfare check, an officer observes the inmate, including the rise and fall of his chest to determine whether the inmate is breathing. (McWilliams Declaration ¶ 8.) 23. Dimmed lighting helps to ensure the safety of the officers. The inmates

housed in the SMU II represent some of the most dangerous and violent inmates in ADC custody. These inmates, if given the opportunity, may throw objects, including human excrement or weapons, at officers during welfare checks. (McWilliams Declaration ¶ 9.) 24. Finally, even with dimmed lighting, inmates in the SMU II are still able to

create weapons and other contraband in their cells. Allowing the inmates to operate during several hours of complete darkness every day would severely hamper the ability of the ADC to maintain a safe environment in the SMU II. (McWilliams Declaration ¶ 10.) 25. The ADC determined that the current lighting policy rather than flashlights

created greater visibility with fewer disturbances to the inmates. The ADC discontinued flashlight use for nighttime welfare checks because: inmates complained about officers shining flashlight in their eyes while they slept, flashlight welfare checks took longer to complete, flashlights reduced security because officers could not look down the cellblock, and flashlight batteries were unreliable and replacements were not always readily available. (McWilliams Declaration ¶ 11.)

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26.

During his deposition, Bermudez admitted that he sleeps seven or eight hours

each night, despite the dimmed lighting in his cell. (Deposition of Armando Bermudez ("Bermudez Deposition") at 46 [Copy attached hereto as Exhibit 7].) 27. There are two correctional officers per pod on day shift to handle all aspects

of daily prison life for the ten inmates of the pod. One officer is stationed in the control room and controls all the doors in the pod. The other officer attends to all the other daily activities such as taking inmates to recreation and shower, laundry, distributing meals, delivering and collecting mail, conducting welfare and security checks, and facilitating health, mental and dental visits. (McWilliams Declaration ¶ 12.) 28. Inmates in SMU II can talk to staff several times during the day. Counselors

are available to talk to inmates five times a week and answer questions face to face. (McWilliams Declaration ¶ 13.) 29. Inmates in SMU II have access to medical, dental, and mental health services

and need only submit the paperwork to request these services. (McWilliams Declaration ¶ 14.) 30. Inmates in the SMU II have access to a library that contains legal materials.

Inmates may check out available legal materials several times a week. Inmates in SMU II can obtain reading and other materials through the mail including magazines, books, and music tapes. (McWilliams Declaration ¶ 15.) 31. Inmates in SMU II may have certain property in their cells including a

walkman radio-cassette player and a 13-inch television. (McWilliams Declaration ¶ 16.) 32. Inmates in the SMU II are not permitted to pass notes or share legal

documents with other inmates. (McWilliams Declaration ¶ 17.) 33. Validated STG members can communicate with the other inmates in their

group from cell to cell, not face to face. (McWilliams Declaration ¶ 18.) 7

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34.

Validated STG members wear either a jumpsuit or sweats purchased from

the inmate store. They can submit their sheets and clothes for laundering once each week. (McWilliams Declaration ¶ 19.) 35. Validated STG members are allowed one visit a week for a maximum of two

hours. An inmate may have up to four visitors present at one time. During a visit, an inmate sits behind glass and may not have any physical contact with his visitors. (McWilliams Declaration ¶ 20.) 36. Validated STG members also receive one five-minute phone call per week.

(McWilliams Declaration ¶ 21.) 37. Further, validated STG members receive one hour of recreation in an

enclosed recreation area three days a week. (McWilliams Declaration ¶ 22.) Only one inmate is allowed into the recreation area at a time. (McWilliams Declaration ¶ 22) ADC policy also allows inmates the freedom to exercise in their cells. (McWilliams Declaration ¶ 22.) 38. The recreation area has a cement floor, cement walls, and a steel mesh top,

which allows fresh air and sunlight into the area. No exercise equipment is stored in the enclosure, but I/5 inmates may request the use of a handball during their recreation sessions. Ten inmates share one recreation area. Only one inmate is allowed into the recreation area at a time for security reasons. Therefore, the inmates must use the

recreation area in shifts. (McWilliams Declaration ¶ 23.) 39. During his deposition, Bermudez admitted that two ADC doctors have

advised him to avoid strenuous exercise because he suffers from an inguinal hernia. (Bermudez Deposition at 33-34.) resulted from him "working out." Bermudez stated that the inguinal hernia probably (Id. at 33.) Consistent with his doctors' orders,

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Bermudez stated that he only walks around the recreation area during his exercise time. (Id.) 40. Validated STG members receive three showers a week, which correlates

with the three exercise days they receive. There are five inmates to one shower so the inmates must shower in shifts. Inmates have a sink in their cell, to wash up on nonrecreation days, as well as a toilet and bed. (McWilliams Declaration ¶ 24.) 41. The ADC feeds validated STG members a diet consistent with a less-active

lifestyle. A nutritionist determines the adequate amount of calories for inmates with low levels of activity. Inmates are fed three times a day during the week and twice a day on weekends. (McWilliams Declaration ¶ 25.) 42. According to Bermudez, on weekdays he receives a hot breakfast, a sack

lunch, and a hot dinner. (Bermudez Deposition at 26-29.) A typical breakfast consists of two tortillas, beans, scrambled eggs, salsa and cheese. (Id.) A typical lunch includes four slices of bread, two slices of cold cuts, two pieces of cheese, two cookies, and a small bag of chips. (Id. at 27-29.) A typical dinner consists of two pieces of bread, a fried chicken patty, rice, gravy, coleslaw, butter and a piece of cake. (Id.) On Saturdays, Sundays, and holidays he receives two slightly larger meals, a brunch and dinner. (Id. at 29-30.) 43. Validated STG members do not have commissary privileges, except for During the month of December, validated STG members may also

hygiene items.

purchase food items from the inmate store including, dried beans, tortillas, Christmas cookies, candy, and different kinds of pastries. (McWilliams Declaration ¶ 26.)

According to Bermudez, when he was incarcerated in Special Management Unit I ("SMUI"), a lower security facility, he regularly purchased chips, candy, pastries, sodas, peanut butter, bread, and sometimes meats from the inmate store. (Bermudez Deposition at 30-31.) 9

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44.

Bermudez admits that his height is approximately five feet six inches, and he

weighs approximately 160 pounds. (Id. at 16) 45. Bermudez admits that, aside from an earache he suffered some time ago and

his inguinal hernia, his current health is "pretty good." (Id. at 39-40.) He further asserts that he has never seen a mental health professional while confined to SMUII. (Id. at 39.) 46. Validated STG members are not eligible for work, vocational, recreation, or

educational programs, but can do in-cell programs. Educational programs are available to those inmates with special education needs. Declaration at 36.) 47. Validated STG members are not eligible for compassionate escorted leave. (McWilliams Declaration ¶ 27; Falco

(McWilliams Declaration ¶ 28.) 48. Bermudez spends the time in his watching his personal television and

listening to his radio. (Bermudez Deposition at 41-42.) 49. Inmates in general population generally receive recreation five (5) times a

week and have open visitation on weekends. Open visitation may be all day or half a day depending on the particular prison facility. They also have meals in the chow hall and commissary privileges. (McWilliams Declaration ¶ 29.) 50. Inmates in the general population are eligible for work, vocational,

recreation, and educational programs. (McWilliams Declaration ¶ 30.) 51. Inmates in the general population are also eligible to receive compassionate

escorted leave. (McWilliams Declaration ¶ 31.) 52. A validated STG member may be released from SMU II if he renounces his (Id; Gerrish

STG membership, successfully debriefs, and passes a polygraph test. Declaration ¶ 12.)

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53.

The purpose of renouncing STG membership (i.e., debriefing) is not for

officials to obtain incriminating information or evidence of crimes that will be used against the renouncing inmate. The primary objective is to learn enough about the inmate's membership and the STG to: (1) convince the ADC that the inmate has dropped out of the STG; (2) provide additional information regarding the STG's structure, activity, and membership that would adversely impact the STG and assist in the management of the STG population; (3) and provide sufficient information to determine if the inmate may require protection from other STG members or suspects. (Gerrish Declaration ¶ 13.) 54. None of the information obtained during debriefing is used against the

debriefer in criminal proceedings. (Id.) 55. The ADC affords all inmates, including validated STG members housed in

the SMU II, a classification review every 180 days in accordance DO 801.05. (Gerrish Declaration ¶ 14; Crabtree Declaration ¶¶ 11-14.) 56. Department Order 801 governs the ADC classification policy. The purpose

of this policy is to set forth the ADC's classification system and procedures for "initial classification and subsequent reclassification action addressing security and programming needs." (Crabtree Declaration ¶ 4.) 57. The Correctional Classification Profile ("CCP") consists of ten factors of

evaluation: (1) Public Risk Score (P), (2) Institutional Risk Score (I), (3) Medical and Health Care Needs Score (M), (4) Mental Health Care Needs Score (MH), (5) Education Needs Score (E), (6) Vocational Training Needs Score (V), (7) Work Skill Needs Score (W), (8) Alcohol/Drug Abuse Treatment Needs Score (A/D), (9) Sex Offense Treatment Needs Score (S), and (10) Proximity to Residence Needs Score (R). (Crabtree Declaration ¶ 5.)

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58.

Each CCP factor contains particular elements that the classification staff

should examine. A Public Risk Score ("P") lists eight elements that should be considered: (1) Severity of Current Offense, (2) Extent of Violence in Current Offense, (3) Weapon Use in Current Offense, (4) Escape History, (5) History of Violence, (6) Confinement History, (7) Estimated Length of Confinement, and (8) Detainer Status. Declaration ¶ 6.) 59. An Institutional Risk Score ("I") lists eight possible elements for (Crabtree

consideration: (1) Prior Institutional Adjustment, (2) Community Stability, (3) Inmate Adjustment During Initial Classification, (4) Probation/Parole Adjustment, (5) Mental Health Adjustment, (6) Current Age, (7) Security Threat Group ("STG") Affiliation, and (8) Substance Abuse History. (Crabtree Declaration ¶ 7.) 60. The Institutional Classification Committee ("ICC") examines an inmate's

records, considers input from the inmate, and renders a decision on whether to change or maintain the inmate's classification scores. (Crabtree Declaration ¶ 8.) 61. An inmate has the right to appeal the final classification decision by the

Central Classification Office to the Offender Services Bureau Administrator. The ICC holds classification update hearings any time the inmate has been convicted of a new offense (i.e., newly adjudicated charges or disciplinary violations). (Crabtree Declaration ¶ 9.) 62. Absent security concerns, every inmate is allowed to be present, make a

statement, and present information to the ICC at classification hearings with the exception of a Type 89 review. A Type 89 review is a quick paperless review of an inmate's record that does not affect his/hers P/I score. An inmate is not necessarily required to be present at a Type 89 review. (Crabtree Declaration ¶ 12.)

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63.

If there is a security concern the inmate's right to appear, make a statement,

and present information will be waived. An inmate may also waive appearance at the ICC classification hearing if no change is expected in the inmate's institutional placement. An inmate with a waived right to appear may still submit a written statement for consideration. (Crabtree Declaration ¶ 13.) 64. The ICC follows the same procedure for validated STG members. If the

inmate does not renounce his STG membership, his P and I scores remain unchanged. However, records pertaining to all other factors are evaluated and subject to change (Crabtree Declaration ¶ 10.) 65. STG validated inmates (with no CCP changes) who choose to renounce,

successfully debrief, and pass a polygraph test are re-classified and stepped down into placement in a Level 4 protective segregation yard with similar rights as inmates in any general population Level 4 yard. Validated STG members who refuse to renounce their STG membership maintain a P5/I5 score and are ineligible for score reductions. (Crabtree Declaration ¶ 11.) 66. On October 12, 2000, officials gave Bermudez notice of his suspected STG

membership and impending STG validation hearing, seven days prior to his actual validation hearing. The notice advised Bermudez of his right to appear at the hearing and right to request witnesses. (Gerrish Declaration ¶ 15.) 67. On October 20, 2000, the STG Hearing Committee validated Bermudez as a

member of the Surenos STG. (Gerrish Declaration ¶ 16.) The STG Hearing Committee relied on the following evidence of misconduct to validate Bermudez: (1) his statement made admitting membership in the Surenos STG, (2) a handkerchief containing Sureno's symbolism, (3) confidential documents indicating Bermudez's involvement with the Surenos STG, (4) his associations with other suspected STG members, and (5) his contacts 13

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with other Surenos STG members, including intercepted letters and recorded telephone conversations. (Gerrish Declaration ¶ 16.) At the hearing, Bermudez chose not to

renounce his STG membership. (Gerrish Declaration ¶ 16.) 68. Bermudez opted to appeal his validation. (Id. at ¶ 17) On November 17,

2000, based on Bermudez's appeal, the STG Validation Committee reduced Bermudez's points from 23 to 18. (Id.) However, because Bermudez presented no further evidence to reduce the amount of his remaining 18 points, the STG Validation Committee denied his appeal and considered him validated as a member of the STG Group "Surenos." (Id.) 69. The ADC first transferred Bermudez to SMU II in December of 2000.

(Gerrish Declaration ¶ 18.) Bermudez is scheduled for release from prison in late spring 2006. (Id.) 70. Bermudez had an opportunity to present a defense to the STG Hearing and

Validation Committee, and appeal their decision. (Gerrish Declaration ¶ 19.) 71. The ADC considers validated STG members an ongoing threat to prison

security. Under ADC policy, validated STG members released from ADC custody shall retain their STG status indefinitely. If a released inmate returns to the custody of the ADC, he shall retain the STG status held at the time of release. (Gerrish Declaration ¶ 20.) 72. Officials have periodically served Bermudez with classification referral

notices. These notices informed him of an upcoming ICC classification hearing. Each notice gave Bermudez an opportunity to appeal at the hearings, call relevant witnesses, remain silent, have the assistance of a willing employee, receive a finalized copy of the ICC's findings, and appeal classification errors or overrides to the Administrator for Offender Services Bureau. (Crabtree Declaration ¶ 15; Bermudez Deposition at 15-16.)

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73.

Bermudez has received periodic reviews, approximately every 180 days, at

classification hearings throughout his incarceration in the SMU II. (Crabtree Declaration ¶ 14; Bermudez Deposition at 15-16) 74. Since his validation the classification committee has made no changes in

Bermudez's P-5/I-5 scores and has recommended continued placement in SMU-II. (Crabtree Declaration ¶ 16.) 75. The records show that absent security concerns, Bermudez has been given

the opportunity to be present, make a statement, and present information to the ICC at all of his classification hearings. (Crabtree Declaration ¶ 17.) 76. Bermudez is eligible for release from the SMU II and a P/I score reduction

the moment he agrees to and successfully debriefs. (Gerrish Declaration ¶ 21.)

RESPECTFULLY SUBMITTED this 21st day of November, 2005. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original e-filed this 21st day of November, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Armando Bermudez, #130901 ASPC ­ Eyman-SMU II P.O. Box 3400 Florence, Arizona 85232 s/ Colleen Jordan Secretary to: Susanna C. Pineda IDS04-0243/RSK:G04-20520
#934845.1