Free Report - 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 Defendants1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kristofer M. Seneca, Plaintiff, v. State of Arizona, et al., Defendants.

No. CV03-1350 PHX SRB (ECV) AMENDED JOINT PROPOSED PRETRIAL ORDER

Pursuant to the Scheduling Order previously entered, the following is the Amended Joint Proposed Pretrial Order discussed at the Final Pretrial Telephonic Conference on August 29, 2005, at 11:30 a.m. before Judge Bolton. A. COUNSEL FOR THE PARTIES Kristofer M. Seneca #113423 (inmate pro per) ASPC-Eyman-Meadows Unit Post Office Box 3300, Florence, Arizona, 85326 Telephone: (520) 868-0201 ext. 5036

Plaintiff:

Schriro, Walker, Hofmann, and Linderman. Defendant Teply was dismissed from this matter by stipulation. (Dkt. # 100).
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Defendants: Susanna C. Pineda Assistant Attorney General 1275 West Washington Phoenix, Arizona, 85007-2997 Telephone: (602) 542-7684; fax (602) 542-7670. B. STATEMENT OF JURISDICTION

The Plaintiff's claims involve federal questions and the Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 1367 (supplemental jurisdiction, to wit: Art. II, § 12 of the Arizona Constitution and A.R.S. § 41-1493 et seq.), and 42 U.S.C. §§ 1983 and 2000cc-2(b). Jurisdiction is currently being disputed by Defendants on the basis of

mootness given recent changes to the policy under attack. C. NATURE OF ACTION 1. Plaintiff

This is a civil rights case wherein the Plaintiff seeks declaratory and injunctive relief against defendants for a violation of his free exercise of religious rights. Plaintiff contends that the defendants' action or inactions have violated his rights under both federal and state law, by: 1. Not approving the religious items he requested and/or hindering such approval by unclear policies and practices. (Complaint, Doc. No. 1, at 5; 6-8, 13-17) 2. Not allowing items to be donated or received as gifts, instead only allowing items ordered by the inmate from his inmate account. (Id. at 5:19; 6: 1-2) 3. Not allowing Plaintiff to possess more than seven (7) books, wherein Plaintiff's sincerely held religious belief dictates that he read and study more than this number. (Order, Doc. No. 60 at 3:5-11) (Book limit remains under the RLUIPA). 2
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4.

By restricting Plaintiff to ordering religious items only to those vendors

Defendants have selected. (Complaint at 6: 1-2) 2. Defendants

This is a State Prisoner action alleging that former ADC Policies DO 904 and DO 909 violated 42 U.S.C. § 2000cc et seq. (RLUIPA) by arbitrarily restricting the number of religious items in the inmate's possession to seven items, irrespective of the need for more. Defendants deny Plaintiff's allegations and further assert that the matter is moot as a result of the July 11, 2005 ADC policy change to these policies that no longer limits the inmate to seven religious items, but allows him to possess as many religious items that will fit into a designated property box. D. NON-JURY

Plaintiff seeks only declaratory and injunctive relief which removes the case from jury consideration. The matter is to be a trial to the bench. E. CONTENTIONS OF THE PARTIES 1. 1. Plaintiff

In order to prevail on the issue regarding the approval of religious items,

Plaintiff must prove the following: a) That the Defendants acted under the color of law, and b) That the Defendants' act, policy, regulation, or omission has imposed a substantial burden on the free exercise of Plaintiff's chosen religion. (See 42 U.S.C. § 2000cc-2(b); A.R.S. § 41-1493.01(D).) Plaintiff may show a substantial burden by demonstrating that the act, policy, regulation, or omission has prevented him from engaging in a sincerely held religious practice. See Cutter v. Wilkinson, 125 S.Ct. 2110, 2114 n. 13 (2005). 3
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2. In order to prevail on the issue regarding the limitation to the receipt of religious items from only those purchase by Plaintiff, the Plaintiff must prove the following: a) That the Defendants acted under color of law; and b) That the religious items are protected by the First Amendment; See Crofton v. Roe, 170 F.3d 957, 960 (9th Cir. 1999), or That the Defendants' act, policy, regulation, or omission has imposed a substantial burden on the free exercise of the Plaintiff's chosen religion. (See 42 U.S.C. § 2000cc2(b); A.R.S. § 41-1493.01(D).) Plaintiff may show a substantial burden by demonstrating that the act, policy, regulation, or omission has prevented him from engaging in a sincerely held religious practice. See Cutter v. Wilkinson, supra, 125 S.Ct. at 2114 n. 13. 3. In order to prevail on the issue regarding the limitation of all books to a total of seven (7), including religious books, Plaintiff must prove the following: a) That the Defendants acted under the color of law, and b) That the Defendants' act, policy, regulation, or omission has imposed a substantial burden on the free exercise of Plaintiff's chosen religion. (See 42 U.S.C. § 2000cc-2(b); A.R.S. § 41-1493.01(D).) Plaintiff may show a substantial burden by demonstrating that the act, policy, regulation, or omission has prevented him from engaging in a sincerely held religious practice. See Cutter, 125 S.Ct. at 2114 n. 13. 4. In order to prevail on the issue regarding the restrictions of ordering religious items only from vendors the Defendants have selected, Plaintiff must prove the following: Either: a) The defendants acted under color of law; and b) 4
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i) The practice does not have a secular purpose or ii) That it advances or inhibits religion or iii) It fosters an excessive government entanglement with religion. (See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).) OR a) The defendants acted under the color of law; b) That public money or property has been appropriated for or applied to the selection of such vendor to sell religious items. (See Art. II, § 12 of the Arizona Constitution) OR a) That defendants acted under the color of law, and b) That the defendants' act, policy, regulation, or omission has imposed a

substantial burden or the free exercise of Plaintiff's chosen religion. (See 42 U.S.C. § 2000cc-2(b); A.R.S. § 41-1493.01(D).)

Plaintiff may show a substantial burden by demonstrating that the act, policy, regulation, or omission has prevented him from engaging in a sincerely held religious practice. See Cutter, 125 S.Ct. at 2114 n. 13.

Plaintiff seeks declaratory and injunctive relief, and reimbursement of his fees and costs. Plaintiff specifically seeks an injunction requiring defendants (1) To allow him to receive and possess religious books in excess of seven (7) to be stored in one (1) of three currently authorized storage boxes measuring up to 17½" x 10¼" x 11 ½".

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(2)

To specifically provide in their policy what type of documentation is necessary in order to have a religious item approved, including contents of such documentation.

(3) (4)

Approve all of Plaintiff's religious items. Allow religious items to be donated from any legitimate vendor and members of the public (i.e. family and friends) may order the item so long as the legitimate vendor ships it directly to the inmate.

(5)

Allow Plaintiff to submit lists of vendors so that defendants can add them to an approved list, subject to defendants verifying the vendor as being a legitimate business/vendor. 2. Defendants

To prevail on his RLUIPA claim, Plaintiff must show that ADC's religious property policy constitutes a "substantial burden" on his religious exercise. See 42 U.S.C. § 2000cc-5. He must show that the policy is oppressive to a significantly great extent, "[t]hat is, a `substantial burden' on `religious exercise' must impose a significantly great restriction or onus upon such exercise." Warsoldier v. Woodford, 2005 WL 1792117 (9th Cir. 2005) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). In other words, to constitute a substantial burden on the Plaintiff's free exercise, the government policy must significantly constrain conduct that manifests a central tenet of the Plaintiff's religious beliefs; it must meaningfully curtail his ability to express adherence to his faith; or must deny him reasonable opportunities to engage in those activities that are fundamental to his religion. Murphy v. Missouri Dep't of Corr. 372 F.3d 979, 988 (8th Cir. 2004). The Ninth Circuit appears to hold that the plaintiff must prove that the policy forces him to violate his religion. See Warsoldier v. Woodford, 2005 WL 1792117 (9th Cir. 2005) (Correctional policy requirement that all inmates cut 6
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hair, irrespective of their religious belief, forced inmate to violate his religion that prohibited cutting of hair.) The facts will show that although the former ADC policy restrictions limited the number of religious items Plaintiff can possess to seven, this restriction did not imposed a significantly great restriction on Plaintiff's exercise of his religion. Assuming Plaintiff can meet his burden of showing that the policy restriction denied him the reasonable opportunity to engage in activity that is fundamental to his religion, those restrictions on his possession of religious items serve a compelling government interest, particularly the prison's "need to maintain order and safety", as well as cost involved with staffing requirements. See 42 U.S.C. § 2000cc-1(a); 42 U.S.C. § 2000cc2(b); Cutter v. Wilkinson, 125 S. Ct. 2113, 2122 (2005). Given these compelling interests, the policy is the least restrictive. Prison security and safety is clearly a compelling government interest. See Pell v. Procunier, 417 U.S. 817, 823 (1974). F. 1. STIPULATIONS AND UNCONTESTED FACTS At all times relevant to this case, Plaintiff is an Arizona Department of

Corrections inmate incarcerated at ASPC-Eyman Meadows Unit in Florence, Arizona. 2. Plaintiff has changed his religious preference to Mikkyo Nimpo (Shingon

Esoteric Buddism) and that preference is shown on his Arizona Department of Corrections records. 3. 4. Defendants Linderman and Walker are prison officials. The ADOC Policy in effect at the time Plaintiff brought his suit limited

inmates to possession of 7 religious items. 5. That Defendants have approved Plaintiff the use of seven (7) religious items.

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6.

The ADOC Policy in effect at the time Plaintiff brought his suit limits the

number of books an inmate may possess to seven (7), irrespective of subject matter. And DOC library were exempt from this policy. 7. 8. Defendant Schriro is the Director of the Arizona Department of Corrections. Defendant Hofmann is an assistant attorney general and was so at the time of

Plaintiff brought his suit. 9. Generally, inmates in the Arizona Department of Corrections are permitted

three boxes for storage of personal property measuring up to 17½" x 10¼" x 11 ½". (See e.g. DO 909.05.1.15.3--inmates placed in detention not permitted to possess property and DO 909.05.1.17--property limited in SMU.) 10. Inmate property is subject to periodic search, including but not limited to

manual searches, x-ray scanning, metal detections scans and scans conducted by canines trained to find drugs. 11. Inmates may exceed the seven book property restriction set forth in DO 909

if enrolled and actively engaged in an educational program or educational correspondence program. Once the program is completed, the exception is no longer applicable and the inmate is limited to seven books regardless of subject matter.

G.

CONTESTED ISSUES OF FACT AND LAW 1. Plaintiff

(A) Plaintiff's Contested Issues of Law Plaintiff disputes the applicability of the following cases or law; 1) Warsoldier v. Woodford, 2005 WL 1792117 (9th Cir. 2005). This case rest on a prior 9th Circuit case from 2004 that predates the Cutter v. Wilkinson, 125 S.Ct. 2110 (2005) Supreme Court decision. Warsoldier is contrary not only to 8
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Cutter, but the express legislative intent of 42 U.S.C. § 2000cc et seq. to give "substantial burden" no greater definition than that set by the U.S. Supreme Court. 2) Murphy v. Missouri Dep't of Corr., 372 F.3d 979 (8th Cir. 2004). This case predates the Cutter v. Wilkinson, 125 S.Ct. 2110 (2005). Murphy is contrary not only to Cutter, but the express legislative intent of 42 U.S.C. § 2000cc et seq. to give "substantial burden" no greater definition than that set by the U.S. Supreme Court. 3) Defendants raised no security or institutional order concerns prior to this date and the Court has stated that issues for trial do not concern them. The Court already found the limit was not the least restrictive means. (Doc # 82.) (B) Plaintiff's Contested Issues of Fact Plaintiff contends that defendants have admitted he is a sincere follower of the Mikkyo Ninpo (Shingon Esoteric Buddhist) faith by accepting his religious preference change and approving him seven (7) religious items. Plaintiff contends that it is his sincerely held religious belief to possess in excess of twenty (20) religious items and approximately twenty (20) religious books. That these items and books are necessary in order to progress on the path to enlightenment which is an integral part of his faith. That possessing books in excess of seven (7) possess no greater threat to defendants compelling interest as long as they are stored in one (1) of the three (3) storage boxes the defendants currently authorize. That defendants hinder the approval of religious items by not establishing a clearly written policy on what documentation is necessary in order to have an item approved.

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That the items Plaintiff requested are rooted in his religious faith and pose no threat to any security or safety concern. That the items have been approved other religions or are materially indistinguishable from other items defendants currently authorize. That not allowing the receipt of donations or gifts prevents Plaintiff, an indigent, from receiving religious items. In addition, limiting orders only from vendors selected by defendants interferes with Plaintiff's exclusive right to determine which item(s) best fulfills his sincerely held religious belief to practice with (i.e., co1or, material, etc. plays an important role). Furthermore, defendants profit from such action by marking up the price with a 15% user tax and/or 10% profit. Plaintiff further contends that defendants could meet the least restrictive provision

1) Allowing Plaintiff to submit a list of vendors; 2) Allow Plaintiff or his family or friends to order the items from those vendors; 3) Allow the vendor to donate the item directly to Plaintiff 4) Allow Plaintiff to store all books in excess of seven in one of the three storage boxes. 2. Defendants (a) Law 1. Must Plaintiff show that the ADC policy in question precluded him from

reasonably practicing his religion or caused him to violate a central tenet to his faith? (b) Facts 1. Plaintiff ability to reasonably practice his faith was not violated by the policy

restricting his possession of religious items to seven. The items plaintiff sought were mere

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tools that could assist him in practicing his faith but not necessary to the practice of his religion. 2. ADC has a compelling interest for limiting the number of items possessed by

an inmate, including security/safety interest, space issues, and staffing issues. Inmate cells are limited in space. ADC policy is written to account for the space issues, by balancing inmate religious needs with the need to have necessities such as clothing, bedding, hygiene items and other items inmate's are normally permitted to possess (legal materials, electrical appliances, books, photographs, food, mail, etc) in that limited space. It is also written to permit staff to complete frequent cell searches in a timely and orderly fashion, thereby minimizing the threat to security to the prison. 3. Defendants Hofmann, Walker and Linderman have no power to set or

modify ADC policy. That power, pursuant to Arizona Statute, lies solely with the Director of ADC. 4. Defendants Hofmann and Walker did not participate in the forming or

adoption of the religion policy (DO 904) or the property policy (DO 909) that Plaintiff attacks as unconstitutional. H. A. LIST OF WITNESSES Plaintiff's Witnesses (1) Expected to testify: a) Kristofer M. Seneca-Plaintiff This witness is expected to testify concerning the substantial burden placed on his religious practice by the defendants actions, policies, regulations, advice or omissions.

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b) Dora B. Schriro-Defendant/Witness This witness is expected to testify concerning her denial of Plaintiff's grievances, the policies and practices concerning religion and personal property. c) Michael Linderman-Defendant/witness This witness is expected to testify concerning his advises and suggestions concerning the implementation of religious policy, the way in which he approves religious items and practices, his discussions with attorneys on the implementation of religious policy, and his actions concerning both Plaintiff's grievances and the denial of Plaintiff's religious items. d) Sandra A. Walker-defendant/witness This witness is expected to testify concerning her actions in investigating and/or denying Plaintiff's grievances. e) Wanda F. Hofmann-Defendant/witness This witness is expected to testify concerning her review of relevant policies and memoranda concerning religious items and practices and the advice she gave or failed to give regarding them to Michael Linderman. Defendant's object to the below listed witnesses. They have not been disclosed and are not likely to have relevant evidence to Plaintiff's claim: f) Kevin M. Roy-Inmate/witness. This witness is expected to testify concerning his dealings with Michael Linderman and the problems experienced in trying to have religious items/practices approved; and knowledge of Plaintiff.

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Patrick L. Geier-Inmate/witness. This witness is expected to testify concerning his dealings with ADOC Chaplaincy and the type of antagonism shown by them towards nontraditional faith systems, and to his knowledge of Plaintiff in regards to this case. (2) May be called: a) Victor Ruboyianes-Librarian/Witness. This witness is expected to testify concerning the policy on storing religious books in the Inmate Library for check-out to inmates and as to why nearly twenty (20) books on Esoteric Buddhism that Plaintiff donated where not put on the shelf, as other religious books are, and instead discarding them. b) Joseph Mainhall, CO III- Counselor/ witness. This witness is expected to testify concerning his investigation of Plaintiff's grievances, his discussions with ADOC Chaplaincy regarding the Plaintiff's attempt to have items approved and his discussions with Plaintiff regarding these issues. c) Todd Dolce, CO III- Counselor/Witness. This witness is expected to testify concerning his investigation and actions regarding the Plaintiff's grievances. Coordinator at the relevant time. d) John I. Sabbagh-Chaplain/witness. This witness is expected to testify concerning his conversations with Linderman regarding Plaintiff and his responses to Plaintiff's I/M letters. He was the acting Grievance

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e) George Emmert-Chaplain/witness. This witness is expected to testify concerning his knowledge of former ADOC religious policies, his actions concerning Plaintiff's inmate letters to him or referred to him, and as to the process concerning Plaintiff's second request for religious items. f) Roland J. L'Heureux-Inmate/witness.

This witness is expected to testify concerning his dealings with ADOC chaplaincy, problems with trying to have religious items approved, antagonistic practices by ADOC against non traditional (non-Christians), and other associated issues. Experts: (Defendants do not object to this witness except on relevancy grounds). The following witnesses may be called in chief or as a rebuttal witness: Name: Robert C. Barr Qualifications: Mr. Barr is a Fire Protection Engineer for the City of

Phoenix's Fire Department's Fire Prevention Unit. This witness is expected to testify as to the combustibility of bound books in relation to loose-leaf paper, file, folders, envelopes and other materials that Defendant's currently authorize inmate's to store in their storage boxes. 2. Defendants' Witnesses: a. Fact witnesses who shall be called at trial.

Plaintiff Kristofer M. Seneca Defendant Michael Linderman will testify regarding Plaintiff's ability to

practice his religion in the prison setting. 14
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2

3.

Samuel Sublett will testify regarding the security and safety issues

considered in implementing ADC religion and property policies. (Objection-Relevance) 4. Defendant Wanda Hofmann will testify that she had no role in the

formulation of ADC religion policy.

I.

LIST OF EXHIBITS A. Plaintiff's Exhibits (Defendants' objections to Plaintiff's exhibits are indicated in bold.) 1. Inmate grievance #A16-162-003 and attachment2 2. Inmate grievance #A16-191-004 and attachments 3. Inmate grievance #A16-162-003 and attachments 4. Religious Preference and Privilege Request Form-11/08/03 5. Letter from Robert C. Barr-02/14/05 (Objection - Relevance.) 6. Religious Item Request Form- 12/01/03 7. Religious Item Request Form-03/16/04 8. I/M letters to Sr. Chaplain Sabbagh- 04/29/04 a) Herbs b) Tea Bowl c) Zafu d) Tea caddy with spoon e) Meditation Beads f) Zabuton g) Tea Whisk

This includes informal resolution, grievance, grievance appeals and all attachments. 15
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9. Relevance)

Inmate letter Response: Bennie Rollins- 11/18/03 (Objection -

10. I/M letter to Sr. Chaplain Sabbagh -02/19/04 11. Inmate letter response: John I. Sabbagh- 02/16/05 12. Department Order 904 (Religious Policy) 13. Director's Instruction #201- 11/01/02 (909-Attachment A.) 14. Eyman Institutional Order 909.01.1.4- 12/27/04 15. Memorandum by J.C. Keeney (CD Players Once Authorized) (Objection - Relevance) 16. Religious Preferences in ADOC with Number of Inmates recognized as each- 2005 (Objection - Relevance) 17. List of all Buddhism Books in Meadows Library- 2005

(Objection - Relevance) 18. Email from Linderman to Sabbagh- 10/29/03 (Objection -

failure to disclose) 19. Memorandum by Linderman ­ 4/01/02 20. Inmate Letter Response: Sabbagh ­ 02/13/04 21. Inmate Letter Response: Sabbagh ­ 12/03/03 22. Inmate Letter Response: Sabbagh ­ 01/10/04 23. Inmate letter response: Walker ­ 02/13/04 (#2) (Objection Relevance) 24. Inmate Letter to Walker ­ 11/14/03. (Objection ­ Relevance) 25. Inmate Letter Response: Relevance) 26. Inmate Letter to Walker ­ 10/02/03 (Objection - Relevance) 16
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Walker 11/17/03 (#1) (Objection -

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27. Letter from Lucis Trust Library (with Walker's handwritten response at bottom) ­ 08/22/03. (Objection - Relevance) 28. ASPC-Eyman ­ Religion Allowed Religious Items ­ 02/15/03 29. Approved Religious Items List ­ 2005 30. Religious Item Request Form ­ 01/08/04 31. Inmate Letter to Sabbagh ­ 12/11/03 32. Inmate Letter to Sabbagh ­ 03/16/04 33. Diagram of Master Combination Lock (Objection - Relevance) 34. Photocopy of a compact disc (Objection - Relevance) 35. Photocopy of 4 x 6 mirror (Objection - Relevance) 36. Book: Seekers' Glossary of Buddhism 37. Book: Action Meditation by Stephen K. Hayes 38. Book: How to Own the World by Stephen K. Hayes 39. Articles from http://www.shingon.org 40. Catalog: The Stash Tea Catalog (Objection - Relevance) 41. Catalog: Neko-Chan Trading Company (Objection - Relevance) 42. Catalog: Shasta Abbey Buddhist Supplies (Objection -

Relevance) 43. Catalog: Tibetan Spirit (Objection - Relevance) 44. Catalog: Samadhi Cushions ­ Samadhi Store (Objection -

Relevance) 45. Catalog: Dharma Crafts (Objection - Relevance) 46. Catalog: Tibetan Treasures (Objection - Relevance) 47. Art II, § 12 of the Arizona Constitution

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48.

Email

from

Andy

McFadden

(www.fadden.com/

and

www.cdrfag.org) on the material CD's are made of and how they shatter if snapped in two. (Objection - Relevance) 49. Policies, or letters regarding them, from all Department of

Corrections in the U.S. (if received in time for trial) (Objection Relevance) 50. 51. Inmate Letter to Mainhall ­ 08/03/04 (Objection - Relevance) Inmate Letter Response: Emmert 08/10/04 (Objection -

Relevance) 52. 53. Inmate Letter to Emmert ­ 08/13/04 (Objection - Relevance) Inmate Letter Response: Emmert ­ 08/16/04 (Objection -

Relevance) 54. Inmate Letter Response: Sabbagh ­ 04/12/04 55. Inmate Letter Response: Sabbagh ­ 05/06/04 56. Department Order 101.02.13 57. Inmate Grievance A16-086-004 and attachments (Objection Relevance, Failure to Disclose) 58. Department Order 704 (Compliance Policy) 59. Eyman Institutional Order 708, 3.0, 3.1.1 (metal det.) 60. Department Order 709.02 (Narcotic Detection Dogs) 61. Department Order 916.1.7 62(a). Inmate Property Release ­ 07/15/03 (Donate 1 ­ Seeking

Peace) (Objection - Relevance) 62(b). Inmate Property Received ­ 12/30/03 (Received 11 Buddhist Books) (Objection - Relevance, Failure to Disclose) 18
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63. Inmate Property Release ­ 12/31/03 (Donate 11 Buddhist Books) (Objection - Relevance, Failure to Disclose) 64. Inmate Property Release ­ 02/04/04 (Donate 4 Buddhist Books) (Objection - Relevance, Failure to Disclose) 65. Inmate Property Release ­ 05/18/04 (Donate 4 Buddhist Books) (Objection - Relevance, Failure to Disclose) 66. Complaint (Dkt. # 1). 67. Plaintiff's Motion for Summary Judgment (Dkt. #28) 68. Plaintiff's Supplemental Statement of Facts. (Dkt. #33). 69. Motion for Reconsideration. (Dkt #83). B. Defendant's Exhibits (Plaintiff's objections to Plaintiff's exhibits are indicated in bold.) 1. Seneca's Complaint. 2. DO 904 (ADC Religion Policy effective July 11, 2005.) 3. DO 909 (ADC Property Policy) 4. www.skhquest.com (web site relied upon by defendant). 5. Seneca's Motion for Summary Judgment and Statement of Facts and attachments. 6. Seneca's Supplemental Statement of Facts and attachments. 7. Seneca's Chaplaincy File. 8. Affidavit of Michael Linderman dated February 6, 2004. 9. Grievance A16-113-003 10. Grievance A16-162-003

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J.

MOTIONS IN LIMINE A. Plaintiff: None B. Defendants: None

K.

LIST OF ANY PENDING MOTIONS

1. Motion for Reconsideration (Pending). 2. Motion to Dismiss as Moot (Defendants anticipate filing this motion when proposed change to DO 909 (property policy) becomes effective. DO 904 has been changed to eliminate the numerical restriction on religious items.). 3. Motion to Reschedule Trial Date (Filed by Plaintiff). 4. Motion to Allow Inmate to Communicate with Inmate/Witness Geier (Anticipate Plaintiff filing motion to this effect.) L. PROBABLE LENGTH OF TRIAL

Plaintiff predicts a 2 day trial. Defendants anticipate 1 to 2 day bench trial. M. Trial Date

Trial is currently set for November 29-30, 2005. N. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

WILL BE FILED AND SERVED BY EACH PARTY ON OR BEFORE THE DATE SET FOR TRIAL O. MODIFICATION OF ORDER

The Court may, in order to prevent manifest injustice or for good cause shown, at the trial court he action or prior thereto upon application of counsel for either party, made in good faith, or upon the motion of the Court, modify the Final Pretrial Order upon such conditions as the Court may deem just and proper.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Having reviewed this Joint pleading, Plaintiff has verbally authorized Defendant's Counsel to submit this pleading electronically with the court bearing an electronic signature. 21
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APPROVED AS TO FORM AND CONTENT: s/ Kristofer M. Seneca Plaintiff, In Proper Person3 s/ Susanna C. Pineda Attorney for Defendant

THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED ON THIS ____ DAY OF ________, 2005.

____________________________ Susan Bolton United States District Judge

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Original e-filed this 30th day of August, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy delivered via Email the same date to:

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Honorable Susan R. Bolton [email protected] Copy mailed the same date to: Kristofer M. Seneca # 113423 ASPC - Eyman - Meadows P.O. Box 3300 Florence, AZ 85232-3300 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS03-0340/RSK:G03-03514 #921601