Free Objection - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General State Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sheldon Walker, Plaintiff, v. Dora Schriro, et al., Defendants.

No: CV04-0691-PHX-MHM (LOA) DEFENDANTS' OBJECTIONS TO PLAINTIFF'S SEPARATE STATEMENT OF FACTS (DKT. 36)

Defendants1, through undersigned counsel, hereby submit their response and objections to Plaintiff's Statement of Facts in Support of his Motion for Summary Judgment. (Dkt. 36) I. DEFENDANTS' RESPONSE AND OBJECTION TO PLAINTIFF'S STATEMENT OF FACTS Response to Plaintiff's Statement of Fact ("PSF") ¶ 1: Plaintiff's statement is correct to the extent that he is an inmate in the custody of the Arizona Department of Corrections ("ADC"), and that he is serving consecutive sentences for second degree murder (20 years), aggravated assault (10.5 years), and felony flight (2 years).
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Dora Schriro, Conrad Luna and Barbara Shearer. Document 39 Filed 03/13/2006 Page 1 of 8

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Response to PSF ¶ 2: Plaintiff's statement is correct to the extent that he is housed in the Special Management Unit ("SMU") II. However, Plaintiff's statement that SMU II is "one of the most restrictive prison environments in the U.S." is not supported by the record and as such is conclusory, assumes facts not in evidence, is hearsay, and therefore not admissible.2 See Rule 56(e) Fed. R. Civ. P.; Rules 401-401, 602, 801-802, Fed. R. Evid. Response to PSF ¶ 3: Plaintiff's statement is correct to the extent that he was transferred to the SMU II on June 8, 1999 and has remained there to the present date. (Dkt. 34 at ¶¶ 66, 68) However, Plaintiff's statement that he "has no foreseeable possibility of leaving SMU II or ever being in a lesser restrictive environment," is not supported by the record and as such is conclusory, assumes facts not in evidence, is hearsay, and therefore not admissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-401, 602, 801-802, Fed. R. Evid. However, March 15, 2006, ADC revisions to Departmental Order ("DO") 806

takes effect, which will afford STG members an optional "step-down" program. Specifically, DO 806.08 addresses the "step-down" provisions and requirements for release from SMU II housing. See DO 806.08, attached hereto as Attachment 1. Response to PSF ¶ 4: Plaintiff's statement is correct to the extent that he was validated as a Mau Mau member on March 10, 1999. However, Plaintiff's statement that he was "in general population with a P/I score of 4/3," is irrelevant, self-serving hearsay, improper character evidence, conclusory, and not supported by the record and therefore not admissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 608, 801-802, Fed. R. Evid. Further, as set forth in his Motion for Summary Judgment, Plaintiff acknowledges that he does not dispute his initial validation as a Mau Mau member or his resulting placement in SMU II. (Dkt. 35, p. 4) Because Plaintiff concedes he is not pursuing a claim relating to his initial validation and initial placement in SMU II, the balance of
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Plaintiff fails to attach exhibits supporting his Statement of Facts, and because each statement is unsupported by the record, the statements are inadmissible. See Rule 56(e), Fed. R. Civ. P.; Rule 602, Fed. R. Evid. Document 39 Filed 03/13/2006 Page 2 of 8

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Plaintiff's statements referencing events taking place prior to his placement in SMU II on June 8, 1999, are not relevant to his due process claim and are therefore inadmissible (i.e. P/I scores, previous job placements, disciplinary actions, Mau Mau membership, misconduct, rule violations, basis for validation, etc...) See Rule 401-402, Fed. R. Evid. Response to PSF ¶ 5: Plaintiff's statement that he "had a job prior to his validation and was disciplinary free for over a year" is irrelevant, self-serving hearsay, improper character evidence, conclusory, not supported by the record and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 608, 801-802, Fed. R. Evid., see also discussion at ¶ 4 supra. Response to PSF ¶ 6: Plaintiff's statement that he "never received any disciplinary sanctions related to any type of gang activity," is irrelevant, self-serving hearsay, improper character evidence, conclusory, not supported by the record and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 608, 801-802, Fed. R. Evid., see also discussion at ¶ 4 supra. Response to PSF ¶ 7: Plaintiff's statement that he "is not a member of the STG Mau Mau or any other STG," is irrelevant, self-serving hearsay, improper character evidence, conclusory, not supported by the record, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 608, 801-802, Fed. R. Evid., see also discussion at ¶ 4 supra. Response to PSF ¶ 8: Plaintiff's statement that he "was never accused of any acts of misconduct, rule violations, nor being a disciplinary problem or causing disciplinary problems, at his validation," and that his validation "was based on items that showed association with other prisoners who were not validated STG members," are irrelevant, self-serving hearsay, improper character evidence, conclusory, not supported by the record, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 608, 801802, Fed. R. Evid., see also discussion at ¶ 4 supra. Further, his statement that his validation "was based on items that showed association with other prisoners who were not

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validated STG members," is irrelevant and also not admissible. See Rule 401-402, Fed. R. Evid. Response to PSF ¶ 9: Plaintiff's statement is correct to the extent that he was placed in SMU II on June 8, 1999 and has remained there to the present date. However, while Plaintiff's statement that his P/I score was raised after his validation to a 5/5 may be true, it is irrelevant to his remaining claims, not supported by the record, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 401-402, Fed. R. Evid. Response to PSF ¶ 10: Plaintiff's statement is correct to the extent that he filed his § 1983 claims on April 6, 2004, alleging a due process violation, an Eighth Amendment violation prohibiting cruel and unusual punishment, and a retaliation claim. Response to PSF ¶ 11: Plaintiff's statement is correct to the extent that he seeks solely prospective injunctive and declaratory relief. Response to PSF ¶ 12: Plaintiff's statement is correct to the extent that he is a "layman in the law," however, the statement is irrelevant and therefore inadmissible. See Rule 401-402, Fed. R. Evid. Response to PSF ¶ 13: Plaintiff's statement is correct to the extent that he will remain in SMU II unless he decides to debrief prison officials.3 However, Defendants object to Plaintiff's statement that one option for release from SMU II is when his sentence expires in April of 2025, "if he doesn't die first." Plaintiff's statement is argumentative, hearsay, conclusory, not supported by the record, assumes facts not in evidence, and is therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 801-802, Fed. R. Evid; see discussion at ¶ 3 supra.

Effective March 15, 2006, ADC will implement a new DO 806, affording STG members the ability to engage in the step-down program. See Attachment 1, DO 806.08. If an inmate successfully completes the step-down process, the inmate may be eligible for transfer to an appropriate close custody housing unit in general population. See Attachment 1, DO 806.09 at ¶ 1.4.1. Document 39 Filed 03/13/2006 Page 4 of 8

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Response to PSF ¶ 14: Plaintiff's entire statement is unsupported by the record, is hearsay, conclusory, assumes facts not in evidence, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rule 801-802, Fed. R. Evid. Response to PSF ¶ 15: Plaintiff's statement that Defendants have failed to provide him with "meaningful" periodic 180 day reviews is unsupported by the record, is hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. Response to PSF ¶ 16: Plaintiff's statement is argumentative. Further, the

statement is unsupported by the record and therefore contains hearsay, conclusions, speculation and is therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid.; see also discussion at ¶ 3, concerning the "step-down" program, effective March 15, 2006. Response to PSF ¶ 17: Plaintiff's statement is unsupported by the record, is hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. Response to PSF ¶ 18: Plaintiff's statement is not supported by the record, is hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. Plaintiff states that: he is seen by the Institutional Classification Committee ("ICC") once a year; his statement is not forwarded to central classification, he is denied the right to be heard by the Director every six months; and; he is denied his right to appeal. Before October 25, 2005, Plaintiff was reviewed every 180 days. One review was conducted in person before the ICC and the second review for inmates who had no change in their status, was conducted by paper. See ADC
Classification Operating Manual, p. 56, lines 37-46, attached hereto as Attachment 2.4 Plaintiff is not denied the right to make a statement. See Walker Deposition, p. 26, attached
Effective October 25, 2005, the ADC implemented a new DO 801. See DO 801, effective October 25, 2005, attached hereto as Attachment 3. The new DO 801 affords inmates in maximum custody a review 60 and 180 days after their initial placement into maximum custody and a yearly review thereafter. See Attachment 3, 801.06 at ¶ 1.3. Document 39 Filed 03/13/2006 Page 5 of 8
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hereto as Attachment 4. In addition, ADC DO 801 does not authorize the Director to hear

from inmates during the 180 day review. See Attachment 3, 801.05 at ¶ 1.3 et seq. Finally Plaintiff may appeal the final decision made by Central Classification Office. Attachment 3, 801.08 at ¶ 1.1.1. Response to PSF ¶ 19: Plaintiff's statements are not supported by the record, are hearsay, conclusory and speculative and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. (1) See discussion supra at ¶¶ 22, 23. (2) See discussion supra at ¶ 21.5 (3) See discussion supra at ¶ 21. (4) See discussion supra at ¶ 24. The outdoor exercise area is 23 feet and four inches long by 11 feet wide, and 18 feet high. (5) Plaintiff receives a 2800 calorie a day diet. See Dkt. 34 at ¶¶ 45, 46. (6) Plaintiff is allowed to purchase food items during the month of December, from the inmate store to include dried beans, tortillas, Christmas cookies, and candy See Dkt. 34 at ¶ 47. (7) See discussion supra at ¶ 24. (8) ADC STG policy does allow validated gang members to participate in limited educational and in-cell programs (i.e. Kentucky GED courses and limited correspondence courses.) (9) Plaintiff's statement is correct to the extent that property items in SMU II are more limited than the general population. (10) Plaintiff's statement is correct to the extent that he is allotted a five minute See

phone call per week. See Dkt. 34 at ¶ 39. (11) Plaintiff has limited contact with fellow inmates, prison staff and counselors.

See Dkt. 34 at ¶¶ 25, 32, 35.

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Plaintiff incorrectly states that he is out of his cell for 162 hours each week. Document 39 Filed 03/13/2006 Page 6 of 8

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Response to PSF ¶ 20: Plaintiff's statement is not supported by the record, is hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. Response to PSF ¶ 21: Plaintiff's statements are not supported by the record, are hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. Defendants agree with Plaintiff's

statement to the extent that he is afforded two-hours of outdoor exercise, three times a week. See Dkt. 34 at ¶ 40. Response to PSF ¶ 22: Plaintiff's statement is not supported by the record, is hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid. Defendants agree with Plaintiff's

statement to the extent that his cell is illuminated between 11:00 p.m. and 4:30 a.m. with a 7 watt bulb. See Dkt. 34 at ¶ 18. Response to PSF ¶ 23: Plaintiff's statements are not supported by the record, are hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid.; see discussion supra at ¶ 22. Response to PSF ¶ 24: Plaintiff's statement is correct to the extent that he is denied contact visits and has limited phone privileges. However, Plaintiff's statements concerning "invasive strip searches, nearly total social isolation, lack of intellectual stiumulation and a myriad of other minor deprivations," are not supported by the record, are hearsay, conclusory, speculative, and therefore inadmissible. See Rule 56(e) Fed. R. Civ. P.; Rules 401-402, 602, 801-802, Fed. R. Evid.

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RESPECTFULLY SUBMITTED this 13th day of March, 2006. TERRY GODDARD Attorney General

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

Original e-filed this 13th day Of March, 2006, 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: Sheldon Walker, #102833 ASPC-Eyman-SMUII Post Office Box 3400 Florence AZ 85232 s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS04-0455/RSK:G #950211

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