Free Statement - 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' STATEMENT OF FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Defendants1, by and through undersigned counsel, submit the following Statement of Facts in support of Defendants' Motion for Summary Judgment: 1. Plaintiff Sheldon Walker ("Walker"), ADC # 102833, is an inmate currently

in the custody of the Arizona Department of Corrections ("ADC"). (Walker's Redacted Arizona Inmate Management System ["AIMS"] Report, available for this Court's in camera inspection.) Walker is serving a twenty (20) year sentence following his felony conviction for murder in the second degree, as well as, a ten and one-half (10.5) year consecutive sentence for an aggravated assault, and a two (2) year consecutive sentence for Felony Flight from a Law Enforcement Vehicle. (Id.) The ADC currently houses Walker
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Dora Schriro, Conrad Luna and Barbara Shearer. Document 34 Filed 02/13/2006 Page 1 of 15

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in Arizona State Prison Complex ("ASPC")-Eyman, Special Management Unit ("SMU") II. (Id.) Walker is scheduled for release from prison in 2025. (Id.) 2. Walker had multiple placements before entering SMU II. (Id.) Walker was

placed in ASPC-Kaibab from November 24, 1997 to July 16, 1998, when he was transferred to SMU I. (Id.) He remained in SMU I until March 25, 1999, when he was transferred to ASPC Central Unit, Florence. Walker was placed into SMU II custody on June 8, 1999. (Id.) 3. On April 6, 2004, Walker filed an Original Complaint ("Complaint")

pursuant to 42 U.S.C. § 1983 ("§ 1983"). (Dkt. 1) 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 II); and, (3) retaliated against him for asserting his Fifth Amendment rights, using excessive force, in violation of the Eight Amendment (Count III). (Id. at 4-6A)2 Walker claims that he suffers from potential future physical, emotional, and/or psychological harm. (Id. at 6) Walker seeks prospective injunctive and declaratory relief. (Id. at 7.) 4. The ADC employs Todd Gerrish as the Supervisor of the STG Unit. (¶ 2,

Declaration of Todd Gerrish, attached hereto as Exhibit A.) 5. The ADC employs Carson McWilliams as the Deputy Warden of SMU II. (¶

1, Declaration of Carson McWilliams, attached hereto as Exhibit B.)

Walker's original Complaint alleges that he was retaliated against in violation of the Eighth Amendment by Defendants' use of excessive force, because they continued to indefinitely confine him. (Dkt. 1, p. 6) However, the Court's Screening Order clarifies that while Plaintiff designated his retaliation claim as one for excessive force, his true allegation is that his placement and continued confinement in SMU II are in retaliation for the exercise of his constitutional right against self-incrimination. (Dkt. 2, pp. 3-4) Document 34 Filed 02/13/2006 Page 2 of 15

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6.

The ADC employs Stacy Crabtree as the Classification Manager. (¶ 1,

Declaration of Stacy Crabtree, attached hereto as Exhibit C.) 7. Department Order ("DO") 806, effective November 1, 1999, governs STG

policy. (Exhibit A at ¶ 3.) The purpose of this policy is to minimize the threat posed by inmate gang or gang-like activity to the safe, secure, and efficient operations of the Arizona prison system. (Id.) DO 806 provides for the identification, validation, and reclassification of inmates determined to be members of an STG. (Id.) 8. 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. (Id. at ¶ 4.) These activities may include interaction with noninmates, such as family members, other relatives, former inmates, and other `street' associates." (Id.) 9. On September 11, 1998, the ADC informed all inmates that effective

October 11, 1998, the Mau Mau had been designated as a STG. (Id. at ¶ 5.) The notice went on to inform inmates that certain activity and identification with the Mau Mau shall subject them to Department Order sanctions and other appropriate disciplinary action and prosecution. (Id.) 10. When staff suspects an inmate of being an STG member, officials conduct an

investigation using a specified scoring system. (Id. at ¶ 6.) Points are given for such categories of indicators as gang-specific tattoos, possession of gang-related literature, selfadmissions, and voluntary association with other gang members, including group photographs. (Id.) When the inmate suspect qualifies for a validation hearing, by meeting

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validation criteria, the STG Hearing Committee prepares and reviews a validation packet. (Id.) 11. 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. (Id. at ¶ 7.) 12. The STG Hearing Committee examines the underlying facts for each

category in the STG Criteria. The STG criteria is documented on a 806-3P form and composed of 14 categories: (A) Self-Proclamation; (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. (Id. at ¶ 8.) 13. ADC policy requires that inmates receive notice of their validation hearing.

At the hearing, an inmate may present a defense. (Id. at ¶ 9.) 14. 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. (Id. at ¶ 10.) 15. 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.) 16. For the safety and protection of the ADC staff and other inmates, validated (Id. at ¶ 11.)

STG members are housed in a maximum-security facility--SMU II.

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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. (Exhibit B at ¶ 5.) It operates within established penological standards and ADC guidelines to ensure that inmates, staff, and policy are maintained. (Id.) 17. 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. (Id. at ¶ 6.) Officials divide the inmates in SMU II into groups. (Id.) The inmates are housed in separate cells in pods and each pod consists of 10 inmates. (Id.) 18. Individual cell lights remain on at all times, but are not maintained at

constant illumination. (Id. at ¶ 8.) During the day and early evening, the cell lights are turned on at normal illumination. (Id.) However, the lights are significantly dimmed between the hours of 10 p.m. and 4 a.m. (Sunday-Thursday) and midnight to 4 a.m. (Friday-Saturday). (Id.) The lighting fixtures produce 115 watts of power during the day. When dimmed at night, the lighting fixtures produce seven (7) watts of power, similar to a night light. (Id.) 19. There are several penological reasons for requiring at least dimmed lighting

at all times in the SMU II. (Id. at ¶ 9.) 20. Dimming the lights allows the inmate to sleep while simultaneously enabling

the staff to conduct regular bed-welfare checks during the night. (Id. at ¶ 10.) 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. (Id.) 21. The inmates housed in the SMU II represent some of the most dangerous and

violent inmates in ADC custody. (Id. at ¶ 11.) These inmates, if given the opportunity, may throw objects, including human excrement or weapons, at officers during welfare checks. (Id.)

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22.

Even with dimmed lighting, inmates in the SMU II are able to create

weapons and other contraband in their cells. (Id. at ¶ 12.) Allowing the inmates to operate during several hours of complete darkness would severely hamper the ability of the ADC to maintain a safe environment in the SMU II. (Id.) 23. The ADC determined that the current lighting policy rather than flashlights

created greater visibility with fewer disturbances to the inmates. (Id. at ¶ 13.) The ADC discontinued flashlight use for the SMU II nighttime welfare checks because: (1) the inmates complained of flashlights shining in their eyes while they slept; (2) flashlight welfare checks took longer to complete; (3) flashlights reduced security because officers could not look down the cellblock; and, (4) flashlight batteries were unreliable and replacements were not always readily available. (Id.) 24. There are two correctional officers per pod (ten inmates) on day shift to

handle all aspects of daily prison life. (Id. at ¶ 14.) One officer is stationed in the control room and controls all the doors in the pod. (Id.) 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. (Id.) 25. Inmates in SMU II can talk to staff several times during the day. (Id. at ¶ 15;

Deposition of Walker at p. 78, lines 5-18, attached hereto as Exhibit D.) Counselors are available to talk to inmates five times a week and answer questions face to face. (Exhibit B at ¶ 15; Exhibit D at pp. 78-79.) 26. SMU II inmates have access to medical, dental, and mental health services

and need only submit the paperwork to request these services. (Exhibit B at ¶ 16; Exhibit D, at pp. 66-69.) 27. Walker's medical complaints consist of: (1) migraines which began in April

of 1998 (Medical File of Walker at Bates label 0046, attached hereto as Exhibit E; Exhibit

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D at p. 60, lines 4-6); (2) a back injury caused by popping his back (Exhibit D at p. 50, lines 16-19); and, (3) a knee injury caused by glass in his knee during a fight as a juvenile, and wear and tear caused from playing basketball (Id. at pp. 66-67.) Walker admits receiving medical treatment for these injuries. (Id.) 28. lines 18-21.) 29. 68-69.) 30. (Id. at p. 69.) 31. Inmates in the SMU II have access to a library that contains legal materials. Walker has never requested mental health treatment while housed in SMU II. Walker has received dental treatment while housed in SMU II. (Id. at pp. Walker is five feet, seven inches tall and weighs 175 pounds. (Id. at p. 64,

Inmates may check out available legal materials several times a week. (Exhibit B at ¶ 17) Inmates in SMU II can obtain reading and other materials through the mail including magazines, books, and music tapes. (Id.; Exhibit D at pp. 40-45, 85-87.) 32. SMU II inmates can send and receive correspondence. (Exhibit B at ¶ 18;

Exhibit D at pp.75-76.) Walker acknowledges that he writes to his children, wife and mother approximately two or three times per week. (Exhibit D at ¶ 75, lines 14-25.) 33. Inmates in SMU II may have certain property in their cells including a

walkman radio-cassette player and a 13-inch television. (Exhibit B at ¶ 19; Exhibit D at pp. 81, 84.) Walker watches television, including sports, and is able to get a variety of stations. (Id. at pp. 82-84.) 34. Inmates in the SMU II are not permitted to pass notes or share legal

documents with other inmates. (Exhibit B at ¶ 20.) 35. Validated STG members can communicate with the other inmates in their

pod from cell to cell, but not face to face. (Id. at ¶ 21.)

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36.

Validated STG members wear either a jumpsuit or sweats purchased from

the inmate store. (Id. at ¶ 22; Exhibit D at p 56, lines 3-16.) Each inmate's sheets and clothes are laundered once-a-week. (Id.) 37. Validated STG members are allowed one non-contact visit a week for a

maximum of two hours. (Exhibit B at ¶ 23.) The inmate may have up to four visitors present at one time. (Id.) During a visit, an inmate sits behind glass and may not have any physical contact with his visitors. (Id.) 38. Walker receives regular visits at SMU II from his wife, son, daughter or

mother. (Exhibit D at pp. 41, 70, 73-75.) 39. Validated STG members receive one five-minute phone call per week.

(Exhibit B at ¶ 24; Exhibit D at p. 74, lines 14-21.) 40. Beginning December 29, 2005, SMU II inmates receive two hours of

outdoor exercise, three days a week in an enclosed outdoor exercise area. (Exhibit B at ¶ 25) Prior to December 29, 2005, and pertinent to Walker's lawsuit, SMU II inmates received one hour of outdoor exercise three days a week. (Id.) ADC policy also allows inmates the freedom to exercise in their cells. (Id.) 41. The outdoor exercise area has a cement floor, cement walls, and a steel mesh

top, which allows fresh air and sunlight into the area. (Exhibit B at ¶ 26.) No exercise equipment is stored in the enclosure, but SMU II inmates may request the use of a handball during their outdoor exercise. (Id.) Ten inmates share one outdoor exercise area. (Id.) However, only one inmate is allowed into the outdoor exercise area at a time for security reasons. (Id.) Therefore, the inmates must use the recreation area in shifts. (Id.) 42. Walker uses the outdoor exercise area on a regular basis, however, he

exercises only once or twice a week and the other times he walks. (Exhibit D at p. 52, lines 12-19.)

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43.

Validated STG members receive three showers a week, which correlates

with the three exercise days they receive. (Id. at ¶ 27.) There are two showers for each pod, so the inmates must shower in shifts. (Id.) Inmates have a sink and water in their cell so they can wash on non-exercise days, and they have a toilet and bed. (Id.) 44. Walker uses his sink in his cell several times a day to wash before his prayer.

(Exhibit D at p. 38 and p. 55, lines 11-22.) 45. Validated STG members receive a 2800 calorie a day diet which is consistent

with a less-active lifestyle. (Exhibit B at ¶ 28.) Inmates are given three meals a day from Monday to Friday and two larger meals (i.e. a brunch and dinner) on Saturdays and Sundays. (Id.) 46. Walker is on the ovo-lacto for religious reasons. (Exhibit D at p.45, lines 19-

24.) A typical breakfast consists of French toast, potatoes, oatmeal, an apple and milk. (Id. at p. 44, lines 13-17.) A typical lunch includes four slices of bread, four slices of cheese, peanut butter, carrots, potato chips and two cookies. (Id. at p. 45, lines 4-8.) A typical dinner may include split pea soup, potatoes, green beans, two slices of bread, and a piece of cake. (Id. at p. 45, lines 14-16.) 47. Validated STG members do not have commissary privileges, except for

hygiene items. (Exhibit B at ¶ 29.) However, during the month of December, validated STG members may also purchase food items from the inmate store to include dried beans, tortillas, Christmas cookies, and candy. (Id.) 48. Walker regularly purchases soap, shampoo, paper, pens, envelopes, batteries

from the inmate store. (Exhibit D at pp. 91-92.) During the month of December Walker has purchased food items from the inmate store, which he was allowed to keep until March of the following year. (Id. at pp. 92-93.)

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49.

Validated STG members are not eligible for work, vocational, recreation, or

educational programs, but they can participate in programs available in their cells. (Id. at ¶ 30.) 50. Walker spends the time in his cell practicing Islam, reading religious

materials, studying multiple languages, and studying history. (Id. at pp. 39-41, 85-88.) He frequently orders books and then donates them to the library or gives them to family members when he is finished reading them. (Id.) 51. Prior to October 25, 2005, DO 801 governed the classification policy. (¶ 4,

Declaration of Stacy Crabtree, attached hereto as Exhibit C.) 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." (Id.) 52. 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). (Id. at ¶ 5.) 53. 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. (Id. at ¶ 6.) 54. An Institutional Risk Score ("I") lists eight possible elements for

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. (Id. at ¶ 7.)

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55.

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. (Id. at ¶ 8.) 56. An inmate has the right to appeal the final classification decision by the

Central Classification Office to the Offender Services Bureau Administrator. (Id. at ¶ 9.) 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). (Id.) 57. The ICC follows the same procedure for validated STG members. (Id. at ¶

10.) If the inmate does not renounce his STG membership, his P and I scores remain unchanged. (Id.) However, records pertaining to all other factors are evaluated and subject to change (Id.) 58. 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. (Id. at ¶ 11.) Validated STG members who refuse to renounce their STG membership maintain a P5/I5 score and are ineligible for score reductions. (Id.) 59. A validated STG member is released from SMU II if he renounces his STG

membership, successfully debriefs, and passes a polygraph test. (Exhibit A at ¶ 12; Exhibit B at ¶ 7.) 60. The purpose of renouncing STG membership (i.e., debriefing) is not to

obtain incriminating criminal information or evidence against the inmate. (Exhibit A at ¶ 13.) 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, thereby

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ensuring the safe and secure operation of the ADC; (3) and provide sufficient information to determine if the inmate may require protection from other STG members or suspects. (Id.) 61. 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. (Exhibit A at ¶ 14; Exhibit D, pp. 24-25, 29-30.) In reviewing the inmate's classification, the

institutional classification staff rates the inmate on each one of the ten factors listed in ADC DO 801.01, 1.1 based on an assessment of the elements listed in section 801.01, 1.2 through 1.11. (Id. at ¶ 12.) Each factor is scored from one to five and listed on a
Reclassification Score Sheet ("RCSS").

(Id.)

The classification staff also uses the

Correctional Classification Profile (CCP) to determine the most appropriate institutional assignment for each inmate reclassified. (Id.) Thereafter, the ICC and Warden or Deputy Warden review the RCSS and concur or modify the recommended scores, make any necessary corrections, and forward it to the Central Office. (Id.) 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. (Id. at ¶ 13.) A Type 89 review is a quick paperless review of an inmate's record that does not affect his/her P/I score. (Id.) An inmate is not necessarily required to be present at a Type 89 review. (Id.) 63. If there is a security concern the inmate's right to appear, make a statement, An inmate may also waive

and present information will be waived. (Id. at ¶ 14.)

appearance at the ICC classification hearing if no change is expected in the inmate's institutional placement. (Id.) An inmate with a waived right to appear may still submit a written statement for consideration. (Id.) 64. Validated STG members are considered an ongoing threat to prison security.

(Exhibit A at ¶ 20.) Under ADC policy, validated STG members released from ADC

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custody shall retain their STG status indefinitely. (Id.) If a released inmate returns to the custody of the ADC, he shall retain the STG status held at the time of release. (Id.) 65. On March 6, 1999, prison officials gave Walker notice of his suspected STG

membership and impending STG validation hearing, four days prior to his actual validation hearing. (Exhibit A at ¶ 15.) The notice advised Walker of his right to appear at the hearing and right to request witnesses. (Id.; Exhibit D at pp. 15-16.) 66. On March 10, 1999, the STG Hearing Committee validated Walker as a

member of the Mau Mau STG. (Exhibit A at ¶ 16.) The STG Hearing Committee relied on the following evidence recovered from Walker's cell to validate him: (1) an address book located in another suspected Mau Mau member's cell, containing Walker's name; (2) an address book located in Walker's cell containing names of suspected Mau Mau members; (3) Mau Mau Bi-Laws found in Walker's cell; (4) letters written by Walker located in another suspected Mau Mau member's cell discussing Mau Mau business matters; and, (5) a Mau Mau membership list located in Walker's cell. (Id.; Exhibit D, p. 16, lines 9-24.) 67. Walker appealed his validation on May 7, 1999, and the STG Validation

Committee denied Walker's appeal. (Exhibit A at ¶ 17.) 68. 69. The ADC transferred Walker to SMU II on June 8, 1999. (Id. at ¶ 18.) Walker had an opportunity to present a defense to the STG Hearing and

Validation Committee, and appeal their decision. (Id. at ¶ 19.) 70. Prison officials have periodically served Walker with classification referral

notices. (Exhibit C at ¶ 16.) These notices informed him of ICC classification hearings. (Id.) Each notice gave Walker an opportunity to appear at the hearings and call relevant witnesses, remain silent, receive a finalized copy of the ICC's findings, and appeal classification errors or overrides to the Administrator for Offender Services Bureau. (Id.)

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71.

Walker received periodic reviews, approximately every 180 days, at

classification hearings, while incarcerated in the SMU II. (Id. at ¶ 15.) However, Walker does not consider his reviews "meaningful" because he cannot provide any evidence during the review that would change his status and allow for his release from SMU II, other than renouncing. (Exhibit D at pp. 42-43.) 72. Since his validation, the classification committee has made no changes in

Walker's P-5/I-5 scores and has recommended continued placement in SMU-II. (Exhibit C at ¶ 17.) 73. The records show that absent security concerns, Walker was given the

opportunity to be present, make a statement, and present information to the ICC at all of his classification hearings. (Id. at ¶ 18.) 74. Walker is eligible for release from the SMU II and a P/I score reduction if he

renounces his gang membership and successfully debriefs. (Exhibit A at ¶ 21.) 75. Walker acknowledges that he is able to present evidence and make a

statement at his review hearings. (Exhibit D at p. 43, lines 13-21.) He acknowledges that the ability to renounce is available to him at all times. (Id.) 76. Walker has chosen not to debrief. (Id. at pp. 30-31, 43-44.) He claims that he

is not a gang member and therefore has no information to supply to prison officials. (Id. at 31, lines 19-23.) RESPECTFULLY SUBMITTED this 13th day of February, 2006. TERRY GODDARD Attorney General

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

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1 2 3 4 5 6 Copy mailed the same date to: 7 8 9 10 s/Catherine M. Bohland 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Catherine M. Bohland IDS04-0455/RSK:G #946527 Sheldon Walker, #102833 ASPC-Eyman-SMUII Post Office Box 3400 Florence AZ 85232 Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Original e-filed this 13th day of February, 2006, with:

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