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 Earl Felton Crago, Jr., No. CV 03-0916 PHX EHC (JRI) Plaintiff, v. Dora B. Schriro, et al., Defendants. DEFENDANTS' STATEMENT OF FACTS IN SUPPORT OF THEIR RESPONSE TO PLAINTIFF'S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT AND CROSSMOTION FOR SUMMARY JUDGMENT

Defendants,1 by and through undersigned counsel, submit the following Statement of Facts in support of their Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment: 1. Plaintiff Earl Felton Crago, Jr. ("Plaintiff"), ADC # 115357, is an inmate in the custody of the Arizona Department of Corrections ("ADC"). [Plaintiff's Arizona Inmate Management System ("AIMS") Report is available for the Court's in camera review.] Plaintiff is currently housed in Arizona State Prison Complex ("ASPC") ­ Eyman, SMUI. [Id.]

Herb Padilla, Lawrence Woods, Douglas Ford, Timothy Wilson and Catherine Gutierrez. Named-Defendant Marshall Blaine was apparently not served in this matter.
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2.

On October 23, 2000, at approximately 12:55 p.m., Plaintiff was escorted by Defendant Gutierrez to the disciplinary office located in Arizona State Prison Complex ­ Florence ("ASPC-F") Cell Block Six ("CB-6") for a hearing with Captain Morris. [Affidavit of Catherine Gutierrez at ¶ 5 (attached hereto as Exhibit A)]

3.

During this hearing, Plaintiff slipped out of one of his handcuffs and attacked Captain Morris, punching him repeatedly in the face and breaking his nose. [Id. at ¶ 6; Affidavit of Herb Padilla at ¶ 5a (attached hereto as Exhibit B)]

4.

Plaintiff also gained control of Captain Morris's pepper spray. [Padilla Aff. at ¶ 5b; Gutierrez Aff. at ¶ 9]

5.

Defendant Gutierrez immediately requested assistance and attempted to stop Plaintiff's assault on Captain Morris. [Gutierrez Aff. at ¶ 7; Padilla Aff. at ¶ 5c]

6.

While trying to stop Plaintiff's assault, Defendant Gutierrez hit Plaintiff on the head with her radio. [Id., Attachment A; Padilla Aff. at ¶ 5c]

7.

Plaintiff then struck Defendant Gutierrez, throwing her out of the office and into the hallway. [Id. at ¶ 8; Padilla Aff. at ¶ 5c]

8.

When Defendant Gutierrez attempted to re-enter the office, Plaintiff sprayed her in the face with the pepper spray. [Gutierrez Aff. at ¶ 9]

9.

Defendants Ford, Wilson and Woods all responded to Defendant Gutierrez's request for assistance. [Affidavit of Douglas Ford at ¶ 5 (attached hereto as Exhibit C); Affidavit of Timothy Wilson at ¶ ¶ 5-7 (attached hereto as Exhibit D); Affidavit of Lawrence Woods at ¶ 5 (attached hereto as Exhibit E]

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10.

As responding officers entered the disciplinary office, Plaintiff sprayed them with pepper spray which filled the room. [Ford Aff. at ¶ 6; Wilson Aff. at ¶ 7]

11.

One of the responding officers sprayed Plaintiff with pepper spray to assist in restraining Plaintiff. [Padilla Aff. at ¶ 5d]

12.

Defendant Ford grabbed Plaintiff's arm and Defendant Wilson helped him pull Plaintiff into the hallway and take him down to the floor on his stomach. [Id. at ¶ 5d.; Ford Aff. at ¶ 7; Wilson Aff. at ¶ 8]

13.

Plaintiff resisted by kicking and Defendant Ford placed his knee on Plaintiff's ankle. [Ford Aff. at ¶ 9; Padilla Aff. at ¶ 5d]

14.

Defendant Woods reapplied the handcuffs to Plaintiff while other responding officers applied leg restraints. [Woods Aff. at ¶ 7; Ford Aff. at ¶ 9; Wilson Aff. at ¶ 8; Padilla Aff. at ¶ 5d]

15.

Once Plaintiff was restrained, he was taken to the medical unit on a gurney by some of the officers involved. [Ford Aff. at ¶ 10; Padilla Aff. at ¶ 5e; Woods Aff. at ¶ 9; Affidavit of Teresa Zurbrigg-Walton at ¶ 3 (attached hereto as Exhibit F)]

16.

Defendants Woods and Wilson did not examine Plaintiff for injuries following the incident and they are not licensed health care providers. [Woods Aff. at ¶ 8; Wilson Aff. at ¶ 10]

17.

The officers involved also went to the medical unit for evaluation and treatment. [Zurbrigg-Walton Aff. at ¶ 4] Defendant Wilson suffered a scratch on his right forearm and he experienced difficulty breathing due to the pepper spray. [Wilson Aff. at ¶ 9]

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18.

Defendant Wilson was released from medical and relieved of duty. [Id. at ¶ 11]

19.

Captain Morris and Defendant Gutierrez were taken to Casa Grande Regional Hospital for further treatment of their injuries. [Gutierrez Aff. at ¶ 10; Padilla Aff. at ¶ 5f]

20.

Defendant Gutierrez suffered an injury to her right inner ear drum. [Gutierrez Aff. at ¶ 8]

21. 22.

Defendant Gutierrez did not return to work that day. [Id. at ¶ 11] Defendant Woods had no further contact with Plaintiff after Plaintiff was transported to emergency medical treatment. [Woods Aff. at ¶ 10]

23.

After Plaintiff was released from medical, Defendant Ford assisted other officers in transporting Plaintiff to an observation cell pending investigation of the incident. [Ford Aff. at ¶ 12; Padilla Aff. at ¶ 5g]

24.

Defendant Ford was then ordered to report to Wing II Control to relieve the officer on duty. [Ford Aff. at ¶ 13 & Attachment A]

25.

Defendant Padilla was not present during Plaintiff's assault on Captain Morris and Defendant Gutierrez. [Padilla Aff. at ¶ 5]

26.

Defendant Padilla took photographs of Plaintiff's physical condition following the incident and he interviewed Plaintiff in the observation cell at a later time in the presence of Supervisor Brodeur. [Id. at ¶ 6 & Attachment A; Affidavit of Russell Brodeur at ¶¶ 3-4 (attached hereto as Exhibit G)] Plaintiff did not request medical treatment at that time. [Padilla Aff. at ¶ 4]

27.

During Defendant Padilla's interview of Plaintiff, no one else entered the observation cell and no one assaulted Plaintiff. [Padilla Aff. at ¶ 6-7; Brodeur Aff. at ¶ 4] 4

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28.

At approximately 8:30 p.m., Plaintiff was transferred to a maximum security facility (SMUII) at ASPC-Eyman. [Exhibit B of Plaintiff's Motion for Summary Judgment at 3 (attached hereto as Exhibit H )]

29.

Upon intake at SMUII, Plaintiff was treated for the injuries he sustained during his assault on correctional officers. [Id.] The nurse who treated Plaintiff at SMUII noted that he had a small open bleeding area on the top of his head, puffy eyes and pain in his right leg. [Id.] The nurse also observed that Plaintiff had a "red, puffy area to posterior [right] knee." [Id.] The nurse noted that Plaintiff "stated he was not treated for these issues." [Id.] The nurse flushed Plaintiff's eyes, cleansed the wound on top of his head, gave him Ibuprofen and placed him on the nurse's list for the next day to recheck the injury to his knee. [Id.]

30.

Plaintiff requested no further treatment for these injuries. [Health Needs Requests of Plaintiff from August 28, 1995 to June 10, 2005 & Plaintiff's Medical Records for April 20, 2004 (attached hereto as Exhibit I)]

31.

On April 20, 2004, Plaintiff was assaulted by another inmate while he was being transported in a van to court. [Id. at 1-7]

32.

As a result of the April 2004 attack, Plaintiff suffered injuries to his eye, head, neck, back, thumb and knee. [Id.]

33.

Since that time, Plaintiff has requested regular treatment for these injuries which he attributes to the April 2004 attack. [Id. at 3-26]

34. 35.

On December 11, 2003, Plaintiff filed his Amended Complaint. [Dkt. #12] In Count I of his Complaint, Plaintiff alleged that, on October 23, 2000, Defendants Ford, Wilson and Gutierrez used excessive force when they beat him in the head with a radio, sprayed him in the eyes with chemical agents, 5

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and drowned him to the point of unconsciousness in the cell toilet while he was handcuffed and shackled. [ Id. at 4-4A] Plaintiff further alleged that Defendants Padilla and Woods2 failed to prevent the misuse of force against him on October 23, 2000. [Id. at 4A] Plaintiff contends that he suffered permanent damage to his eyesight, physical scarring, severe psychological trauma, severe physical pain, chronic dizzy spells and knee pain as a result of this alleged attack. [Id. at 4] These are the same injuries Plaintiff alleges resulted from the April 2004 attack on him by a fellow inmate. [Exhibit I at 3-26] Plaintiff does not allege that any of the Defendants was responsible or involved in the April 2004 attack. [Dkt. #12] In Count II of his Complaint, Plaintiff alleged that Defendants Padilla, Woods, Ford, Wilson and Gutierrez were deliberately indifferent to his medical needs because they ignored his pleas for medical treatment after Officers Ford, Wilson and Gutierrez allegedly assaulted him on October 23, 2000. [Id. at 5] Plaintiff claims he was not treated for his injuries until five hours later when he was transferred to a new prison complex where he was immediately taken to the emergency room. [Id. at 4A] Plaintiff contends that this delay in treatment caused an unnecessary and wanton infliction of pain and evidences the malicious intent of all officers involved. [Id. at 4A ­ 5]

Although Plaintiff's Complaint alleges that Deputy Warden Marshal Blaine was also responsible for failing to prevent the misuse of force against him and refusing to provide him with medical treatment, Deputy Warden Blaine was apparently never served in this matter. 6
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42.

All force used against Plaintiff was in response to Plaintiff's attack upon two correctional officers. [Wilson Aff. at ¶¶ 5-8; Woods Aff. at ¶¶ 5-7; Ford Aff. at ¶¶ 5-9; Gutierrez Aff. at ¶¶ 6-9; Padilla Aff. at ¶¶ 5a ­ d]

43.

Defendants Padilla and Woods never witnessed any assault on Plaintiff. [Padilla Aff. at ¶ 7; Woods Aff. at ¶ 10]

44.

Teresa Zurbrigg-Walton was the nurse on duty that day. [Zurbrigg-Walton Aff. at ¶ 5 & Exhibit H] She assessed Plaintiff and noted that he was coherent and alert. [Id. at ¶ 6 & Exhibit H] Plaintiff complained of difficulty breathing due to the use of pepper spray and pain in his right foot. [Id.]

45.

Plaintiff never complained of a head injury or knee pain. [Id. at ¶¶ 6-7; Exhibit H at 1]

46.

Plaintiff did not appear to have any other visible life-threatening injuries and treatment was deferred until a later time. [Id. at ¶ 7]

47.

The decision to defer medical treatment for Plaintiff's injuries was made by medical personnel, not Defendants. [ Id.]

RESPECTFULLY SUBMITTED this 28th 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 28th 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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Earl Felton Crago, Jr. #115357 ASPC - Eyman - SMUI P.O. Box 4000 Florence, AZ 85232 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS04-0331/RSK:G04-20766 #931130.2