Free Trial Memo - District Court of Connecticut - Connecticut

Case 3:00-cv-00391-HBF

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT DUANE ZIEMBA V. FREDERICK THOMAS, ET AL. : : : APRIL 3, 2006 CIVIL NO. 3:00CV391 (HBF)

TRIAL MEMORANDUM I. TRIAL COUNSEL For the Plaintiff: Antonio Ponvert, III Koskoff, Koskoff & Bieder, P.C. 350 Fairfield Avenue, 5th Floor Bridgeport, CT 06604 Tel.: (203) 336-4421 James J. Nugent Nugent and Bryant 236 Boston Post Road Orange, CT 06477 Tel.: (203) 795-1113 For the Defendants: Matthew B. Beizer Assistant Attorney General 110 Sherman Street Hartford, CT 06105 Tel.: (860) 808-5450 Perry Zinn Rowthorn Assistant Attorney General 55 Elm Street Hartford, CT 06106 Tel.: (860) 808-5020

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II.

JURISDICTION Federal question.

III.

JURY/NONJURY Jury trial.

IV.

LENGTH OF TRIAL The plaintiff estimates two days. The defendants estimate one week.

V.

NATURE OF THE CASE The issues for trial are set forth in the Court's order dated September 29, 2005 (Docket

#113). The plaintiff claims that: a) several defendants utilized excessive force during a March 9, 1998 incident at Corrigan Correctional Center; b) defendant Thomas violated his First and Fourteenth Amendment rights by the "theft" of his writing materials in January, 1998; and c) Warden David Strange has supervisory liability for failing to remedy unconstitutional acts leading up to the March 9 incident. The plaintiff seeks monetary damages from each defendant. His damages include pain and suffering, mental anguish and violation of his constitutional rights. Given the nature of the case, these damages cannot be itemized. VI. PLAINTIFF'S CONTENTIONS The plaintiff contends that the defendants committed the acts as described in the Court's September 29, 2005 Order Regarding Remaining Issues For Trial.

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VII.

DEFENDANTS' CONTENTIONS A). In regard to the excessive force claim, the defendants maintain that the force that

was used on the plaintiff was used in a good faith manner to restore discipline. Additionally, all of the defendants involved in this claim maintain that they are entitled to qualified immunity. B). In regard to the claim allegedly brought pursuant to the First and Fourteenth

Amendments, defendant Thomas maintains that the plaintiff is unable to set forth any facts to establish a legally viable claim. Additionally, defendant Thomas maintains that the plaintiff failed to exhaust his administrative remedies pertinent to this claim and according to the Prison Litigation Reform Act ("PLRA"), is barred from pursuing this claim. Also, defendant Thomas maintains that he is entitled to qualified immunity on this claim. C). In regard to the supervisory liability claim, defendant Strange maintains that the

plaintiff is unable to set forth any facts to establish a legally viable claim. Additionally, defendant Strange maintains that the plaintiff failed to exhaust his administrative remedies pertinent to this claim and according to the PLRA, is barred from pursuing this claim. Also, defendant Strange maintains that he is entitled to qualified immunity on this claim. VIII. LEGAL ISSUES A). Did the defendants involved in the March 9 incident use force in a good faith

manner to restore discipline, or, maliciously and sadistically for the purpose of causing harm; B). Did defendant Thomas violate the plaintiff's First Amendment rights by

"stealing" the plaintiff's legal materials in January 1998;

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C).

Can the plaintiff establish a viable supervisory liability claim against defendant

Warden Strange based on his involvement in the incidents leading up to the March 9, 1998 incident; D). In regard to the non-excessive force claims, did the plaintiff exhaust his

administrative remedies prior to bringing suit as required by the PLRA. Plaintiff contends that, as the Court held in its May 21, 2003 Ruling on Motion to Dismiss at page 4, plaintiff has exhausted all available administrative remedies, and none of the defendants may raise a PLRA exhaustion defense; and E). immunity. IX. STIPULATED FACTS A). At all times pertinent to this incident, the plaintiff was incarcerated at Corrigan In regard to all of the plaintiff's claims, are the defendants entitled to qualified

Correctional Center ("Corrigan"), and other facilities of the Department of Correction. B). At all times pertinent to this incident, the defendants were correctional officials

employed at Corrigan. C). On March 9, 1998, correctional officials conducted a shakedown of the plaintiff's

cell at Corrigan. D). X. Force was used on the plaintiff by correctional officials.

WITNESSES

DEFENDANTS' WITNESSES 1. Defendant Frederick Thomas will testify for the defendants. He will testify about

his involvement in the incidents set forth in the plaintiff's complaint. He may also testify about

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DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 2. Defendant Michael Fretard will testify for the defendants. He will testify about

his involvement in the incidents set forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 3. Defendant Brett Fulcher will testify for the defendants. He will testify about his

involvement in the incidents set forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 4. Defendant Timothy Shefer will testify for the defendants. He will testify about

his involvement in the incidents set forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 5. Defendant Steven Willard will testify for the defendants. He will testify about his

involvement in the incidents set forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 6. Defendant David Strange will testify for the defendants. He will testify about his

involvement in the incidents set forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc.

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7.

Defendant Richard Forrestal will testify for the defendants. He will testify about

his involvement in the incidents set forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 8. Dr. Edward Blanchette will testify as an expert witness in accordance with the

opinions set forth in his report dated September 20, 2002. The basis for his opinions, and the materials he relied on, are set forth in that expert report. 9. Warden Michael Lajoie will testify about his involvement in the incidents set

forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 10. Correctional Officer Michael Hanrahan will testify about his involvement in the

incidents set forth in the plaintiff's complaint. 11. Correctional Officer Diana Koor will testify about her involvement in the

incidents set forth in the plaintiff's complaint. 12. Captain Alfredo Gonzalez will testify about his involvement in the incidents set

forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 13. Correctional Nurse Miguel Ramirez will testify about his involvement in the

incidents set forth in the plaintiff's complaint. 14. Correctional Officer Ruth Petrello will testify about her involvement in the

incidents set forth in the plaintiff's complaint. She may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc.

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15.

Correctional Lieutenant Barr will testify about his involvement in the incidents set

forth in the plaintiff's complaint. He may also testify about DOC policy and practice concerning the shakedown of cells, the prohibition on contraband, the use of force, etc. 16. Dr. Timothy Silvis will testify about his involvement in the incidents set forth in

the plaintiff's complaint. PLAINTIFF'S WITNESSES 1. 2. The plaintiff, who will testify about all allegations in the complaint; Detective J. R. Masson, Detective Paul M. Gately, Sgt. Thomas Wakely, who may testify about the State Police Investigation and findings; 3. Captain Curtis Wood, Raymond Elterich, Alberto Saavedra, and Vincent Santopietro, who may testify about the Department's Security Investigation and findings; and 4. All parties.

PLAINTIFF'S OBJECTIONS TO WITNESSES The plaintiff objects to Dr. Blanchette's anticipated testimony. XI. EXHIBITS PLAINTIFF'S EXHIBITS 1. The videotape;

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2. 3. 4. 5. 6. 7.

Photographs of the plaintiff after the March 9 incident; Plaintiff's medical records pertinent to the complaint; DOC Administrative Directives 6.5, 6.6, 2.17, 1.10; Plaintiff's inmate grievances and appeals pertinent to the complaint; Newspaper article and letters to the editor; Security Division report concerning the March 9 incident, all statements and all attachments;

8.

All incident reports, use-of-force reports and other reports and statements concerning the March 9 incident;

9.

Entire State Police investigation file, including all statements and reports, concerning the March 9 incident;

10. 11.

Defendants' interrogatory answers; All medical records concerning the injuries alleged in the Complaint. Plaintiff will specify and produce these records at the pretrial.

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DEFENDANTS' EXHIBITS See attached. PLAINTIFF'S OBJECTIONS TO DEFENDANTS' EXHIBITS The plaintiff objects to the Defendants' Exhibits 526, 527, and 528. XII. DEPOSITIONS None. XIII. JURY INSTRUCTIONS See attached. XIV. EVIDENTIARY PROBLEMS 1. The plaintiff will submit Motions in Limine regarding the following:

a. motion to preclude reference to any illegal drug use by the plaintiff. b. motion to preclude reference to any convictions by name relative to the plaintiff's criminal history. c. motion to preclude reference to any alleged escape or actual escape by plaintiff. d. motion to preclude reference to the number of or any specifics whatsoever relative to any and all other lawsuits filed by plaintiff. e. motion to preclude any reference to disciplinary tickets. f. motion to preclude admission or use of any pages of plaintiff's medical file that have not been specifically identified by the defendants and ruled upon prior to trial.

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g. motion to preclude admission of unredacted versions of Defendant's Exhibits 526 and 527. h. motion to preclude Dr. Blanchette's testimony. The plaintiff respectfully proposes that motions and opposition briefs be filed after the pretrial conference, because some or all of these motions may be uncontested. 2. The defendants move, in limine, to preclude any evidence or testimony

concerning the excessive force verdict found in favor of the plaintiff against Correctional Captain Mangiafico concerning an incident occurring at Northern Correctional Institution in August, 1998. XVI. FURTHER PROCEEDINGS None. Respectfully submitted, DUANE ZIEMBA

BY:_____________________ Jim Nugent, Esq. Nugent and Bryant 236 Boston Post Road Orange, CT 06477 203-795-1111 ct05792 Antonio Ponvert III Koskoff Koskoff & Bieder 350 Fairfield Ave. Bridgeport, CT 06604 203-336-4421 ct17516 10

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DEFENDANTS Frederick Thomas, David Strange, Michael Fretard, Brett Fulcher, Timothy Shefer, Steven Willard and Richard Forrestal RICHARD BLUMENTHAL ATTORNEY GENERAL

BY:

_________________________________ Matthew B. Beizer Assistant Attorney General 110 Sherman Street Hartford, CT 06105 Federal Bar #ct16304 E-Mail: [email protected] Tel: (860) 808-5450 Fax: (860) 808-5591

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