Free Lodged Proposed Document - District Court of Arizona - Arizona

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 27 28

Terry Goddard Arizona Attorney General Michael E. Gottfried Assistant Attorney General State Bar No. 010623 1275 West Washington Street Phoenix, Arizona 85007-2997 Phone: (602) 542-7693 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ALBERT W. DeLEON, No. CIV04-0446-PHX-JAT Plaintiff, v. DORA B. SCHRIRO; et. al., Defendants. JOINT PROPOSED PRETRIAL ORDER

Pursuant to the Court's orders of September 5, 2007 (Dkt. #251), and November 16, 2007 (Dkt. #263), Plaintiff, pro se, and Defendants 1 , by undersigned counsel, respectfully submit the following Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for December 3, 2007 at 11:00 a.m. A. COUNSEL FOR THE PARTIES: Plaintiff: Albert W. DeLeon, #P269470, pro se MARICOPA COUNTY LOWER BUCKEYE JAIL 3250 West Lower Buckeye Road Phoenix, AZ 85009 (602) 876-1000

1

Reyna, Paredez, Alavos, and Ramon.

#94952v2 JPPTO

Case 2:04-cv-00446-JAT

Document 267

Filed 11/26/2007

Page 1 of 19

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 27 28
#94952v2 JPPTO

Defendants: Michael E. Gottfried Assistant Attorney General 1275 West Washington Street Phoenix, Arizona 85007-2997 (602) 542-7693 (602) 542-7670 Facsimile B. STATEMENT OF JURISDICTION

The Plaintiff claims involve federal and state questions and the Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 1367 and 42 U.S.C. § 1983. C. NATURE OF ACTION

Plaintiff's Complaint contends that on October 17, 2002, Defendants Reyna, Paredez, Avalos, and Ramon used excessive force against him in retaliation for his alleged participation in a conspiracy to assault a female officer. Plaintiff alleges that this

retaliation took place when he was transferred from one housing unit and into another. Plaintiff alleges that Defendant Reyna, who readied him for transport, applied handcuffs onto his wrist too tightly. He alleges that later, upon his arrival at his new housing unit, Defendants Paredez, Avalos, and Ramon forced him to crawl up a flight of stairs to gain entry to his new housing assignment although he was allegedly physically incapable of walking up the stairs. Defendants contend that handcuffs were properly used to transport Plaintiff and were not applied improperly or too tightly. Plaintiff did not seek any medical attention for problems associated with handcuffs. Defendants also contend that Plaintiff was not forced to climb the steps to his cell in retaliation for anything. The Court has already ruled that Plaintiff's shoes and cane were properly taken from him prior to the move to a different cell. Further, Defendants did not know the reason for the move and Plaintiff was able to walk without the cane and shoes. He did not crawl up the stairs, but rather walked slowly using the handrail. Further, as a matter of law, Plaintiff can not establish that he was retaliated against because of the exercise of a constitutional right.

2
Document 267 Filed 11/26/2007 Page 2 of 19

Case 2:04-cv-00446-JAT

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 27 28

D.

CONTENTIONS OF THE PARTIES 1. Plaintiff's Contentions

On October 17, 2002, Plaintiff was falsely accused of participation in a conspiracy to sexually assault a female officer. DeLeon is an Americans With Disabilities Act ("ADA") disabled cripple. Prior to October 17, 2002, he walked with the aid of left shoe lifted one and one-half (1 ½) inches, a cane and a wheelchair. Every disabled inmate in the Arizona Department of Corrections ("ADC") must have medical waivers on him at all times to allow him the use of medical devices or medical restrictions. All inmates with medical devices or restrictions must show his waivers to transport officer in order to keep and use them. On October 17, 2002, DeLeon showed Lt. Reyna at East Unit one waiver to keep his orthopedic shoes and one for the use of a cane and no climbing. Lt. Reyna denied and cursed DeLeon calling him a stalker, rapist, child molester and more. Lt. Reyna said he did not care about DeLeon's medical waivers. DeLeon was ordered by the Lt. to take his orthopedic shoes off and give up the cane. The Lt. put shackles and handcuffs on DeLeon excessively tight, then forced DeLeon to drag himself to Central Unit. On his arrival at Central Unit DeLeon requested a wheelchair for the pain and falls from excessively tight restraints to ankles, hands and his disabled body. Denials and curses is what DeLeon received. DeLeon was forced to drag himself from Gate 7 to cell block three ("CB3"). When entering CB3, DeLeon was told by officers that they received phone calls of the false charge. These calls put Officer Paredez, Ramon and Avalos in retaliation frenzy that led them to call DeLeon a rapist, stalker, child molester and more. DeLeon's inability to walk without orthopedic shoes and cane was obvious. After DeLeon disclosed his medical waiver saying he's not to climb and requested a bottom cell, he was forced to drag himself up six (6) flights of stairs with restraints on his ankles and wrists. When he was halfway up he suffered a dislocated disc. When he reached the top he suffered a heart attack requiring immediate hospitalization and open heart surgery from the strain he was put through.
#94952v2 JPPTO

3
Document 267 Filed 11/26/2007 Page 3 of 19

Case 2:04-cv-00446-JAT

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 27 28

"Confidential Informant": Under Benefield v. McDowell, 241 F.3d 1267 (10th Cir. 2001), the Court held "a person is responsible for, or acting on snitch-informant information" legally responsible for all acts committed as a result of acting on false information, actionable under Eighth Amendment. Lt. Reyna, Correctional Officer ("CO") II Ramon, CO Avalos and CO Paredez, acted "intentionally," separate and in concert, on false information, with vengeful, implied malice, sadistically, inflicting on DeLeon heinous acts of "torture", inflicting on DeLeon severe pain and suffering, emotional trauma, and causing DeLeon serious, irreparable permanent injury, heart attack and a dislocated disc. Acts events, constitute "genuine issues of material fact" that must be determined by a jury. All issues in dispute must be submitted to a jury at trial for determination. "Reckless endangerment ­ cruel and unusual punishment." 2. Defendants' Contentions

In addition to having no personal knowledge of the reason for Plaintiff's transfer, Defendant's actions towards Plaintiff were penologically justified. Plaintiff apparently alleges that he was subjected to cruel and unusual punishment by allegedly having his cuffs applied too tightly and by allegedly being forced to crawl up stairs when his physical limitations precluded him from doing so. Plaintiff needs to demonstrate that utilized excessive use of force, i.e., that they subjected him to (1) intentional "punishment," or physical torture which is so "totally without penological justification that it results in the gratuitous infliction of suffering"; and (2) that the alleged infliction of pain was serious enough to constitute a deprivation of basic necessities of life. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Where an inmate claims that prison officials used excessive force, he must prove a high degree of culpability. Whitley v. Albers, 475 U.S. 312, 320 (1986). To present an Eighth Amendment claim for excessive force, a prisoner must demonstrate that officials applied force "maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 320-21. Plaintiff must show that "officials used
#94952v2 JPPTO

4
Document 267 Filed 11/26/2007 Page 4 of 19

Case 2:04-cv-00446-JAT

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 27 28

force with `a knowing willingness that [harm] occur.'" Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1978 (1994). Determining whether prison officials have acted maliciously and sadistically, the United States Supreme Court directs that the Court consider several factors: (1) the need for application of force, (2) the relationship between that need and the amount of force used, (3) the threat "reasonably perceived by the responsible officials," and (4) "any efforts made to temper the severity of a forceful response." Hudson v. McMillian, 503 U.S. 1, 7 (1992). The Court must also consider the "extent of injury suffered by an inmate." Id. In Whitley v. Albers, 475 U.S. 312, the Supreme Court stated that the essential issues is "whether force was applied in a good effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm." Id. at 320-21. It is Defendant Reyna's contention that, as an ADC Correctional Officer, he was obligated to ensure the safe and orderly operation of the prison facility so as not to jeopardize internal security. Bell v. Wolfish, 441 U.S. 520, 546-47 (1979) ("`[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.'" [citations omitted]). As a matter of law, Officer Reyna is constitutionally mandated to exercise discretion to administer the day-to-day affairs of the prison in such a way as to avoid jeopardizing prison security, and the safety, health and well-being of Plaintiff, the public staff and other inmates. Bell, 441 U.S. at 547; Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817, 827 (1974); Procunier v. Martinez, 416 U.S. 396, 404-5 (1974); Cruz v. Beto, 405 U.S. 319, 321 (1972). Officer Reyna was responsible for insuring that Plaintiff, an inmate, was properly restrained prior to moving him from Florence-East Unit to Florence-Central Unit. In doing so, he insured that he appropriately applied handcuffs on Plaintiff's wrist. He used no more force than was necessary to properly apply the cuffs.

#94952v2 JPPTO

5
Document 267 Filed 11/26/2007 Page 5 of 19

Case 2:04-cv-00446-JAT

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 27 28

Plaintiff's claim of excessive force is based solely upon the allegation that Officer Reyna applied handcuffs on his wrist too tightly. The force at issue is the amount of force used to place an inmate in handcuffs prior to transport. This alleged force does not meet the standard for an Eighth Amendment claim of excessive force. There is no evidence that Plaintiff sustained any injury whatsoever as a result of having the cuffs applied, or that they were, in fact, applied tightly. Plaintiff cannot show that he was subjected to excessive use of force. Under these circumstances, the need for the force and the amount of force applied were appropriate. Officer Reyna did not retaliate but merely performed his duty as a correctional officer by insuring that Plaintiff was properly restrained prior to transport. STAIRS To the extent that Plaintiff alleges that Defendants Paredez, Avalos, and Ramon forced him to crawl up two flights of steps to his assigned housing in retaliation for his alleged threat against a female correctional officer, he has no facts to support his claim. A prisoner alleging retaliation under 42 U.S.C. § 1983 must establish that he was "retaliated against for exercising his constitutional rights and that the retaliatory action did not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813,815-16 (9th Cir. 1994). Plaintiff fails to satisfy these requirements. Plaintiff must establish a link between the exercise of the constitutional right and the allegedly retaliatory conduct. The Plaintiff merely makes conclusory allegations that are insufficient to make a claim. Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). Plaintiff's claim of retaliation against Defendants should fail. At the outset, Plaintiff must show he was exercising a constitutional right that later caused a retaliation against him. Here, the only allegation was that he was retaliated against because the Defendants thought he was involved in a plot to sexually assault another officer. While with additional facts not present here that may state a claim for an

#94952v2 JPPTO

6
Document 267 Filed 11/26/2007 Page 6 of 19

Case 2:04-cv-00446-JAT

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 27 28

argument that he was subjected to "cruel and unusual punishment", it does not state a claim for retaliation. Next, Plaintiff cannot show, nor is there any evidence to show that Defendants were aware of the reason for Plaintiff's transfer out of one housing unit and into another housing unit. Without knowledge about the reason why Plaintiff was being transferred, Defendants cannot be said to have retaliated. Additionally, like all transferred inmates, Plaintiff was in flip-flops and a jumper. The officers at the receiving unit were unaware of any physical limitations that Plaintiff may have had. He did not advise them, nor did he provide them with any documentation showing, that he was not to climb stairs. The medical waiver issued to Plaintiff, even if he did show it to any of the Defendants, did not restrict him from climbing stairs or being on an upper tier. Further two of the Defendants had nothing to do with Plaintiffs transfer up the stairs. On October 17, 2002, Officer Ramon was assigned to the unit control room and had no personal contact with Plaintiff whether it was to escort him to his cell or remove his restraints. Having had absolutely no contact with Plaintiff, Officer Ramon did not and could not have retaliated against Plaintiff. Officer Paredez, a new officer on the unit at the time, also had no contact with Plaintiff. He did not force Plaintiff to "crawl" up the flights of steps to his housing assignment. Officer Paredez's assignment at the time was as the "Key Officer." As such, he was assigned to the tunnels during his shift. The tunnels contained various key

controlled panels that are operated by the officer. As Key Officer, he had no contact with inmates during his shift and would not have escorted Plaintiff to his new housing assignment. Defendant Avalos, the unit sergeant, was unaware of both the reasons for Plaintiff's move, and any physical limitation that would have precluded his ascension to an upper-tier cell. Sgt. Avalos has no duties regarding cell assignment and did not assign Plaintiff to an
#94952v2 JPPTO

7
Document 267 Filed 11/26/2007 Page 7 of 19

Case 2:04-cv-00446-JAT

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 27 28

upper-tier cell. His duties were merely to escort the inmate to his new cell. Like all correctional officers, he was not privy to the Plaintiff's medical records and was unaware of any physical limitations Plaintiff may have had. The escorting officers were not advised of any physical limitations and Plaintiff ascended the stairs normally without assistance. He did not crawl up to his cell. Plaintiff cannot prove any of the elements of excessive use of force or an improper retaliation. In fact, the evidence will show that Defendants acted appropriately when transferring Plaintiff to his housing unit. Finally, Plaintiff can show no physical injury resulted, precluding suit under the Prison Litigation Reform Act ("PLRA") of 1996 for any damages for emotional distress. The PLRA, effectively codified the Supreme Court's ruling in Farmer v. Brennan, 511 U.S. 825, 834 (1994), that nominal damages are not appropriate in an Eighth Amendment context and that the standard is actual physical injury. 42 U.S.C. § 1997e (e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."); see Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (dismissal of claim alleging emotional distress from transfer to higher custody prison is proper under 42 U.S.C. § 1997e(e) which requires prior showing of physical injury, when amending the complaint would not cure deficiency). The injury alleged must be more than de minimus. Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ("we hold today that for all claims to which it applies, 42 U.S.C. § 1997e(e) requires a prior showing of physical injury that need not be significant but must be more than de minimis").
Although Plaintiff alleges that he suffered a heart attack as a result of the alleged retaliation by the Defendants, this Court has precluded his claim. Plaintiff is unable to show any connection between the alleged actions of the Defendants, and his later heart attack. Thus, he is left solely to claim that he suffered "emotional distress" during the alleged incident. As a result, Plaintiff will be unable to make the requisite "prior showing of physical injury" to support his claim for emotional-distress damages. 42 U.S.C. § 1997e(e); see also, Oliver, 289
#94952v2 JPPTO

8
Document 267 Filed 11/26/2007 Page 8 of 19

Case 2:04-cv-00446-JAT

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 27 28

at 629 (alleged back and leg pain from sitting and sleeping on the benches and floor, injuries from assault by other inmate and painful canker sore for which plaintiff got medical treatment were insufficient to meet PLRA physical injury standard).

E.

STIPULATIONS AND UNCONTESTED FACTS 1. At the time of the alleged claims, Plaintiff was an inmate housed in

the Arizona State Prison Complex-Florence, East Unit, who was transferred on October 17, 2002 to the ASPC-Florence, Central Unit, pending an investigation of possible conspiracy to commit assault. 2. 3. facility. 4. Unit. 5. Defendants Paredez and Ramon were Correctional Officers assigned Defendant Avalos was a Correctional Sergeant at the Florence Central Plaintiff did not conspire to commit an assault. Defendant Reyna was employed as a Correctional Officer at the

to the Florence Central Unit. 6. Defendant Reyna applied handcuffs to Plaintiff's wrist prior to

escorting him to the Florence-Central Unit. 7. officials. 8. Defendants did not make housing assignments, and had no say in the Plaintiff was assigned to an upper-third-tier cell by correctional

assignment of Plaintiff to his third-tier cell. 9. Defendants were unaware of any medical conditions Plaintiff may

have had at the time of his movement. 10. stairs. 11. Plaintiff's cane and orthopedic shoes were properly taken from him On October 17, 2002, Plaintiff had no orders precluding him climbing

before the move to an upper third-tier cell on October 17, 2002.
#94952v2 JPPTO

9
Document 267 Filed 11/26/2007 Page 9 of 19

Case 2:04-cv-00446-JAT

1 2 3 4 5 6 7 8 9 10

12.

Plaintiff did not have a heart attack on October 17, 2002, because of

his having to go up stairs to reach his upper third-tier cell or because handcuffs were applied too tightly to him. 13. Plaintiff did not seek medical treatment for any injuries associated

with having been handcuffed on October 17, 2002, or for any bumps, bruises, abrasions, or injuries asserted with having climbed stairs on October 17, 2002. F. CONTESTED ISSUES OF FACT AND LAW 1. Plaintiff a. Plaintiff's Contested Issues of Law QUALIFIED IMMUNITY

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982); see Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855 (1978) (the Court held (cases on point) "where an official could be expected to know that certain conduct would violate statutory or Constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action." "We have held that qualified immunity would be defeated if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the Constitutional rights of the Plaintiff, or if he took the action with malicious intention to cause a deprivation of Constitutional rights or other injury.") (emphasis mine). See, Harris v. Dakus, 911 F.2d 37 (C.8 Nib. 1990) (court held "official[s] have no immunity in 1983 action where contours of right violated were so clear at time official acted that reasonable official would have understood that he was doing violated that right."). Under Burns v. Laranger, Court held "on assessment of qualified immunity claim in 1983 rights action, if asserted by Plaintiff was clearly established at time of violation court is required to assume that right was recognized by Defendant." 907 F.Supp. __ (C.A. 1 ME 1990) (emphasis mine).

#94952v2 JPPTO

10
Document 267 Filed 11/26/2007 Page 10 of 19

Case 2:04-cv-00446-JAT

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 27 28

Acts aforementioned in retaliation history, cruel, savage, heinous infliction of wanton, severe pain and suffering by Lt. Reyna, CO II Ramon, CO II Avalos, and CO II Paredez, prohibits any form of "good faith" defense. Said Defendants were knowledgeable their intentional acts constituted "reckless endangerment" to DeLeon's "safety", and cruel and unusual violated the Eighth Amendment of the U.S. Constitution and violated protection to DeLeon under statutory § 504 of the Rehabilitation Act 1973, 29 U.S.C. § 794(A) and Title II of the ADA, 42 U.S.C. § 12131. Under no circumstances can said named Defendants claim they were not aware their cruel, heinous, sadistic acts, with implied malice would cause DeLeon severe pain and suffering, worsening his disability medical conditions. On October 17, 2002, Lt. Reyna confiscated DeLeon's medically issued orthopedic shoes and his cane. DeLeon was certified ADA disabled cripple, by SSI in 1978, had surgery on his left ankle in 1973, surgery on his right ankle in 1975, and has a permanent crippling walking disability whereby his left leg is one-and-one-half (1 ½) inches shorter than his right leg. On October 17, 2002, Lt. Reyna, enraged and angry, verbally abused DeLeon, and cursed at DeLeon during his preparation for transport to Central Unit. He also falsely accused DeLeon of intending to rape, assault a female officer. An investigation later on cleared DeLeon of the false allegations (counsel on discovery refused to produce investigative-incident reports, therefore unable to submit documentation to the Court as evidence). "Genuine issues of material Fact and Law" that must be determined by a jury. All issues in dispute must be submitted to a jury at trial for determination. endangerment ­ cruel and unusual punishment." b. Plaintiff's Contested Issues of Facts. "Reckless

On October 17, 2002, COs Ramon, Avalos, Paredez were the assigned CB3 officers. Assigned cell block officers have the responsibility to ensure the "safety ­
#94952v2 JPPTO

11
Document 267 Filed 11/26/2007 Page 11 of 19

Case 2:04-cv-00446-JAT

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 27 28

welfare" of the inmate DeLeon. Word of DeLeon's false allegation of "intent to assault a female officer" was passed on to the CB3 officers. ADC policy mandates that all ADA inmates with a medical waiver not to climb must be assigned a bottom, lower level cell; no higher tier assignment. Said named officers, in retaliation decided to assign DeLeon to cell HC up on the third tier. Said officers verbally abused DeLeon, cursed DeLeon, when he objected to the cell assignment up on the third tier. Said named officers belligerently, angry, vengeful, and with sadistic implied malice gave DeLeon a threatening direct order to climb six (6) flights of jagged steel stairs to reach cell HC 15. Said heinous, sadistic, vengeful act, act of retaliation caused DeLeon to have a heart attack and a dislocated disc. DeLeon had to be rushed to St. Mary's Hospital emergency and heart surgery was performed on DeLeon on October 23, 2002. 2. Defendants a. Defendants' Contested Issues of Law 1) Plaintiff did not establish that he was retaliated against

for exercising a constitutional right. b. Defendants' Contested Issues of Facts. 1) tightly. 2) his assigned housing unit. 3) not crawl as he alleges. 4) Defendants did not know the reason for Plaintiff move Plaintiff climbed the stairs in a normal fashion and did Plaintiff was not forced to crawl up flights of steps to Plaintiff's handcuffs or shackles were not applied too

from the East Unit to the Central Unit. 5) Defendant Ramon was working the control room and

had no contact with Plaintiff on October 17, 2002.
#94952v2 JPPTO

12
Document 267 Filed 11/26/2007 Page 12 of 19

Case 2:04-cv-00446-JAT

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 27 28
#94952v2 JPPTO

6)

Defendant Paredez was working the "tunnels", located

away from the cell-block in question and had no contact with Plaintiff on October 17, 2002. G. LIST OF WITNESSES 1. Plaintiff's Witnesses a. Expected to Testify 1) Plaintiff DeLeon will testify that he had his orthopedic

shoes and cane confiscated by Lt. Reyna. 2) Defendant Reyna will testify that after DeLeon showed

him medical waivers to keep orthopedic shoes and cane, he confiscated both items. 3) Defendant Avalos will testify that after DeLeon

showed him a medical waiver to not climb, he forced DeLeon to drag himself up six (6) flights of stairs, causing dislocated disc and heart attack requiring open heart surgery. 4) Defendant Ramon will testify that after DeLeon

showed him a medical waiver not to climb, he forced DeLeon to drag himself up six (6) flights of stairs, causing a dislocated disc and heart attack requiring open heart surgery. 5) Defendant Paredez will testify that after DeLeon

showed him a medical waiver not to climb, he forced DeLeon to drag himself up six (6) flights of stairs causing a dislocated disc and heart attack requiring open heart surgery. 2. Defendants' Witnesses a. Fact Witnesses Who Shall Be Called at Trial 1. 2. Plaintiff Albert DeLeon. Defendant Reyna will testify regarding the movement

of Plaintiff in the facility as well as the procedures utilized for moving inmates. 3. Defendant Avalos. He will testify that he has no

knowledge regarding Inmate DeLeon's allegations that he was forced to crawl up the stairs to reach his assigned cell. He will further testify that, pursuant to ADC policy, if an inmate 13
Document 267 Filed 11/26/2007 Page 13 of 19

Case 2:04-cv-00446-JAT

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 27 28

is unable to be escorted to his assigned cell, a supervisor or count movement officer is notified to handle the situation. 4. Defendant Ramon will testify regarding his duties as a

COII including his assignment as a control room operator. When not assigned to the control room, his duties included escorting inmates to their assigned cells and removing their restraints. He did not assign DeLeon to any particular cell. Assigning inmates to specific cells within the cell block was not within the scope of his duties. He will testify that on the day that Inmate DeLeon was transferred to CB-3, he was assigned to the control room and did not have any physical contact with the inmate. He did not escort Inmate DeLeon to his cell and did not remove his restraints. He is also not a medical provider and did not have any medical training. Only ADC Health Care Providers have access to the medical records of inmates. In order for Correctional Officers to be advised of any medical conditions or special restrictions for an inmate, the inmate must provide a Special Needs Order ("SNO") from a Health Care Provider outlining his medical condition and specifying any special requirements or restrictions for the inmate. He does not recall Inmate DeLeon providing any SNOs requiring him to use a cane or orthopedic shoes and stating that he was not to climb any stairs. In fact, if an inmate has a medical issue that prevents him from accessing his assigned cell, the inmate must request that a supervisor be called to handle the issue. Further, pursuant to ADC policy, an inmate would not be allowed to crawl up the stairs. Rather, a supervisor would be called and informed of the situation so that it could be handled appropriately. 5. Defendant Paredez will testify that he had been

correctional officer for only a few months. He does not recall ever having any contact with DeLeon and never forced Inmate DeLeon to crawl up the stairs. He would have no reason to know why DeLeon was transferred to the unit. His recollection is that the majority of his day was spent in the tunnels as the unit "key officer."

#94952v2 JPPTO

14
Document 267 Filed 11/26/2007 Page 14 of 19

Case 2:04-cv-00446-JAT

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 27 28

H.

LIST OF EXHIBITS 1. Plaintiff's Exhibits a. Same as Defendants' list.

2.

Defendants' Exhibits a. Plaintiff's Complete ADC Medical Records File, inclusive of

medical records from St. Mary's Hospital and Tucson Heart Hospital, dated 10-5-1999 to 7-26-2004 (345 pgs.), 1-12-2000 to 8-16-2002 (46 pgs.), 03-20-2003 to 6-07-2005 (23 pgs.), and also including but not limited to,:
1)

2002-08-02 Duty/Special Needs Order [cane, but "no

climbing stairs" indicated] (1 pg.); 2) Findings] (1 pg.);
3)

1993-07-21 X-Ray Department [Request to be X-rayed,

1996-05-17[?] ADC X-Ray Department [Request to be

X-rayed, Findings] (1 pg.);
4)

1994-06-03 X-Ray Department [Request to be X-rayed,

Findings] (1 pg.); and,
5)

1996-04-19 ADC X-Ray Department [Request to be

X-rayed, Findings] (1 pg.); b. Any and all ADC incident reports, including but not limited to: 1) and redacted) (2 pgs.); 2) 3) 2007-10-17 SIR 02-3702 (20 pgs.); Special Security Memorandum (from Officer Chavez 2002-11-17 IR 02-A03-2779 (stamped "Confidential"

and Sgt. Nelson to D.W. McWilliams) (redacted) (1 pg.); and,

#94952v2 JPPTO

15
Document 267 Filed 11/26/2007 Page 15 of 19

Case 2:04-cv-00446-JAT

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 27 28
#94952v2 JPPTO

4)

Memorandum from D.W. McWilliams, ASPC-Florence,

East Unit, to C.O. IV K. Harkins, ASPC-Florence, Central Unit (redacted) (1 pg.); c. Plaintiff's Inmate Grievances and Grievance Responses,

including but not limited to: 1) 2) 3) Coordinator) (3 pgs.); 4) (1 pg.); 5) Schriro) (2 pgs.); and 6) 2003-09-10 GF Supplement ­ Grievance Appeal 2003-07-07 Inmate Grievance Appeal (to Director 2003-06-26 Grievance Response (from FHA Sloan) 2003-005-21 Inmate Letter [informal grievance] (1 pg.); 2003-05-28 Inmate Letter Response (1 pg.); 2003-06-07 Inmate Grievance (to Grievance

Response (from Director Schriro) [not dated but CO received on 9-10-03 to give PL] (1 pg.); d. All exhibits submitted in support of Defendants' Motion for

Summary Judgment, i.e., AIMS Report (updated through 11-23-2007); Plaintiff's Complaint; Plaintiff's First Motion to Amend [Complaint]; Plaintiff's Second Motion to Amend [Complaint]; Report and Recommendation Order of 10-22-2004; Plaintiff's Second Amended Complaint; ADC Medical Records (listed in detail above in #1); Plaintiff's Deposition [per the Court's trial instructions, will be not listed as an exhibit, but will be separately provided at trial]; Declaration of Michael Reyna; Declaration of Andres Avalos; Declaration of Adrian Paredez; Declaration of Frederick Ramon; Declaration of Aurora Aguilar; and Declaration of Donald Sloan; e. f. but not limited to: 16
Document 267 Filed 11/26/2007 Page 16 of 19

ADC Department Orders 802 and 909; ADC Operational Records pertinent to the incident, including

Case 2:04-cv-00446-JAT

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 27 28
#94952v2 JPPTO

1) Sheets for Plaintiff (21 pgs.); 2) 3) (1 pg.); 4)

2002-11-07 to 2003-03-27 Individual Inmate Record

2002-10-17 East Unit Roster ­ Day Shift ­ Log (1 pg.); 2002-10-17 Individual Inmate Record Sheet for Plaintiff

2002-10-17 ADC ASPC-Florence, Central Unit, Cell

Block 3, Correctional Services Log (redacted) (4 pgs.); 5) 2002-10-18 ADC ASPC-Florence, Central Unit, Cell

Block 3, Correctional Services Log (redacted) (4 pgs.); and, 6) Undated Letter signed by Plaintiff (regarding another

inmate that informed Plaintiff he had been stalking female officers) (1 pg.); g. Picture of ASPC-Florence, Central Unit, Cell Block 3,

Stairwell from 1st to Second Floor [picture taken on 11-20-2007]; and h. Picture of ASPC-Florence, Central Unit, Cell Block 3 Building

Exterior and Showing the Fire Escape [picture taken on 11-20-2007]. I. MOTIONS IN LIMINE The deadline to file and respond to motions in limine expired on November 15, 2007, and no motions in limine were filed. However, the Court previously precluded any evidence of Defendant's heart attack and has ruled that Defendant's cane and orthopedic shoes were properly confiscated prior to Defendants move to a different cell. J. LIST OF ANY PENDING MOTIONS Defendants' Motion for Leave to File Summary Judgment and to Continue Trial filed on November 19, 2007; Plaintiff agrees that the trial can be continued. K. PROBABLE LENGTH OF TRIAL Defendants anticipate a 2 day jury trial.

17
Document 267 Filed 11/26/2007 Page 17 of 19

Case 2:04-cv-00446-JAT

Case 2:04-cv-00446-JAT

Document 267

Filed 11/26/2007

Page 18 of 19

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 27 28

Original submitted this ____ day of November, 2007, to: The Honorable James A. Teilborg UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 401 West Washington Street, SPC 51 Phoenix, AZ 85003 Copy mailed the same date to: Albert W. DeLeon, #P269470 MARICOPA COUNTY LOWER BUCKEYE JAIL 3250 West Lower Buckeye Road Phoenix, Arizona 85009 s/ C. Jordan Secretary to Michael E. Gottfried IDS04-0271/RSK:G03-03830

#94952v2 JPPTO

19
Document 267 Filed 11/26/2007 Page 19 of 19

Case 2:04-cv-00446-JAT