Free Lodged Proposed Document - 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 E-mail: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Albert W. DeLeon, No. CIV04-0446 PHX PGR (JI) Plaintiff, JOINT PROPOSED PRETRIAL ORDER v. Dora B. Schriro, et. al., Defendants. Pursuant to this Court's Order of September 15, 2006, Defendants1 submit the following Joint2 Proposed Pretrial Order to be considered at the Final Pretrial Telephonic Conference set for ____________.

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Reyna, Paredez, Alavos, and Ramon.

Although Defendants mailed a draft copy of this Joint Pretrial to Plaintiff on September 20, 2006 and asked him to complete the portions of the pleading labeled "Plaintiff," and return it to undersigned counsel, Plaintiff has not done so. (See Attachment-Letter dated September 20, 2006.)

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COUNSEL FOR THE PARTIES Plaintiff: Albert W. DeLeon (pro per) 1714 South 2nd Street Phoenix, Arizona 85004_ Phone: 602Defendants: Susanna C. Pineda Assistant Attorney General 1275 West Washington Phoenix, Arizona 85007-2997 Phone: 602-542-7684 Fax: 602-542-7670 A. 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. B. NATURE OF ACTION

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Plaintiff's Complaint contends that on October 17, 2002, Defendants Reyna, Paredez, Alvaros, and Ramon by 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, Alvaros, 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. C. CONTENTIONS OF THE PARTIES 1. Plaintiff's Contentions.

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 Defendant's actions towards Plaintiff were penologically justified. Plaintiff apparently 3
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2.

Defendants' Contentions. a. Count I - Retaliation.

Defendants deny each and every allegation. 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. Moreover, the legitimate penological reasons which are proffered by prison officials, for conduct Plaintiff claims is retaliatory, are to be afforded "appropriate deference and flexibility." Pratt v. Rowland, 65 F.3d 802.807 (9th Cir. 1995). 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. First, 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. In addition to having no personal knowledge of the reason for Plaintiff's transfer,

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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. In essence, 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 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."

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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 (1986), 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, Defendant 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). He 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.

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Plaintiff's claim of excessive force is based solely upon the allegation that Defendant 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. Defendant Reyna did not retaliate but merely performed his duty as a correctional officer by insuring that Plaintiff was properly restrained prior to transport. 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. First, neither of these Defendants had any knowledge about why Plaintiff was transferred to the unit where they worked. Having no knowledge, they cannot be said to have acted in retaliation. 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.

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Additionally, on October 17, 2002, Defendant 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, Defendant Ramon did not and could not have retaliated against Plaintiff. Defendant Paredez, a new officer on the unit at the time, had no contact with Plaintiff. He did not force Plaintiff to crawl up the flights of steps to his housing assignment. Should an inmate be unable to ascend the steps in a normal fashion, Defendant Paredez would follow ADC policy and advised his supervisor about the inmate's physical limitations and his inability to be housed in an upper-tier cell. 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. Defendant Avalos has no duties regarding cell assignment and did not assign Plaintiff to an 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 cruel and unusual punishment. In fact, the evidence will show that Defendants acted appropriately when transferring Plaintiff to his housing unit. D. STIPULATIONS AND UNCONTESTED FACTS 7
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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 Florence Central Unit pending an investigation of possible conspiracy to commit assault. 2. Plaintiff did not conspire to commit an assault.

4 3. Defendant Reyna was employed as Correctional Officers at the facility. 5 4. Defendant Avalos was a Correctional Sergeant at the Florence Central Unit. 6 7 8 9 7. Plaintiff was assigned to an upper-third-tier cell by correctional officials. 10 11 12 13 10. On October 17, 2002, Plaintiff had no orders precluding him climbing stairs. 14 15 16 17 18 19 20 21 22 23 24 25 26 8
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5. Defendants Paredez and Ramon were correctional officers assigned to the Florence Central Unit. 6. Defendant Reyna applied handcuffs to Plaintiff's wrist prior to escorting him to the Florence-Central Unit.

8. Defendants did not make housing assignments, and had no say in the 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.

E.

CONTESTED ISSUES OF FACT AND LAW 1. Plaintiff. a. Plaintiff's Contested Issues of Law.

b.

Plaintiff's Contested Issues of Facts.

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2.

Defendants. a. Defendants' Contested Issues of Law. None b. Defendants' Contested Issues of Facts.

i. Plaintiff's handcuffs or shackles were not applied too tightly. ii. Plaintiff was not forced to crawl up flights of steps to his assigned housing unit. iii. Plaintiff climbed the stairs in a normal fashion and did not crawl as he alleges. iv. Defendants did not know the reason for Plaintiff move from the East Unit to the Central Unit. v. Defendant Ramon was working the control room and had no contact with Plaintiff on October 17, 2002. F. LIST OF WITNESSES 1. Plaintiff's Witnesses. a. Expected to Testify.

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Defendants' Witnesses. Fact Witnesses Who Shall Be Called at Trial.

Plaintiff Albert DeLeon. Defendant Avalos will testify regarding the movement of Plaintiff in the

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facility as well as the procedures utilized for moving inmates. 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 is unable to be escorted to his assigned cell, a supervisor or count movement officer is notified to handle the situation. 3. 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

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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. 4. 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. G. LIST OF EXHIBITS 1. Plaintiff's Exhibits (Defendants' Objections to Plaintiff's Exhibits are Indicated in Bold.

2. 1. 2. 3. Judgment. 4. 5. 6.

Defendants' Exhibits (Plaintiff's Objections to Defendants' Exhibits are Indicated in Bold.)

Plaintiff's Second Amended Complaint. Plaintiff's Complete ADOC Medical Records. All evidence submitted in support of Defendants' Motion for Summary Any and all incident Reports ______. Plaintiff's Inmate Grievances. All Inmate Grievance Responses 11

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H.

MOTIONS IN LIMINE 1. Plaintiff.

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Defendants.

Given this Court's ruling on Plaintiff's allegation that he suffered a heart attack, and that he cannot introduce evidence of his subsequent heart attack, no other motions in limine are anticipated at this time given Plaintiff's failure to cooperate in the preparation of this Joint Proposed Pretrial Order. I. None J. PROBABLE LENGTH OF TRIAL LIST OF ANY PENDING MOTIONS

Defendants anticipate a 2 day jury trial. K. TRIAL DATE

No trial date has been set as of this date. L. INSTRUCTIONS

The parties shall seek to stipulate to jury instructions and any stipulated jury instructions will be filed by __________________________. Instructions which are not agreed upon shall include citation to authority which shall not exceed one page per instruction and shall be filed by __________________________. Objections to any nonagreed upon instruction shall include citation to authority which shall not exceed one page per instruction and may be filed by __________________________. 12
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M.

VOIR DIRE QUESTIONS

Any proposed voir dire questions shall be filed by __________________________.

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APPROVED AS TO FORM AND CONTENT:

Plaintiff failed to participate in the preparation of this pleading. ___________________________ Plaintiff, In Proper Person

s/ Susanna C. Pineda_____ Attorney for Defendants

THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED ON THIS ____ DAY OF ____________, 2006.

_____________________________ Paul G. Rosenblatt United States District Judge

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Original submitted this 16th day of October, 2006, (via e-mail and hard copy) to: The Honorable Paul g. Rosenblatt United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Albert DeLeon 1714 South 2nd Street Phoenix, Arizona 85004 Plaintiff Pro Per

s/ C. Jordan Secretary to Susanna C. Pineda IDS04-0271/RSK:G03-03830 #979134

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