Free Notice of Filing Proposed Pretrial Order - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Cora Miles UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, Plaintiff, v. Cora Miles and Earl Scalet, Defendants. NO. CV-03-1819-PHX-JAT PROPOSED FINAL PRETRIAL ORDER

The following is the lodged Joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for January 8, 2007 at 4:00 p.m. A. COUNSEL FOR THE PARTIES Plaintiff: Carlos Arthur Powell, pro se c/o Amicus Curiae Association Foundation ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Telephone: (323) 569-6728 Facsimile: (323) 569-6728

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Defendants: Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 Jones, Skelton & Hochuli, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Facsimile: (602) 200-7811 Counsel for Defendant Cora Miles John R. Mayfield U.S. Attorney's Office 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 Counsel for Defendant Earl Scalet STATEMENT OF JURISDICTION 1. This court has jurisdiction regarding this inmate civil rights complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(A)(3). 2. As to Defendant Scalet, subject matter is also governed by Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). 3. Jurisdiction is not disputed.

STIPULATIONS AND UNCONTESTED FACTS AND LAW 1. The following facts are admitted by the parties and require no proof: a. Plaintiff was incarcerated at all times within his complaint at the Eloy Detention Center.

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b.

Plaintiff was placed into the Special Housing Unit (SHU) at the Eloy Detention Center in protective custody and to serve a disciplinary sentence.

The following facts, although not admitted, will not be contested at trial by evidence to the contrary: None. The following issues of law are uncontested and stipulated to by the parties: a. Plaintiff must exhaust all available administrative remedies prior to bringing suit.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Plaintiff previously threatened to "blow the whistle" on inmate Jose Garcia for selling his legal work to other inmates, unless Inmates Garcia and Navarro-Gonzales stopped selling Plaintiff's legal work. Plaintiff then advised the Law Librarian, Mr. Carron and Mr. Sipes, who were responsible for overseeing the Library, that Inmates Garcia and Navarro-Gonzales were selling his legal work. When he
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D.

CONTESTED ISSUES OF FACT AND LAW 1. The following are the issues of fact to be tried and decided: a. Whether the defendants retaliated against the Plaintiff for exercising any Constitutional right and whether that retaliatory conduct did not advance a legitimate penological goal.

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was told that no action could be taken without testimony from other inmates, Plaintiff then submitted two requests through two other inmates to Immigration Officials raising concerns that Inmate Garcia was being allowed to work "outside the gate" despite his immigration status. Defendant Scalet referred a Request to Staff Member form, he purportedly received from Inmate Navarro-Gonzales on August 11, 2003, that claimed Inmate Garcia was selling legal work, to Assistant Warden Garcia. Assistant Warden Garcia

subsequently tasked Defendant Miles with investigating that claim. Defendant Miles interviewed Inmate Navarro-Gonzales on August 14, 2003. Inmate Navarro-Gonzales denied even being able to read or write English and advised Defendant Miles that Plaintiff was assisting his case and had written the Request to Defendant Scalet. Defendant Miles then interviewed Inmate Garcia regarding the allegations, and Inmate Garcia inferred that Plaintiff had "snitched on him." Inmate Garcia then made prison staff aware of credible threats against Plaintiff's safety. Plaintiff was immediately placed in the Special Housing Unit on Administrative Detention as a protective custody status inmate. Concerned for Plaintiff's safety and the security of the institution, Defendant Miles recommended that Plaintiff be placed on Central Inmate Monitoring Status to ensure separation from the inmates involved. Because of Plaintiff's allegations that not only the named seperatees were after him, but that other inmates would do so at their urging, Plaintiff remained in the Special Housing Unit until his transfer to another prison.. Once Plaintiff was placed in protective custody, his belongings were moved and a large variety of legal papers pertaining to other inmates were discovered. Defendant Miles' investigation continued and yielded reasonable proof that Plaintiff was 1) selling legal work and 2) was in possession of inmate pre-sentence investigation reports, in violation of Bureau of Prisons and facility disciplinary policies. After hearings by the
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Unit Disciplinary Committee, Plaintiff's detention status was changed at certain times from administrative to disciplinary. b. Whether there were legitimate correctional goals to be obtained by the actions taken by Defendants. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: The decision to place Plaintiff on protective custody legitimately served the goals of protecting Plaintiff from harm as well as further enhancing the general security of the facility. Likewise, the disciplinary sanctions

imposed on Plaintiff served legitimate goals of protecting the safety of other inmates. c. Whether any conduct complained of by Plaintiff caused the Plaintiff a specific injury and whether there is a causal connection between the Defendants' actions and the harm allegedly suffered. Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: Plaintiff suffered no specific

injuries as a result of being moved to the Special Housing Unit, and in fact, such movement served to protect Plaintiff from potential harm in retribution from, or on behalf of, Inmate Garcia or other inmates. d. Whether Defendant Miles engaged in retaliation against the Plaintiff for filing lawsuits and grievances. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Plaintiff had no interaction with Defendant Miles prior to August 14, 2003 and did not mention Defendant Miles in any of his
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grievances or lawsuits submitted before that date. Defendant Miles thus had no motive to retaliate against Plaintiff. Defendant Miles actions were taken to protect Plaintiff from a credible threat of assault made known by Inmate Garcia and to protect the safety and security of other inmates and the facility. e. Whether the Plaintiff was continued to be held in segregation based upon a violation of institutional rules. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Plaintiff continued to be held in the Special Housing Unit based on findings that he received money from the families of other inmates to assist with their legal work and had copies of other inmates Presentence Investigation Reports in his possession. Plaintiff subsequently also abused his phone privileges. f. Whether the Plaintiff was placed or kept in the Special Housing Unit because there was a threat to his safety or institutional safety. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Plaintiff was both placed and kept in the Special Housing Unit because there was a credible threat to his safety and institutional security. This threat was independently confirmed after Plaintiff was placed in segregation. g. Whether the Plaintiff was a rule violator and compromised the safety and security of the institution, which served as the basis for his placement into segregation. Plaintiff contends: Plaintiff did not provide.

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Defendant Miles contends: Plaintiff's requests to Defendant Scalet led to the revocation Inmate Garcia's "outside gate" work privileges and lead to the investigation of inmates charging for legal work. Plaintiff was placed in segregation in response to credible threats made by Inmate Garcia. However, subsequent investigation also

established that Plaintiff received money from the family of other inmates for legal work and also possessed copies of other inmates Presentence Investigation Reports in

contravention of Eloy Detention Center and Bureau of Prisons regulations. h. Whether the substantial and motivating factor for placing Plaintiff in segregation was retaliation. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Plaintiff's placement in segregation was

motivated solely by concerns for Plaintiff's welfare and the safety and security of other inmates and the facility. Defendants Scalet and Miles contend: They did not engage in any

conduct that infringed upon any of Powell's established Constitutional rights. They did not file a false report on Powell. They did not fail to respond to any of Powell's

complaints. They did not physically harm Powell or fail to take any actions that would implicate a recognized and established Constitutional Right. All Scalet did was process two "cop outs" regarding two other INS detainees. The Plaintiff did not suffer any actual injury. Further, Powell has failed to establish that Scalet or Miles knew that Powell faced a substantial risk of serious harm or that Scalet or Miles was deliberately indifferent to such a risk. i. Whether Plaintiff properly exhausted his administrative remedies regarding being placed in segregation.

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Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Plaintiff did not properly exhaust administrative remedies regarding his placement in segregation nor regarding his Separation Order. j. Whether any correctional officer made a statement intending to incite inmates to attack Plaintiff, and whether the alleged conduct was the proximate cause of the failure to protect claim. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Neither Defendant Miles nor any other CCA employee ever made a statement intending to incite inmates to attack Plaintiff. k. Whether any statement was made in front of other inmates calling Plaintiff a snitch with a wanton disregard for the Plaintiff's safety. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Neither Defendant Miles nor any other CCA employee ever called Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead the inmates to the reasonable, and correct, inference that Plaintiff had brought Inmate Garcia's "outside gate" privileges and sale of legal work to the attention of prison authorities, and necessitated Plaintiff's movement to protective custody. Defendant Scalet contends: He did not ever call Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead the inmates to the reasonable, and correct, inference that Plaintiff had brought Inmate

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Garcia's "outside gate" privileges and sale of legal work to the attention of Scalet and prison authorities. protective custody. l. Whether Plaintiff can establish that he was labeled a snitch in retaliation for filing lawsuits or grievances. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Neither Defendant Miles nor any other CCA employee ever called Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead them to the reasonable, and correct, inference that Plaintiff had brought Inmate Garcia's "outside gate" privileges and sale of legal work to the attention of prison authorities, and necessitated Plaintiff's movement to protective custody. Defendant Scalet contends: He did not ever call Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead the inmates to the reasonable, and correct, inference that Plaintiff had brought Inmate Garcia's "outside gate" privileges and sale of legal work to the attention of Scalet and prison authorities. protective custody. m. Whether there is any evidence Plaintiff was labeled a snitch for the purpose of causing harm. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Neither Defendant Miles nor any other CCA employee ever called Plaintiff a "snitch." Assuming arguendo that Plaintiff was labeled a Scalet was not involved in the decision to place the Plaintiff in Scalet was not involved in the decision to place the Plaintiff in

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snitch at some point after August 14, 2003, Plaintiff's custody classification of protected him from any harm, and any such injuries were de minimis. Defendant Scalet contends: He did not ever call Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead the inmates to the reasonable, and correct, inference that Plaintiff had brought Inmate Garcia's "outside gate" privileges and sale of legal work to the attention of Scalet and prison authorities. Scalet was not involved in the decision to place the Plaintiff in

protective custody. In any event, Plaintiff suffered no harm or injury. n. Whether Plaintiff's own conduct prior to and after August 14, 2003 reasonably lead other inmates to conclude that he was a snitch. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Neither Defendant Miles nor any other CCA employee ever called Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead them to the reasonable, and correct, inference that Plaintiff had brought Inmate Garcia's "outside gate" privileges and sale of legal work to prison authorities, and necessitated Plaintiff's movement to protective custody. Defendant Scalet contends: He did not ever call Plaintiff a "snitch." Plaintiff's prior confrontation of Inmates Garcia and Navarro-Gonzales, however, lead the inmates to the reasonable, and correct, inference that Plaintiff had brought Inmate Garcia's "outside gate" privileges and sale of legal work to the attention of Scalet and prison authorities. protective custody. Scalet was not involved in the decision to place the Plaintiff in

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o.

Whether there is any evidence defendants were actually aware of facts from which an inference could be drawn that a substantial risk of harm to the Plaintiff existed, that the Defendants actually drew the inference but nevertheless disregarded the risk to the Plaintiff's health or safety, thereby establishing deliberate indifference.

Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Prior to interviewing Inmates Garcia and Navarro-Gonzales on August 14, 2003, Defendant Miles was unaware that Plaintiff had previously confronted them regarding their sale of legal work and threatened to have Inmate Ibarra-Garcia's "outside gate" privileges revoked. Defendant Miles was thus unable to foresee that her interview techniques would lead Inmate Garcia to infer that Plaintiff had in fact reported him to prison authorities. Once Defendant Miles became aware that Inmate Garcia posed a credible threat to Plaintiff, Plaintiff was moved to administrative segregation for ensure that his safety was protected. Defendant Scalet contends: Defendant Scalet did not engage in any conduct that infringed upon any of Powell's established Constitutional rights. Scalet did not file a false report on Powell. Scalet did not fail to respond to any of Powell's complaints. Scalet did not physically harm Powell or take or fail to take any actions that would implicate a recognized and established Constitutional right. All Scalet did was process two "cop outs" regarding two other INS detainees. The Plaintiff did not suffer any actual injury. Further, Powell has failed to establish that Scalet knew Powell faced a substantial risk of serious harm or that Scalet was deliberately indifferent to such a risk.
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At all times relevant, Defendant Scalet was unaware of the fact that Plaintiff had, in fact, prepared both of the "cop outs" for the other INS detainees. p. Whether any conduct involved by Defendants was driven by an evil motive or intent. Plaintiff contends: Plaintiff did not provide. Defendant Miles contends: Defendant Miles' actions were in compliance with CCA/Eloy Detention Center and Bureau of Prisons policies and procedures solely for the purpose of protecting inmate safety and facility security. Defendant Scalet contends: Defendant Scalet did not engage in any conduct that infringed upon any of Powell's established Constitutional rights. Scalet did not file a false report on Powell. Scalet did not fail to respond to any of Powell's complaints. Scalet did not physically harm Powell or take or fail to take any actions that would implicate a recognized and established Constitutional right. All Scalet did was process two "cop outs" regarding two other INS detainees. The Plaintiff did not suffer any actual injury. Further, Powell has failed to establish that Scalet knew that Powell faced a substantial risk of serious harm or that Scalet was deliberately indifferent to such a risk. q. Whether the Plaintiff sustained damages and the extent of any damage sustained. Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: Plaintiff sustained no compensable

damages due to being moved to the Special Housing Unit. Assuming arguendo that Plaintiff had been labeled a snitch, Plaintiff was never placed in any physical danger since his movement to the Special Housing unit.

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r.

Whether Plaintiff attempted to reasonably mitigate any damages.

Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: Any deterioration in Plaintiff's

physical condition as a result of being housing in the Special Housing Unit are a result Plaintiff's refusal to participate in scheduled recreation. s. Whether Defendant Scalet violated an established Constitutional right of the Plaintiff. Plaintiff contends: Plaintiff did not provide. Defendant Scalet contends: He is clearly entitled to the defense of qualified immunity in this action. Defendant Scalet did not engage in any conduct that infringed upon any of Powell's established Constitutional rights. Scalet did not file a false report on Powell. Scaled did not fail to respond to any of Powell's complaints. Scalet did not physically harm Powell or take or fail to take any actions that would implicate a recognized and established Constitutional right. All Scalet did was process two "cop outs" regarding two other INS detainees. The Plaintiff did not suffer any actual injury. Further, Powell has failed to establish that Scalet knew Powell faced a substantial risk of serious harm or that Scalet was deliberately indifferent to such a risk. 2. The following are the issues of law to be tried and determined: a. Whether Plaintiff's suit is barred by the Prison Litigation Reform Act. Plaintiff contends: Plaintiff did not provide.
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Defendants Miles and Scalet contend: Plaintiff failed to properly exhaust his administrative remedies pursuant to the CCA/Eloy Detention Center Inmate/Resident Grievance policy. Failure to properly exhaust administrative remedies bars his claims. 42 U.S.C. § 1997e(a), Woodford v. Ngo, 126 S.Ct. 2378, 2386 (2006). b. Whether Plaintiff can establish a retaliation claim for exercising a Constitutional right and that the conduct involved by the Defendants did not advance a legitimate penological goal. Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: To the extent that Plaintiff fails to demonstrate each element of a retaliation claim by a preponderance of the evidence, Plaintiff's claims are barred. c. Whether Plaintiff can establish a proximate causal connection between the specific conduct of a particular defendant and any claimed injury or Constitutional deprivation. Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: To the extent that Plaintiff fails to demonstrate that a proximate causal connection between the conduct of any particular defendant and any claimed injury or Constitutional deprivation, Plaintiff's claims are barred. d. Whether Plaintiff can establish deliberate indifference on the part of any of the Defendants Plaintiff contends: Plaintiff did not provide.
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Defendants Miles and Scalet contend: To the extent that Plaintiff fails to demonstrate that Defendants acted with deliberate indifference, Plaintiff's claims are barred. e. Whether the actions taken by Defendants advanced legitimate penological interests. Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: To the extent that Plaintiff fails to demonstrate that Defendants' actions failed to advance legitimate penological interests, Plaintiff's claims are barred. f. Whether any damages may be sustained.

Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: Plaintiff cannot establish by a

preponderance of the evidence that he sustained any physical injuries. To the extent that Plaintiff suffered a deterioration in his medical condition, that deterioration is due to Plaintiff's choice to refuse opportunities for scheduled recreation. Additionally, Plaintiff has failed to disclose any expert testimony that he did in fact suffer any physical injuries as a result of the alleged incident(s). g. Whether any emotional damages may be sustained.

Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: Plaintiff is prohibited from being awarded a claim for emotional damages in the absence of sustaining any physical injuries. Additionally, Plaintiff has failed to disclose any expert testimony that he did in fact suffer any emotional injuries as a result of the alleged incident(s). h. Whether punitive damages may be sustained.

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1

Plaintiff contends: Plaintiff did not provide. Defendants Miles and Scalet contend: Plaintiff cannot establish that

defendant's conduct was a product of evil motive, was malicious or sadistic, or was in reckless disregard of plaintiff's rights. Thus, under Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993), punitive damages are barred. E. LIST OF WITNESSES 1. Plaintiff's Witnesses: a. Witnesses who shall be called at trial: (1) (2) (3) (4) Each any every individual who signed an affidavit. Secretary that gave U.S. marshals the information. U.S. Marshal who approved at Eloy INS court to serve Scalet Obi Okoronkwo 34 Buckingham Palace Road #253 Belgravia London Swiw ORH Mr. Salvador1

(5)

Mr. Salvador is expected to testify in conformity with his affidavit, previously submitted in this case. (6) Paul Prymich

Paul Prymich is expected to testify in conformity with his affidavit, previously submitted in this case. (7) Mr. Garcia

Mr. Garcia is expected to testify in conformity with his affidavit, previously Plaintiff indicates that "the list of witnesses and addresses will be delayed," and lists Mr. Salvador, Paul Prymich, Mr. Garcia and Mr. Camacho David Alba as a partial list of witnesses. Defendant Miles does not consent to any further supplementation of this list.
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submitted in this case.2 (8) previously submitted in this case.3 b. Witnesses who may be called at trial: None. c. Witnesses who are unlikely to be called at trial: None. 2. Defendant Miles' Witnesses: a. Witnesses who shall be called at trial: (1) Earl R. Scalet Address information previously filed with the Court under seal. Camacho David Alba

Camacho David Alba is expected to testify in conformity with his affidavit,

Defendant Scalet will be called as a fact witness to testify regarding his personal involvement with the requests submitted by Plaintiff on behalf of Inmates Benitez and Navarro-Gonzales. (2) Cora H. Miles Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Defendant Miles will be called as a fact witness to testify regarding her knowledge of Plaintiff's grievances and requests to staff members prior to August 14,

Defendant Miles objects to this description as it does not specify which Mr. Garcia will testify, nor is Defendant Miles aware of any Mr. Garcia preparing an affidavit in this case. 3 Defendant Miles objects to this description is incomplete and is unaware of any affidavit in this case being signed by this witness.
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2003, her investigation of inmates charging for legal work, the decision to place Plaintiff in protective custody as well as Plaintiff's subsequent disciplinary reports. Ms. Miles will also testify about her motives concerning the investigation and placement of the Plaintiff into protective custody. (3) Frank Garcia Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Assistant Warden Garcia will be called as a fact witness to testify regarding the investigation of inmates charging for legal work, the decision to place Plaintiff in protective custody, CCA and BOP policies and procedures, as well as Plaintiff's subsequent disciplinary reports. Assistant Warden Garcia may also testify as a fact

witness regarding his communications with Defendants Miles and Scalet, the revocation of Inmate Garcia's "outside gate" work pass, and to provide foundational evidence for institutional records. Assistant Warden Garcia will also testify to observations of

Plaintiff's physical condition and request for medical care while housed in protective custody. b. Witnesses who may be called at trial: (1) Thomas Long Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Warden Long may be called to testify as a fact witness about CCA and BOP policies and procedures regarding Inmate Discipline, the Inmate Grievance Procedure, Segregation and Separation as well as how Plaintiff actions necessitated that he be housed in Protective Custody. Warden Long may also be expected to testify as to the denial of Plaintiff's grievance appeals and Unit Disciplinary Committee hearings. As Defendant Miles Supervisor, Warden Long may also testify regarding Defendant Miles proficiency
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rating and adherence to CCA policies. Warden Long may also be called to provide foundational evidence for institutional records. (2) Bruno Stolc Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Warden Stolc may be called to testify as a fact witness about CCA policies and procedures regarding Inmate Discipline, the Inmate Grievance Procedure, Segregation and Separation and the application of those policies to the facts of the case. As Defendant Miles current Supervisor, Warden Stolc may testify regarding Defendant Miles' proficiency rating and adherence to CCA policies. Warden Stolc may also be called to provide foundational evidence for institutional records. (3) Joe Nasal Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Mr. Nasal was the Movement Coordinator at the Eloy Detention Center and may be called to testify regarding the revocation of Inmate Garcia's "outside gate" work pass, the timing thereof, and generally regarding restrictions placed on Eloy Detention Center Inmates and Detainees who were subject to Immigration Detainers during the period at issue. (4) Antonio C. Sabal, M.D. Red Rock Correctional Center 1750 E. Arica Road Eloy, Arizona 85231

Dr. Sabal may be called to testify, based on Plaintiff's medical record and his provision of medical care to Plaintiff, that Plaintiff did not suffer any physical injuries as a result of being housed in the Special Housing Unit at Eloy Detention Center. (5) Melanie VanNess Eloy Detention Center
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1705 E. Hanna Road Eloy, Arizona 85231 Ms. VanNess is the Grievance Coordinator at Eloy Detention Center and may be called to testify as a fact witness regarding the requirements to exhaust administrative remedies at Eloy Detention Center and the fact that Plaintiff failed to do so regarding his retaliation claims. (6) Lois Flynn 14711 W. Taurus Eloy, Arizona 85231

Ms. Flynn was the Grievance Coordinator at Eloy Detention Center and may be called to testify as a fact witness regarding the requirements to exhaust administrative remedies at Eloy Detention Center and the fact that Plaintiff failed to do so regarding his retaliation claims. (7) Ernest Salazar 204 E. 9th Street Eloy, Arizona 85231

Mr. Salazar was the Case Management Coordinator at Eloy Detention Center and may be called to testify as a fact witness regarding Plaintiff's receipt of his Separation Order, the reasons therefore. (8) Gregory Poelhman Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Mr. Poelhman investigated the incident reports served upon Mr. Powell and may be called testify as a fact witness consistent with those reports and Plaintiff' conduct which lead to Plaintiff's change in status from administrative to disciplinary segregation. (9) Jim Kushner Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

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Mr. Kushner was Plaintiff's Unit Manager at the Eloy Detention Center and may be called to testify as a fact witness regarding Plaintiff's requests to staff members and Plaintiff's disciplinary reports, investigations, findings by the Unit Disciplinary Committee, and sanctions. Mr. Kushner may also testify regarding Plaintiff's conduct at Eloy Detention Center, including Plaintiff's refusal of recreation, consistent with Plaintiff's Program Review Reports. (10) Todd Mohn Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Mr. Mohn was the Disciplinary Hearing Officer at the Eloy Detention Center and may be called to testify as a fact witness regarding Plaintiff's disciplinary reports, investigations, and findings by the Unit Disciplinary Committee and sanctions resulting there from. (11) Stella Ponce Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Ms. Ponce was the Chief of Security at the Eloy Detention Center and may be called to testify as a fact witness regarding Plaintiff's placement in the Special Housing Unit, Plaintiff's request to waive protective custody, and the threats against Plaintiff's safety. (12) Jerry Sipes P.O. Box 2448 Arizona City, Arizona 85223

Mr. Sipes was the Principal of the Education Department at the Eloy Detention Center, and in that role, oversaw the operations of the Law Library. Mr. Sipes may be called to testify that prior to August 14, 2003, Plaintiff advised him that Inmates Garcia and Navarro-Gonzales were selling legal work to other inmates.

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(13)

Leo Eugene Carron Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Mr. Carron was the Law Librarian at the Eloy Detention Center and may be called to testify regarding the operation of the Law Library, his attendant duties, and that Plaintiff complained to him, prior to August 14, 2003, that Inmates Garcia and NavarroGonzales were selling legal work to other inmates. (14) Adela Gonzalez 414 W. 13th Street Eloy, Arizona 85231

Ms. A. Gonzalez was the assistant culinary supervisor at the Eloy Detention Center and may be called as a fact witness to testify that after August 14, 2003, she was approached by two kitchen employees and advised that certain inmates desired to place a "hit" on Plaintiff. c. Witnesses who are unlikely to be called at trial: (1) Serafino Telmantes Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Officer Telamantes, if called, is expected to testify regarding his personal knowledge of Plaintiff's security during his INS Deportation hearings, in conformity with the Affidavit he prepared in this case. (2) Timothy Cason Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Officer Cason, if called, is expected to testify regarding his personal knowledge of Plaintiff's security during his INS Deportation hearings, in conformity with the Affidavit he prepared in this case.
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3.

Defendant Scalet's Witnesses: a. Witnesses who shall be called at trial: (1) Earl R. Scalet

Defendant Scalet will be called to testify regarding his involvement in this matter and to rebut the allegations made against him by the Plaintiff. (2) ICE AOIC Crowther Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

AOIC Crowther will be called to testify regarding his involvement in this matter and to rebut the allegations made against Defendant Scalet by the Plaintiff. (3) Deportation Officer Priscilla Medina Eloy Detention Center 1705 E. Hanna Road Eloy, Arizona 85231

Deportation Officer Priscilla Medina was present during a conversation with Scalet and Powell when Powell asked Scalet if Scalet had anything to do with Powell being placed in the Special Housing Unit. Scalet informed Powell that he did not. b. Witnesses who may be called at trial: Any witnesses previously listed by Defendant Miles c. Witnesses who are unlikely to be called at trial: Not applicable. F. LIST OF EXHIBITS 1. The following exhibits are admissible in evidence and may be marked in evidence by the clerk:

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a.

Plaintiff's Exhibits: Plaintiff did not provide any exhibits.

b.

Defendants Miles' and Scalet's Exhibits: (1) Inmate Request to Staff Form from Erik B. Salvador to Immigration Judge/Board Member, dated August 5, 2003. ICE Memorandum from Agent Scalet to Erik BenitiezSalvador, dated August 7, 2003 Request to Staff Member from Ismael NavarroGonzales to E. Scalet, dated August 11, 2003. BOP Program Review Report re: Carlos Powell, dated February 11, 2004. BOP Security/Designation Data re: Carlos Powell, dated February 4, 2004. BOP Inmate Discipline Data, Chronological Disciplinary Record re: Carolos Powell, dated February 4, 2004. BOP Incident Report No. 1135443 re: Carlos Powell, dated January 5, 2004. BOP Incident Report No. 1172755 re: Carlos Powell, dated December 16, 2003. BOP Incident Report No. 1135445 re: Carlos Powell, dated August 20, 2003. BOP Incident Report No. 1135443 re: Carlos Powell, dated August 20, 2003. BOP Notification of Central Inmate Monitoring re: Carlos Powell, dated September 9, 2003. CCA Memorandum from C.H. Miles to E. Salazar re: Recommendation for CIMS Separation, dated September 2, 2003. CCA Memorandum from Jim Kushner to Warden Thomas A. Long re: Carlos Powell, dated September 12, 2003.
24

(2) (3) (4) (5) (6)

(7) (8) (9) (10) (11) (12)

(13)

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(14)

Detainee Request Form from Carlos Powell to Ms. Ponce, dated September 24, 2003, with response dated September 29, 2003. BOP CIM Clearance and Separatee Data re: Carlos Powell, dated February 4, 2004. Inmate Request to Staff dated February 2, 2004 with response dated February 5, 2004. Request Form dated September 26, 2003 with response dated September 26, 2003. Handwritten memorandum from Carlos Powell to Kitchen Staff, dated August 18, 2003 (Exhibit No. 1 to Plaintiff's deposition). CCA/Eloy Detention Center Grievance Informal Resolution Form submitted by Carlos Powell, dated October 20, 2003 Memorandum from Thomas Long to Carlos Powell re: Grievance Investigation Response 03/44, dated November 5, 2003. CCA/Eloy Detention Center Grievance Informal Resolution Form submitted by Carlos Powell, dated November 13, 2003. Memorandum from Lois Flynn to Carlos Powell re: Inmate Grievance, #03/47, dated December 5, 2003. Memorandum from Thomas Long to Carlos Powell re: Inmate Grievance, #03/48, dated December 18, 2003. Memorandum from T.A. Long to Carlos Powell re: Inmate Grievance, UDC finding, dated January 13, 2004. Memorandum from T.A. Long to Carlos Powell re: UDC Appeal 04/02, dated January 13, 2004. B.O.P. Health Record for Carlos Powell as of February 2, 2004. Transcript of Hearing In re: Raul Ernesto Alonso, before the U.S. Department of Justice, Executive Office of Immigration Review, Immigration Court sitting in Eloy, Arizona on December 11, 2003.
25

(15) (16) (17) (18)

(19)

(20)

(21)

(22) (23) (24)

(25) (26) (27)

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Transcript of Hearing In re: Raul Ernesto Alonso, before the U.S. Department of Justice, Executive Office of Immigration Review, Immigration Court sitting in Eloy, Arizona on January 15, 2004. Transcript of Hearing In re: Raul Ernesto Alonso, before the U.S. Department of Justice, Executive Office of Immigration Review, Immigration Court sitting in Eloy, Arizona on March 4, 2004. Transcript of Hearing In re: Raul Ernesto Alonso, before the U.S. Department of Justice, Executive Office of Immigration Review, Immigration Court sitting in Eloy, Arizona on May 13, 2004. Oral Decision and Order of the Immigration Court In re: Raul Ernesto Alonso, dated May 13, 2004. Timeline of events leading up to Plaintiff's placement in the Special Housing Unit. BOP Program Statement 5270.07, Inmate Discipline and Special Housing Units, dated December 29, 1987, and including Change Notices 1 through 13, effective December 18, 2002. BOP Program Statement 5180.04, Central Inmate Monitoring System, dated August 16, 1996. CCA Eloy Detention Center Admission and Orientation Handbook, July 2003 ­ July 2004. CCA/Eloy Detention Center Post Orders for BOP/INS Special Housing Officer. CCA/Eloy Detention Center Policy No. 10-100 re: Administrative Detention and Disciplinary Segregation, effective October 9, 2001. CCA/Eloy Detention Center Policy No. 14-5 re: Inmate/Resident Grievance Procedures, effective January 1, 2003. Case file from Powell v. Spain, et al., in the U.S. District Court for the District of Idaho, Case No. 03-cv-245-BLW.

(29)

(30) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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(31) (32) (33)

(34) (35) (36) (37)

(38)

(39)

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(40)

Case file from United States v. Powell, in the U.S. District Court for the District of Idaho, Case No. 02-cr-54-EJL.

2.

As to the following exhibits, the parties have reached the following stipulations: Not applicable.

3.

As to the following exhibits, the party against whom the exhibit is to be offered objects to the admission of the exhibit and offer the objection stated below: Not applicable.

G.

DEPOSITIONS TO BE OFFERED Defendant Miles offers the Deposition of Carlos Arthur Powell, May 21,

2004 page 1, line 01 through page 78, line 20. Plaintiff did not provide any objections or counter-designations. Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order that any deposition not listed as provided herein will not be allowed, absent good cause. H. MOTIONS IN LIMINE The following Motions in Limine have been filed as separate pleadings and will be responded to in accordance with the instructions contained in the Order Setting Final Pretrial Conference:

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1.

Defendant Cora Miles' Motion In Limine No. 1 to Exclude Written Inmate Hearsay Statements;

2.

Defendant Cora Miles' Motion In Limine No. 2. to Exclude and Exhibits or Witnesses Not Disclosed In Accordance with this Court's Order Setting Final Pretrial Conference; and,

3.

Defendant Cora Miles' Motion In Limine No. 3 to Preclude Plaintiff from Offering Any Evidence at Trial About Any Defendants or Claims Previously Dismissed by the Court.

I.

LIST OF PENDING MOTIONS The following motions, remain pending: None.

J.

ESTIMATED LENGTH OF TRIAL 3 days

K.

JURY DEMAND A jury trial has been requested. The parties stipulate that the request was

timely and properly made. L. JOINT PROPOSED JURY INSTRUCTIONS, JOINT PROPOSED VOIR DIRE QUESTIONS, AND PROPOSED FORMS OF VERDICT The separately filed joint Proposed Jury Instructions, joint Proposed Voir Dire Questions, and Proposed Forms of Verdict are incorporated by reference into this joint Proposed Final Pretrial Order. /// ///

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M.

CERTIFICATION The undersigned counsel for each of the parties in this action do hereby

certify and acknowledge the following: 1. 2. 3. All discovery has been completed. The identity of each witness has been disclosed to opposing counsel. Each exhibit listed herein: (1) is in existence; (2) is numbered; and, (3) has been disclosed to opposing counsel. 4. The parties have complied in all respects with the mandates of the Court's Rule 16 Scheduling Order and Order Setting Final Pretrial Conference. 5. The parties are exempt the disclosure obligation pursuant to FED. R. CIV. P. 26 (a)(1)(E)(iii). 6. The parties acknowledge that once the joint Proposed Final Pretrial Order has been signed and lodged by the parties, no amendments to this Order can be made without leave of Court.

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APPROVED AS TO FORM AND CONTENT: By: s/ Carlos Arthur Powell Carlos Arthur Powell c/o Amicus Curiae Association Foundation ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Pro se Plaintiff By: s/ Timothy J. Bojanowski

Daniel P. Struck Timothy J. Bojanowski Jones, Skelton & Hochuli, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorney for Defendant Cora Miles By: s/ John R. Mayfield

John R. Mayfield U.S. Attorney's Office 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Attorney for Defendant Earl Scalet

Based on the foregoing, IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the parties is hereby APPROVED and ADOPTED as the official Pretrial Order of this Court.

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