Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Firm Bar No. 14000 Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Christian Diaz, Plaintiff, v. Dora B. Schriro, et al., Defendants.

No: CV03-1498-PHX-SRB (MS) MOTION FOR COURT TO VIEW SMU II LIGHTING CONDITIONS

Defendants1, by and through undersigned counsel, hereby request that the Court travel to SMUII to view the lighting conditions of the cells at night before this matter goes to trial. The lighting of the individual SMU II cells at night is a key issue in this case. The best and most realistic way for Defendants to provide the Court with the evidence necessary to make a fair and accurate evaluation of the nighttime cell lighting conditions at SMU II is for the Court to view those conditions on its own. This Motion is further supported by the attached Memorandum of Points and Authorities.

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Dora Schriro and Carson McWilliams.
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RESPECTFULLY SUBMITTED this 7th day of November, 2005. TERRY GODDARD Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION AND FACTUAL BACKGROUND This is a Civil Rights Complaint against the Arizona Department of Corrections

("ADC").

Plaintiff claims the Defendants violated his rights pursuant to the Eighth

Amendment by illuminating his cell 24 hours a day. Plaintiff claims that the nighttime lighting in his individual cell is excessive and violates his Eighth Amendment right to be free of cruel and unusual punishment. [Dkt. 1] Plaintiff claims that he is deprived of the opportunity to sleep because the lights, although dimmed, are never turned off. [Dkt. 82] He also contends that the lights are so bright he can read books and write letters. [Id.] Plaintiff further alleges that the constant lighting causes eye strain, the need for eyeglasses, severe migraine headaches, sleep loss, irritability and, serious psychological trauma. [Dkt. 65, Dkt. 72, Dkt. 82] Defendants contend that the lights are significantly dimmed at night to allow the inmate to sleep with minimal disruption by officers who must conduct health, welfare and safety checks during the nighttime hours. [Dkt. 82] The dimming is also necessary to ensure the protection and safety of officers against inmates throwing items or targeting officers with homemade weapons. [Id.]

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Defendants assert that a Court viewing of an individual cell's nighttime lighting is both necessary and appropriate in this case. One of the key issues in regards to the lighting issue is the adequacy of the lighting. [Dkt. 65] Photographs, videos, testimony, drawings and diagrams, while helpful, simply cannot reproduce what the human eye sees. The consideration of other factors such as skylights, moonlight, cluster lighting in the main walkways, and the ability to see into an unlit room while standing in a lit area are all necessary to determine the adequacy of the nighttime lighting in the individual cells. Therefore, the only way for this Court to accurately assess the lighting conditions is with its own eyes. II. LEGAL ARGUMENT The general rule in Arizona is set forth in the Udall treatise on evidence in section 101. A view by the trier of fact, "is nothing more than real evidence writ large." M. Udall, Law of Evidence (Volume 1, Third Edition, § 101). When something relevant cannot be captured photographically, the judge has the discretion to view the place in order to resolve an issue in controversy or better understand the evidence. Id. While either party may request a view, adequate foundation must exist ensuring that the premises are in substantially the same condition as the time in question. Id. As noted above, this is exactly the type of case where a Court viewing is necessary because of the issue in this case regarding the adequacy of nighttime lighting in the SMU II cells. This case is not a case in which a photograph would be sufficient to give the Court a general understanding of the nighttime lighting. Adequacy of nighttime lighting cannot fairly be determined by any other method than by a Court view. Moreover, this is a case in which the nighttime lighting in SMU II cells is in substantially the same condition as it was on the date Plaintiff grieved in his Complaint. As such, a Court view constitutes the best available evidence.

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III.

CONCLUSION

For the reasons stated above, Defendants respectfully request that this Court take the opportunity to view the SMU II cell lighting conditions in person as it will allow the Court to place all evidence in context.

RESPECTFULLY SUBMITTED this 7th day of November, 2005. TERRY GODDARD Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants Copy mailed the same date to: Christian Diaz, #132778 ASPC - Eyman - SMU II P.O. Box 3400 Florence, AZ 85232 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS04-0087/RSK:G2004-20134
#933216

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