Free Order - District Court of Arizona - Arizona

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Isadore Baptisto,

) ) Plaintiff, ) ) vs. ) ) ) Charles Ryan, et al., ) ) Defendant. ) ) ) ) _________________________________) Christian Diaz, Plaintiff, vs. Dora Schriro, et al. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Document 106

No. CV-03-1393-PHX-SRB ORDER

No. CV-03-1498-PHX-SRB

20 Defendants. 21 22 23 24 25 26 Terry L. Stewart, et al. 27 Defendants. 28
Case 2:03-cv-01498-SRB

T.C. Mullins, Plaintiff, vs.

No. CV-02-1056-PHX-SRB

Filed 03/28/2006

Page 1 of 59

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Plaintiffs are inmates in the custody of the Arizona Department of Corrections ("ADOC") and are housed in Special Management Unit 2 ("SMU-2"), a maximum security prison in Florence, Arizona reserved for, among others, death row inmates, inmates with the highest security classifications, and validated members of Security Threat Groups ("STGs"), also known as prison gangs. Plaintiffs, all of whom have represented themselves throughout this litigation, separately filed civil rights complaints pursuant to 42 U.S.C. § 1983, alleging that the conditions of their confinement in SMU-2 violate the Eighth Amendment's prohibition on cruel and unusual punishment. At the summary judgment stage, the Court dismissed certain aspects of each of the three complaints, and allowed others to proceed to trial. The Court concluded that as to two conditions of confinement, material issues of fact remained with respect to all three complaints: the adequacy of the in-cell lighting and the sufficiency of the outdoor exercise and exposure to fresh air and sunlight. Plaintiff Isadore Baptisto was permitted to proceed to trial with respect to a third condition of his confinement: the sufficiency of his diet. Because of the similarity of the three cases, the Court tried them together. Beginning on February 22, 2005, the Court conducted a three-day bench trial. Having considered the evidence received at the trial, together with the arguments of counsel, the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT The Plaintiffs 1. Plaintiffs are inmates in the custody of the ADOC. They are housed in SMU-2, an Arizona State Prison located in Florence, Arizona. SMU-2 is considered a Supermax facility.1
1

The National Institute of Corrections defines a Supermax prison as, "[a] freestanding facility, or a distinct unit within a freestanding facility, that provides for the management and secure control of inmates who have been officially designated as exhibiting violent or seriously disruptive behavior while incarcerated. Such inmates have been determined to be a threat to safety and security in traditional high-security facilities and their behavior can be controlled only by separation, restricted movement, and limited access to staff and other -2Document 106 Filed 03/28/2006 Page 2 of 59

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2.

Plaintiffs are confined in SMU-2 because of their validation as members of STGs. Plaintiff T.C. Alyne Mullins was validated as a member of the Aryan Brotherhood in 1999; Plaintiff Christian Diaz was validated as a member of Sureños in 2001; and Baptisto was validated as a member of the Warrior Society in 2002. All three prison gangs meet the ADOC's definition of an STG. Plaintiffs were transferred to SMU-2 within several months of their validation.

3.

Plaintiffs filed actions pursuant to 42 U.S.C. § 1983 alleging that the conditions of their confinement in SMU-2 constitute cruel and unusual punishment. In particular, Plaintiffs allege that their cells are illuminated for 24 hours per day, preventing sleep and causing psychological trauma. Plaintiffs also allege that the three hours of "outdoor exercise" that they are allotted each week is insufficient, both because of the minimal number of hours and because the "exercise" is not truly "outdoors," but occurs in what they allege to be essentially a cell with a mesh ceiling.2 In addition, Baptisto alleges that the prison diet has caused him to become malnourished, resulting in the loss of seventy-five pounds.

Life in SMU-2 for STG-Validated Inmates 4. While only three conditions of confinement were at issue in this trial, an overview of other conditions in SMU-2 for validated STG members is useful for background purposes. 5. Inmates in SMU-2, of which there an average of 650 at any moment,3 are confined in isolation. Each inmate has his own cell and while an inmate may communicate with

inmates." Austin v. Wilkinson, 189 F. Supp.2d 719, 722 n.2 (N.D. Ohio 2002) (quoting Chase Riveland, Supermax Prisons: Overview and General Considerations 3 (1999)). On December 12, 2005, the ADOC doubled the number of weekly hours that inmates are permitted to spend in their recreation areas. At present, it is undisputed that SMU-2 inmates may spend three two-hour sessions per week in their recreation areas, for a total of six hours.
3 2

SMU-2's maximum capacity appears to be 720 inmates. -3Document 106 Filed 03/28/2006 Page 3 of 59

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the inmates in adjoining cells, they are allowed no face-to-face communication, nor can they pass notes or share legal documents. Each cell contains a sink, a toilet, a bed, and a writing surface with a stool bolted to the floor. STG-validated SMU-2 inmates may have visitors, but only one visit per week for a maximum of two hours. During that time, inmates are separated from their visitors by glass, so no touching can occur. Inmates are allowed one five-minute phone call per week and are ineligible for compassionate escorted leave. They can also send and receive mail. Inmates may speak to the prison staff several times per day, and they have access to counselors, with whom they may speak face-to-face five times per week. Inmates are ineligible for out-of-cell work, vocational, or educational programs, but may do in-cell programs. A library containing legal materials is available to inmates, who may check out materials several times per week. STG-validated SMU-2 inmates cannot purchase food from the commissary, but may purchase other goods such as hygiene-related items, vitamins, televisions, walkmen, and clothes. Inmates are allowed three showers per week, which coincide with the three out-of-cell exercise sessions to which they are entitled each week. Before an inmate is removed from his cell for any reason - including transport to the recreation area - an officer performs a full body cavity search that requires the removal of all clothing, applies "restraint gear," then escorts the inmate to the destination by walking behind him. The Origins of the Current STG Policy 13. At the time these actions were initiated, an inmate who was validated as an STG member was transferred to SMU-2 indefinitely. The only way that an inmate could secure his transfer out of SMU-2 (apart from completing his prison term) was to

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renounce his membership in the prison gang and successfully complete a debriefing process.4 The policy of transferring validated STG members to SMU-2 originated in 1997 when Terry L. Stewart was the ADOC Director. That policy was embodied in ADOC Departmental Order ("D.O.") 806. In connection with a previous case, Stewart had occasion to give a deposition concerning, among other issues, his motivation in implementing the STG policy. (Pls.' Ex. 103 ("Stewart Depo.").) His views on that subject are somewhat

contradictory. Initially, Stewart agreed with the statement that "one of the goals of the placement in SMU2 after STG validation was to deter others who might be [in the] system from joining or associating with gang members." (Stewart Depo. at 9.) Stewart also agreed that the policy was implemented "to demonstrate . . . the severe sanctions that follow from an STG validation." (Stewart Depo. at 9.) However, later in the deposition, Stewart appeared to distance himself from his prior statements that the conditions in SMU-2 constitute sanctions. According to Stewart, a "sanction," which stems from a disciplinary infraction, can lead to a loss of privileges, such as appliances or good time credit. (Stewart Depo. at 14-15.) But when a particular inmate becomes enough of a disciplinary problem, his classification can increase and he may be placed in a facility with more restrictive conditions. (Stewart Depo. at 14-16.) The conditions in the more restrictive facility, in Stewart's view, are not sanctions, even though those conditions may, in some circumstances, closely parallel the conditions that a prisoner may be placed in when he is being

With regard to debriefing, D.O. 806 states that "[t]he purpose of debriefing is not to obtain incriminating evidence information or evidence against the member. The primary objective is to learn enough about the member and the STG to: [c]onvince the Department that the inmate has withdrawn from the STG[;] Provide additional information regarding the STG's structure, activity and membership that would adversely impact the STG and assist in management of the STG population[;] [and] Provide sufficient information to determine if the inmate may require protection from other STG members or suspects." -5Document 106 Filed 03/28/2006 Page 5 of 59

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sanctioned as a result of a disciplinary infraction. (Stewart Depo. at 16.) Thus, "[y]ou can be sanctioned and not have your classification changed, . . . [and] [y]ou can have your classification changed and not be sanctioned." (Stewart Depo. at 17.) This appears to be a somewhat specious distinction. Stewart confined validated STG members to a highly restrictive environment, at least in part, to deter potential STG members from joining an STG. The fact that Stewart does not label those conditions as sanctions is irrelevant. So while it is clear that at least part of the general motivation behind the STG policy was the punitive purpose of deterrence, it is sometimes difficult to see how that motivation manifested itself with respect to particular conditions of confinement. For example, Stewart was asked to explain the reasoning behind allotting validated STG members three hours per week in the recreation area. Stewart responded that, "[t]he impetus for the change generally across the entire special management unit was driven by work load for the available staff. Giving . . . an inmate a shower and recreation more than what is constitutionally required just creates a workload on the staff that was unnecessary and so we looked at what we felt was by case law a constitutional minimum with regard to that and we complied with that. . . . [P]art of the reason I approved that is because I believe it meets constitutional standards." (Stewart Depo. at 10-12.) Elsewhere in the deposition, Stewart described the penological purpose behind other conditions of confinement, and none of the purposes were punitive in nature. For example, the reduced calorie diet is correlated to the limited physical exercise of SMU-2 inmates. (Stewart Depo. at 25.) The reduction in the number of outside visits allowed is attributable to security concerns, as is the prohibition on the purchase of food items from the commissary. (Stewart Depo. at 26.) With regard to the latter, the goal was to reduce the interaction between prison officials and SMU-2 inmates because of the high risk of attack when food is passed through the slot. (Stewart Depo. at 28.) On one occasion, an officer "reached in through the food slot to get a -6Document 106 Filed 03/28/2006 Page 6 of 59

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Styrofoam cup and he had his neck slit from side to side." (Stewart Depo. at 28.) This sort of attack was not uncommon. (Stewart Depo. at 28.) Finally, Stewart answered questions about what he perceived to be the impact of the conditions in SMU-2 on the inmates' mental health. On this point, Stewart was unequivocal: "I do not believe that [SMU-2] impacts their mental health." (Stewart Depo. at 22.) According to Stewart, the bases of that opinion are his own "common sense" and discussions with prison medical personnel. (Stewart Depo. at 22-24.) Stewart's tenure as ADOC Director ended in November 2002. At trial, Plaintiffs presented a video documentary entitled "Correction" that was apparently filmed in 2002 but released in 2004. The documentary shows footage of the training of ADOC corrections officers at the ADOC Correctional Officer Training Academy in Tucson, Arizona. In one segment, an instructor explains to trainees the "authoritarian" philosophy that should govern their interactions with "high security" inmates, including those in SMU-2. That philosophy, as explained by the instructor contains three parts: first, "what [the officer] says, goes"; second, inmates have rules and will be punished for violating those rules; and third, "[i]f you make [the] inmate's life miserable enough, [the] inmate will change." The instructor elaborated on these three points by explaining that, "[t]here is no room for negotiation." STG Policy under Director Dora Schriro 25. The current Director of the ADOC is Dora Schriro. She has held that position since May 26, 2004, but was Acting Director as of July 1, 2003. The STG policy that she inherited from her predecessor appears to be extremely similar, if not identical, to that which was implemented by Stewart. That is to say, the policy does not appear to have changed significantly during the interim tenure of ADOC Director Charles Ryan. Director Schriro has implemented significant changes to the STG policy which appear to have taken effect on March 15, 2006. The new policy enables validated STG members to secure their release from SMU-2 in a manner other than debriefing, -7Document 106 Filed 03/28/2006 Page 7 of 59

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though debriefing still remains an avenue of release from SMU-2. This "Step-Down" Program, which is explained in a revised D.O. 806, "permits active inmates, who have been validated as STG members, to remove themselves from STG activity and demonstrate to Department staff that they are no longer involved with STG activity. All inmates shall be required to complete 48 months as a validated STG member, where their activity shall be monitored, to successfully complete the Step-Down Program." (D.O. 806.08(1.1).) According to Director Schriro, the Step-Down Program was founded upon the premise that because the vast majority of inmates will eventually be released back into society, a prison should be managed in way that prepares inmates for that eventual return. The Step-Down Program creates a system of incentives to encourage inmates to behave in a more civil, less-violent manner, and to take full responsibility for their actions. Director Schriro acknowledged that this view of prison management represents a significant shift from that of her predecessors. However, at trial, Director Schriro did not profess to be critical of prior STG policy. Rather, she simply subscribed to a different conception of prison management that elevated the importance of incentivebased programs as a way of minimizing violence and preparing inmates to re-enter society. Director Schriro was also asked to describe the rationale behind the pre-Step-Down STG policy. While she obviously could not testify as to Stewart's motivation for implementing that policy, her own perception of the policy was that it was not punitive in nature, and in particular, she did not view it as a deterrent to other inmates from associating with STGs. Director Schriro had no knowledge of the "Correction" documentary, which was created before her tenure as either Acting Director or Director. She testified that she has never espoused the view that a prison should "make life as miserable as possible"

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for its inmates in order to "change" them. She would not comment on the video itself because she had not seen it prior to trial, and at trial, she saw only two minutes of it. Director Schriro's views as to the non-punitive nature of the pre-Step-Down STG policy were echoed by all of the other witnesses at trial who held supervisory or directorial positions at either the ADOC in general or SMU-2 in particular. For example, Carson McWilliams, the SMU-2 Deputy Warden, testified that the policy exists to segregate STG members from the general inmate population out of concern for the security of prison staff and other inmates. Deputy Warden

McWilliams has worked for the ADOC for about twenty-eight years in various capacities and in various prisons. While he was not at SMU-2 at the time the STG policy was in development, he was present at some of the early meetings at which the goals of the STG policy were discussed. In Deputy Warden McWilliams's opinion, the STG policy was not designed to "punish, chastise or deter" other inmates from associating with STGs. Samuel Sublett, the ADOC's Division Director of Offender Operations and an ADOC employee for about twenty-eight years, agreed. It is unclear what position he held at the time D.O. 806 was created, but he did opine that its purpose was not to punish, but "to identify and segregate members of the population whose behavior warranted removal. Their behavior . . . had a tendency to compromise . . . the staff's ability to maintain the good order of our institutions." Validated STG members posed a particular threat to security in light of their "predatory" tendencies, and affinity for "extortion, drugs, pressure, [and] assaults." In sum, the evidence is undisputed that the current ADOC administration perceived the pre-Step-Down STG policy to be rooted in the need to segregate validated STG members from the remainder of the prison population to ensure the security of prison staff and inmates. There is no evidence that they intended the pre-Step-Down STG policy as a method of deterring or otherwise punishing validated STG members.

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36.

With that background, the Court turns to the particular conditions at issue in this litigation.

Food 37. As mentioned above, the constitutionality of the food in SMU-2 is at issue only in Baptisto's case. Whereas the other two Plaintiffs had their food claims dismissed on summary judgment, Baptisto's claim was allowed to proceed because he alleged that he suffered a seventy-five pound weight loss upon his transfer to SMU-2. 38. 39. Inmates in SMU-2 are provided a 2,800 calorie diet per day. At several points in the trial, Baptisto made reference to statements in one of Defendants' briefs that the diet consisted of only 2,500 calories per day. The Court concludes that those statements are inaccurate. First, statements by an attorney in a brief do not constitute admissible evidence. Second, even if they did, all of the witnesses at trial with personal knowledge of the SMU-2 diet testified that the correct per day calorie count is 2,800. Those witnesses include Director Schriro, SMU-2 Deputy Warden McWilliams, Marvel Morrison, a dietician employed by Canteen Correctional Services, and Dr. Sheryl McGrill, a physician employed by the ADOC who works at the ADOC's Eyman Complex in Florence, Arizona, which includes SMU-2. 40. Morrison was Defendants' principal witness concerning the adequacy of the SMU-2 diet. Her position as dietician, which she has held since April 2004, consists of auditing ADOC diets and meal patterns, helping to formulate diets, and making recommendations concerning the diets. 41. In her view, the SMU-2 diet, which has gone relatively unchanged since 2002, provides an adequate amount of daily nutrition. 42. First, the number of calories in the diet is based on the sedentary lifestyle that SMU-2 inmates lead. In Morrison's view, a higher calorie diet could negatively impact the health of SMU-2 inmates, by leading to, among other issues, weight gain, heart problems and diabetes. - 10 Document 106 Filed 03/28/2006 Page 10 of 59

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43.

Inmates in the general population who lead a more active lifestyle are given a diet with an elevated calorie count. While Morrison was not certain as to the precise number, she believed it is about 3,100 calories.

44.

The substance of the 2,800 calorie per day diet is formulated based on national nutritional recommendations made by the United States Department of Agriculture ("USDOA") and the National Academy of Sciences ("NAS"). In particular, Morrison testified that the diet was influenced by the USDOA's food pyramid and the NAS's Dietary Reference Index ("DRI").5

45.

At trial, Baptisto testified that the SMU-2 diet causes him to feel hungry constantly, and that it has left him in a weakened condition. Baptisto also submitted into evidence his ADOC medical records, which he believes show that his transfer to SMU-2 caused him to lose up to seventy-five pounds.

46.

On cross-examination, Baptisto admitted that he never submitted a Health Needs Request ("HNR") concerning his alleged malnutrition, fatigue, or lethargy. He attributed this to his fear that ADOC officials were "out to get me." In spite of this fear, Baptisto submitted multiple HNRs concerning problems with his teeth in 2003. He also submitted an HNR because he wanted a blood test to determine whether he had diabetes. Baptisto has never alleged that he has received improper medical care for the HNRs that he has submitted.

47.

Two defense witnesses were called to refute Baptisto's claims. The first was Morrison, who, in addition to the testimony described above, examined aspects of Baptisto's medical records.

Morrison provided the Court with a brief overview of the history of the DRI. Beginning around World War II, the NAS issued Recommended Dietary Allowances ("RDAs") which suggested the proper nutrition levels that a diet should contain. About five years ago, the NAS began to issue DRIs which Morrison believed represent more accurately the nutritional values that should be contained in one's diet. - 11 Document 106 Filed 03/28/2006 Page 11 of 59

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48.

Baptisto's records indicate that he is five feet and eleven inches tall, and between 1990 and 2002 (the year he was transferred to SMU-2), his weight hovered in the range of 210 pounds. By 2004, his weight had decreased to about 170 pounds.

49.

Morrison stated that while she could not provide a definitive explanation as to what had caused the drop in weight, she did testify that it was not due to any deficiency in the SMU-2 diet. First, she stated that the SMU-2 diet is between 100 and 300 calories per day less than the standard inmate diet that Baptisto was consuming in his previous location, and that such a relatively small decrease could not account for the weight loss. Second, she stated that, according to NAS's DRI, a male between the ages of twenty-one and fifty years old leading a sedentary lifestyle requires 2,400 calories to maintain his weight, and the SMU-2 diet far exceeds that amount. Third, she acknowledged that she was unaware of what commissary items Baptisto was eating in his former housing unit, but that commissary items typically were "empty calories" such as chips and soda, and the elimination of commissary privileges could have played a role in the weight loss, though she noted that the elimination of the empty calories would have been beneficial to Baptisto's health, not detrimental as he suggested. Finally, Morrison stated that Hepatitis C could conceivably cause a drop in weight, but Baptisto stated that he does not have Hepatitis C, and there is no evidence to contradict Baptisto's statement.

50.

The second defense witness who testified concerning Baptisto's diet was Dr. McGrill, an ADOC physician since March 2005 who has been practicing medicine for almost twenty years. Her focus at ADOC is exclusively on patient care.

51.

Dr. McGrill opined that an approximately forty pound drop in weight over a threeyear period was not a particularly rapid weight loss nor did it necessarily suggest malnutrition. Dr. McGrill computed Baptisto's Body Mass Index ("BMI") when he weighed 208 pounds to be 29.6 In her view, that figure suggests that Baptisto was

6

Dr. McGrill may have miscalculated Baptisto's BMI. Defense counsel informed Dr. - 12 Document 106 Filed 03/28/2006 Page 12 of 59

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clearly overweight and bordering on obese. His more recent weight of nearly 160 pounds was within the proper weight range for his height. Dr. McGrill also noted that Baptisto was given a blood test in August 2004 at his request, and the results revealed no evidence of malnutrition. In her view, if Baptisto was suffering from malnutrition, it would have manifested itself in his "blood proteins" and "blood count." Also, it was pointed out to Dr. McGrill that Baptisto actually gained six pounds in one year while in SMU-2. Whereas Baptisto weighed about 168 pounds in October 2004, he weighed 174 pounds in September 2005. Dr. McGrill noted that, "if you're gaining weight, you're consuming more calories than you need." Having considered all of the evidence, the Court does not believe that the SMU-II diet has caused Baptisto to become malnourished. That conclusion is based on the following: The Court finds the testimony of Morrison and Dr. McGrill to be highly persuasive. In particular, the Court believes that based on their testimony, the SMU-2 diet contains a sufficient number of calories for a person of Baptisto's gender, age, size, and sedentary lifestyle. The diet also contains federally-recommended nutrition levels. Baptisto never submitted any HNRs relating to his alleged malnutrition, and the Court finds his stated reason for failing to do so - fear that prison officials were "out to get him" - to be implausible in light of his submission of multiple HNRs for other health issues, all of which ADOC appears to have responded to in a satisfactory manner.

McGrill that Plaintiff's height is "six foot one, which is 71 inches." In fact, seventy-one inches is not equivalent to six feet and one inch, but five feet and eleven inches. It is not clear whether Dr. McGrill relied on the seventy-one inch figure or the six feet and one inch figure to calculate Baptisto's BMI. In any event, even if she relied on the erroneous number, it would have benefitted Baptisto. - 13 Document 106 Filed 03/28/2006 Page 13 of 59

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57.

There is no evidence that Baptisto was malnourished. His blood tests revealed no evidence of malnutrition. His current weight is within the normal range for his height, and his weight prior to his transfer to SMU-2 was well-beyond the normal range, and actually increased his risk of physical illness.

58.

Baptisto did not lose seventy five pounds upon transfer to SMU-2. Rather, he lost forty pounds over three years, a reasonable rate of weight loss. Also, there are periods during Baptisto's incarceration in SMU-2 that he has actually gained weight, further undercutting his opinion that he is in a state of starvation.

59.

While the Court does not come to a conclusion as to the cause of the weight loss, one likely cause is the elimination of the ability to purchase food from the commissary in SMU-2. Commissary food appears to generally fall under the label of "junk food," and its elimination from Baptisto's diet, if anything, is likely to improve his health, especially, as Dr. McGrill notes, in light of his fear of developing diabetes.

60.

The Court also concludes that the intent of the ADOC in implementing the current SMU-2 diet is non-punitive in nature. While former Director Stewart may have generally intended that the indefinite segregation of validated STG members in SMU2 serve as a deterrent to other inmates contemplating involvement with STGs, that purpose has not manifested itself in the diet given to SMU-2 inmates, and Stewart himself testified in his deposition that the lower-calorie SMU-2 diet exists because of the reduced level of activity of SMU-2 inmates. Also, the testimony by the current members of the ADOC administration uniformly rejected any suggestion that any of the conditions in SMU-2 exist for the purpose of punishing validated STG members or deterring potential STG members.

61.

Rather, the diet has been formulated with the exclusive intention of meeting the inmates' nutritional and caloric needs in light of their reduced-activity lifestyle.

62.

The footage from the "Corrections" documentary does not affect the Court's conclusion about the ADOC's intention behind the SMU-2 diet. There is simply no indication that the instruction to the trainees in the video to make life "as miserable - 14 Document 106 Filed 03/28/2006 Page 14 of 59

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as possible" for SMU-2 inmates relates to the food SMU-2 inmates are served. In fact, the Court does not believe that the documentary has any impact on the instant litigation. There has never been any allegation of officer misconduct or any abuse of SMU-2 inmates apart from the general conditions of confinement. The documentary, and all of the other evidence admitted at the bench trial, fail to establish any sort of nexus between the training of ADOC correctional officers and the conditions of confinement presently at issue. As a final note, at the time these actions were commenced, STG-validated inmates were not entitled to purchase food from the commissary. As the Court held in its Orders granting in part Defendants' motion for summary judgment, inmates do not have a constitutional right to purchase food from the commissary. The Eighth Amendment, as will be discussed more fully below, simply guarantees inmates the right to adequate food. As long as prisoners receive an adequate diet from the prison, they have no right to purchase food items from the commissary. Lighting - Overview 64. All three Plaintiffs contend that the lighting conditions in SMU-2 constitute cruel and unusual punishment in violation of their Eighth Amendment rights. At trial, the Court heard and saw extensive evidence concerning the lighting conditions in SMU-2. That evidence consisted of videotapes of the prison, the testimony of witnesses and documentary evidence. The videotapes, which were admitted into evidence as Exhibits 99 and 100, depict the recreation area as well as the inside of a typical SMU-2 pod and cell, both with the day lights on and off, with only the security light illuminating the cell. Each building within SMU-2 contains twelve clusters; each cluster contains six pods; and each pod contains ten cells, five on the lower level, five on the upper level. Part of the ceiling in each cluster consists of skylights.

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68.

Each cell in SMU-2 has the same physical layout and appearance. The wall to which the light is attached is dark grey, and the remaining walls appear to be an off-white color.

69.

Diaz testified that the walls in his particular cell are "bright white," with the exception of the wall to which the sink is connected, which Diaz said was gray.

70.

The front of the cell does not contain bars like in a traditional cell, but consists of a solid sheet of metal with perforations measuring less than one inch in diameter. Both the door and the remainder of the front of the cell are perforated, and the door contains a solid trap which is used for various purposes including passing food and other items into the cell, as well as securing inmates before they are removed from the cell.

71.

When one enters the cell, there is a bed against the far wall. Against the left wall is a sink, a toilet and a surface for writing. Bolted above the sink is a mirror that appears to be made of metal.

72.

Several inches above the mirror is the cell's sole lighting fixture, which is a rectangular box approximately two feet across by ten inches down. That fixture is covered in a high-impact resistant plastic.

73.

Within that lighting fixture are four lights, one of which is a "security" light that remains illuminated for 24 hours per day. The security light consists of a seven watt fluorescent bulb; the other three lights are each forty watts. The three non-security lights are directional; that is, one bulb points up and two point down.

74.

The non-security lights are turned off between 10 p.m. and 4 a.m. on weekdays, and 12 p.m. and 4 a.m. on weekends.

75.

During the hours that the non-security lights are off, there is minimal light entering each cell from outside. At the end of the five-cell hallway, there is a fluorescent light fixture that remains on at all times. There is also some light from the security tower that can be seen through the skylight.

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76.

Gerald Katafiasz, an electrical engineer with experience conducting lighting surveys and in particular light-level evaluation, was hired by the ADOC to measure the lighting in the SMU-2 cells.

77.

To measure the lighting, he used a light meter, which he calibrated before taking light measurements.

78.

The unit of measurement that the light meter employs is the "foot candle." Katafiasz defined a "foot candle" as the amount of light that a candle puts off in an approximately one square foot area around the candle.

79.

Katafiasz made two visits to SMU-2, the first on December 2, 2005, the second on December 15, 2005. Both visits were to SMU-2's King Cluster, Pod 6. His first visit was during the daytime. He arrived at approximately 2:15 p.m. and left one hour later. His second visit was at night. He arrived at 9:45 p.m. and left at 10:45 p.m.

80.

On both occasions, he took light readings from within various cells and from outside the cells but within the pod.

81.

First, he took light readings from the lower level of the pod directly beneath the skylights. During the day, the light measurement was eighty-eight foot candles. At night, he took two readings from that location. On the first reading, the day-use lights were on, and the light measured eight foot candles. On the second reading, the dayuse lights were off but the fluorescent light at the end of the hall was on, and the light measurement was .6 foot candles.

82.

During the day, Katafiasz took two additional readings from outside the cells but within the pod. On the second level in front of a cell door, the light reading measured fourteen foot candles. On the second level near the hand rail (farther away from the cell door), the light reading measured sixty-two foot candles.

83.

On both occasions, Katafiasz took light readings from within four cells, two on the lower tier and two on the upper. During the daytime, the average amount of light at the writing surface was thirty-five foot candles; the average at the sink was seventytwo foot candles; and the average at the cell bed was two foot candles. At night, - 17 Document 106 Filed 03/28/2006 Page 17 of 59

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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 92. 91. 90. 89. 88. 87. 86. 84. 85.

Katafiasz took light readings from within the same four cells, but with the cell door open, and only the security light on. The average light readings were 1 foot candle by the sink area, .85 foot candles by the writing area, and .25 foot candles by the bed. The sink area is brighter because the lighting fixture is centered directly over it. The light reading for the bed area varies depending on the distance from the light fixture. One end of the bed touches the wall to which the light fixture is attached; the other end of the bed touches the opposite wall and is consequently darker at night. The average light reading for the end of the bed that is farther from the light is .21 foot candles. The light readings for all four of the cells were very similar. For example, the light measurements taken at night for the portion of the bed father from the light fixture were, respectively, .22, .20, .21, and .21. The measurements for the portion of the bed closer to the light fixture were, respectively, .33, .27, .29, and .29. It is unclear to the Court why the light measurements taken at night were not taken with the cell doors closed, as inmates obviously sleep with their cell doors closed. Katafiasz conceded that he did not analyze the lighting conditions in the actual cells where Plaintiffs are housed. Katafiasz also testified that the socket that the seven watt security bulb occupies could not tolerate a higher watt bulb. Deputy Warden McWilliams equated the brightness of the security light to that of a child's nightlight. The Court concludes that the light readings taken by Katafiasz on his two visits to SMU-2 closely approximate the light levels in Plaintiffs' respective cells. That conclusion is based on the following: Multiple ADOC officials, including Deputy Warden McWilliams and Sublett, testified that all cells within SMU-2 are essentially the same. In particular, the cells have the same physical layout, in terms of the location of the bed, the sink and the light fixture, and the cells all contain the same security light. - 18 Document 106 Filed 03/28/2006 Page 18 of 59

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93.

Katafiasz testified that the sockets that the security lights screw into could not accommodate a bulb higher than seven watts.

94.

Plaintiffs did not specifically dispute that the light fixtures in their cells were of a different appearance than those depicted in Exhibits 99 and 100. In particular, they did not testify that the plastic casing around the four bulbs was, for example, lighter or darker on their cells than those depicted in the videos.

95.

While Plaintiffs argued that their cells are generally brighter than those examined by Katafiasz, there is no credible evidence to support that contention. One difference that Diaz pointed out was that while one of the cells in Exhibit 100 appears to have a sort of plexiglass over the cell door, his cell does not. While that may be true, it is irrelevant to the issue of whether his cell is brighter than those examined by Katafiasz.

Lighting - Penological Purposes for Security Light 96. Several ADOC employees testified concerning the penological purposes for the security light and other aspects of the lighting in SMU-2. 97. The penological purposes for the security light relate to the health and welfare checks that officers perform every hour. Deputy Warden McWilliams estimated that each security check requires approximately three minutes per pod. That is, it takes three minutes for the officer to check all ten cells within a pod. 98. The purpose of the hourly checks is to ensure that inmates are present in their cells and are alive. 99. SMU-2 inmates are not permitted to cover their entire faces, as it would make it impossible to tell whether they are alive. They are, however, permitted to cover their eyes. The key, according to ADOC Correctional Officer II ("C.O. II") Randy Hubbard, is whether the officer can "see flesh" and see that the inmate is breathing. 100. Two officers are required to perform the hourly checks. The first officer is the one actually walking through the pod and performing the checks. The second officer remains in the center of the cluster area on the second level and provides "visual backup." - 19 Document 106 Filed 03/28/2006 Page 19 of 59

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101.

According to Sublett, the security light is essential to the safety and security of corrections officers who are required to perform the hourly checks: "Because of the nature of the behavior of the individuals that live in SMU-2, it's important that when . . . an officer approaches the cell front he has some sense of depth perception so he knows where the inmate is at in the cell. The perforated cell fronts are not the most ideal form of visibility for our corrections officers. I am not interested in having an officer walk up to a dark cell for risk of their safety."

102.

The origins of the security light in SMU-2 can be traced back to SMU-1, which is "the first generation of maximum security prisons in Arizona." Before SMU-2 was constructed, comments and feedback were solicited from officers working in SMU-1 concerning ways to improve the safety and security of the new prison. One area where officers felt improvements could be made was the lighting.

103.

SMU-1 cells do not contain a 24-hour security light. Corrections officers must do hourly checks using flashlights. The perforated cell fronts make it difficult for officers to see into the cell.

104.

While officers in SMU-1 still use flashlights to do the hourly checks, and while those checks are, in Sublett's view, "generally successful," SMU-2 inmates pose greater security risks to the safety of the officers such that flashlights would be an insufficient way to examine a cell at night.

105.

Deputy Warden McWilliams agreed with Sublett's conclusions concerning the security light as an important tool for officer safety.

106.

The deputy warden also testified that in his experience, the use of flashlights in lieu of security lights is highly disruptive to the inmates' ability to sleep. Whereas a security light provides a low, constant level of light, an officer performing a health and safety check with a flashlight is required to shine it in the faces of sleeping inmates to determine whether they are present and alive.

107.

Deputy Warden McWilliams also testified that if flashlights were used in place of security lights, there would be blind spots in the cells as the officer performing the - 20 Document 106 Filed 03/28/2006 Page 20 of 59

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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 28 112. 111. 110. 108.

checks approached. These blind spots would be particularly problematic in light of the history of assaults by SMU-2 inmates against officers, sometimes through the use of metal darts shot through the perforated holes that make up the front of the cell. On cross-examination of Deputy Warden McWilliams, Diaz asked whether it would be possible for the security light to be turned on only when the corrections officers are performing the hourly checks and turned off the remainder of the time. Deputy Warden McWilliams answered in the affirmative,7 but speculated that the act of turning the lights on and off might disrupt sleeping inmates. Second, he theorized that turning the lights on and off "might have an impact on the light switch itself." Third, he seemed to suggest that it would require additional manpower, though it is not clear why that would be the case as both scenarios require two officers. Lighting - Penological Purpose for Sleep Schedule 109. As mentioned above, the three non-security lights in SMU-2 cells are turned off between 10 p.m. and 4 a.m. on weekdays and between 12 p.m. and 4 a.m. Once the non-security lights are turned off, inmates are still permitted to use appliances like walkmen, though televisions, which operate on a closed circuit that is controlled by the ADOC, are shut off. According to Deputy Warden McWilliams, inmates are permitted to continue sleeping after all of the lights are turned on, but they must be awake by 7 a.m. Deputy Warden McWilliams was unaware of why the lights are dimmed for only four hours on weekends, but he speculated it was because inmates wanted to stay up for various reasons, like writing letters or reading.

C.O. II Hubbard testified that it was not possible for the security lights to be turned on and off during the hourly checks. For reasons that will be discussed below, the resolution of this factual dispute is immaterial to the Court's decision with respect to the lighting claim. - 21 Document 106 Filed 03/28/2006 Page 21 of 59

7

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113.

Defendants' Exhibit 77 is a log of a typical day in SMU-2. The log illustrates the highly regimented existence led by SMU-2 inmates and officers.8

114.

For example, breakfast begins at 4:30 a.m., and from 5:30 a.m. to 5:50 a.m., officers conduct a "formal count." At 6:00 a.m., there is a "sharps count" conducted, and from 6:25 a.m. to 6:35 a.m., there is a security and sanitation inspection. At 8:00 a.m., feeding is completed and trays are picked up. Also at 8:00 a.m., education and visitation turns are completed. At 8:30 a.m., inmates begin recreation and shower time. This detailed schedule continues throughout the day until midnight, when there is another security check and officers pick up mail and library books.

Lighting - Effect on Mullins 115. Plaintiff Mullins briefly testified at trial. He offered no testimony or other evidence concerning the effects, if any, of the allegedly inadequate lighting. 116. He stated that, in general, the conditions in SMU-2 were "deliberately inflicted on us . . . and long term exposure to these conditions can cause damage, not necessarily will, but can cause damage." 117. Mullins never submitted an HNR relating to the health effects, if any, he was suffering as a result of the lighting. In particular, he never complained to the ADOC of an inability to sleep or of any adverse psychological or physical effects of the lighting.9 Nor did he testify to that effect. Lighting - Effect on Baptisto 118. Plaintiff Baptisto also testified at trial. He stated that the 24-hour lighting has adversely effected his sight and caused him to see hallucinations, which take the form of "bugs." The hallucinations began when he was transferred to SMU-2 in June 2002,

Deputy Warden McWilliams testified that this log was created before the switch from three hours of recreation time per week to six hours. However, that switch did not affect the log by more than "a few minutes." Deputy Warden McWilliams testified that he has never been made aware of an HNR filed by an SMU-2 inmate complaining of an inability to sleep. - 22 Document 106 Filed 03/28/2006 Page 22 of 59
9

8

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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 28 122. 121. 120. 119.

and he frequently found himself "going around in circles," trying to swat the bugs, but "they just keep coming. . . . And after several days, I stopped and I started thinking, Why am I chasing bugs that don't exist? And ever since then, every now and then, I'll sit there and I'll . . . be looking at the light and they'll start coming and I have to tell myself that they're not real." Baptisto testified that the hallucinations occur less frequently now because he has learned to distract himself by watching TV and doing other activities, but sometimes the bugs "still come fly in my face." He also stated that if he looks directly into the light, his eyes "start to burn." According to Baptisto, the lights also affect his ability to sleep, and he sometimes sleeps as little as two to three hours per night. He sometimes attempts to sleep by covering his face with a blanket, but officers performing their hourly health and welfare checks do not allow that, and bang on his cell door to wake him up. On cross-examination, Baptisto conceded that he has never made a medical request concerning the hallucinations or the alleged effect of the lighting on his vision, his ability to sleep or his energy level. Nor has Baptisto submitted a medical request for any issue relating to his mental health. According to Baptisto, the submission of an HNR would be futile because "they're out to get me. . . . [I] have to always be watching out for them." However, as mentioned above, Baptisto submitted multiple HNRs for other health issues, like problems with his teeth and his fear that he had developed diabetes. He does not contest that those concerns were adequately addressed by ADOC medical personnel. For these reasons, the Court has considerable doubt about Baptisto's credibility with regard to the effects he claims to suffer from the lighting. Lighting - Effect on Diaz 123. Plaintiff Diaz testified at trial about the effect that the 24-hour lighting has had on his mental condition and his ability to sleep. According to Diaz, the lighting renders him unable to fall asleep and he has developed "health problems such as migraine - 23 Document 106 Filed 03/28/2006 Page 23 of 59

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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 28 126. 125. 124.

headaches." He also believes that the lighting has led to the deterioration of his vision, causing him to wear eyeglasses, which he claimed he never wore before his transfer to SMU-2. On cross-examination, however, Diaz did not dispute that he had glasses before his transfer to SMU-2 and that, "to some degree," he had poor eyesight. On May 16, 2001 (one day after his transfer to SMU-2), he submitted an HNR stating, "I need glasses. I've had a pair before but they broke and were contrabanded. . . . I think my eyes have gotten worse." Later in cross-examination, Diaz stated that his eyesight had begun to deteriorate when he was housed in SMU-1, which, according to Diaz, has the same lighting conditions as SMU-2. There is no evidence that Diaz submitted an HNR concerning his eyesight while he was housed in SMU-1. Diaz also did not dispute on cross-examination that his first HNR concerning his migraines occurred on February 24, 2004, about six months after he filed the instant lawsuit. However, the HNR does allude to the fact that prior to the submission of the HNR, Diaz had been taking Ibuprofen for his headaches. The evidence was undisputed that an inmate need not submit an HNR to obtain over-the-counter medications such as aspirin and Ibuprofen. It is not clear how far in advance of the February 24, 2004 HNR Diaz began to take the Ibuprofen, though Diaz did see a doctor on March 2, 2004 and informed the doctor that he had been suffering from severe headaches in the back of his head and neck for the last three months, and that Ibuprofen was no longer effective. Diaz saw the same a doctor again on April 16, 2004 and complained of a different type of headache, whose symptoms were consistent with those of a migraine headache. Diaz stated that the headaches lasted for sixty to ninety minutes and sometimes caused blurriness of vision. At that meeting, Diaz told the doctor that he had "always" suffered from headaches in the back of his head that were helped by Ibuprofen. For the migraines, Diaz was prescribed Cafergot, a medication that

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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 28 130. 129. 128. 127.

combines caffeine and ergotamine. As of the time of trial, Diaz continues to take that medication. Finally, Diaz was asked to summarize the evidence that he believed demonstrated that the conditions in SMU-2 affected his mental health. That evidence, according to Diaz, consists of the prescription by an ADOC psychiatrist10 of Paxil and Prozac, which Diaz took from May 2004 to December 2004 but then voluntarily discontinued because he received articles from his family that he believed demonstrated that those drugs "caused some form of side effects . . . like suicide, suicidal tendencies." The testimony of three other witnesses bears on the alleged adverse effects Diaz claims he has suffered as a result of the lighting in SMU-2. The first witness is Dr. McGrill, an ADOC physician, the second is Dr. Wanda Taylor, an ADOC psychiatrist who briefly treated Diaz; the third is C.O. II Hubbard, who monitored Diaz's sleep patterns for several months. Dr. McGrill, whose practice at ADOC focuses exclusively on patient care, has an extensive background in diagnosing and treating people with migraine and tension headaches. The term "headache," Dr. McGrill explained, is an umbrella term that, quite logically, refers to any aching in the head. "Some headaches have structural causes, such as a brain tumor, skull fracture, [or] sinusitis. . . . Most headaches are non-structural and of those, there's really no test that we can do to make the diagnosis of . . . headache." In other words, a physician is entirely reliant on the patient's subjective complaints when formulating a diagnosis. Tension headaches are caused by the tightening of the muscles around the head. Vascular headaches, the most common of which is the migraine headache, are not as well understood. Dr. McGrill explained that such headaches likely occur when blood vessels leading to the brain constrict and then dilate. The constriction of the blood vessels often can produce neurological symptoms, such as "flashing light, blind spots,

10

Further details of Diaz's meetings with a psychiatrist will be discussed below. - 25 Document 106 Filed 03/28/2006 Page 25 of 59

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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 28 137. 136. 135. 134. 133. 132. 131.

numbness, [and] funny taste." The pain begins when the vessels dilate. While migraine headaches sometimes occur on only one side of the head, tension headaches typically affect both sides. Migraines usually begin when a person is between fifteen and twenty-five years of age. Diaz was twenty-four years old when he submitted his HNR in connection with his headaches. According to Dr. McGrill, there are an essentially unlimited number of triggers for migraine headaches, including stress, heat, and certain types of foods. Dr. McGrill could not rule out the possibility that constant exposure to bright lights could trigger migraine headaches, as well as deprivation of outdoor exercise, provided that the individual perceived those conditions to be stressful. Both migraine headaches and tension headaches can sometimes be relieved by resting in a dark room. In Dr. McGrill's estimation, 80-90% of the adult population suffers from some form of recurrent headache. 30-50% of those people describe their symptoms as "severe or disabling." On a typical day as an ADOC physician, Dr. McGrill meets with ten to fifteen patients, and of those, one or two patients complain of some form of headache. Those patients are housed in SMU-2 as well as other ADOC facilities. Dr. McGrill studied Diaz's medical records, and concluded that even assuming the truthfulness of his complaints regarding his headaches, he has suffered no permanent damage to his physical health. The next witness who testified concerning Diaz's mental health was Dr. Wanda Taylor, a psychiatrist who has been employed by the ADOC for five years, and has worked with SMU-2 inmates for about three-and-a-half years, though she does not work exclusively with inmates at that facility. In all, she has been a doctor for about twenty-five years.

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138.

During that time, she estimates that she has diagnosed and treated "thousands" of patients with anxiety disorders. During her five years with the ADOC, about 10% of the inmates she meets with complain of anxiety. That number includes SMU-2 and non-SMU-2 inmates.

139.

One of Dr. Taylor's duties is the performance of psychiatric evaluations of ADOC inmates who have been referred to her by one of several sources, including an ADOC mental health therapist. She also has the responsibility, once diagnosis has occurred, of making recommendations for treatment, which may include prescribing medication.

140.

In May 2004, several months after the filing of this lawsuit, Diaz was referred to Dr. Taylor by a mental health therapist, whom Diaz presumably consulted after submitting an HNR concerning anxiety that he was experiencing.

141.

Dr. Taylor conducted a "telepsychiatry"11 session with Diaz, and arrived at a preliminary diagnosis of anxiety disorder. At trial, she described the diagnosis as anxiety disorder "N.O.S.," meaning "not otherwise specified" because "it did not fit a particular anxiety disorder." At that time, she did not believe the disorder to be "severe."

142.

Dr. Taylor testified that there can be multiple causes for anxiety disorder, and she was unaware, as of her first meeting with Diaz, what caused what she then believed to be his disorder.

143.

After her initial consultation with Diaz, Dr. Taylor prescribed 10 milligrams of Prozac for two weeks, then upped the dosage to 20 milligrams. Dr. Taylor commonly prescribes Prozac to treat anxiety and depression.

144.

The normal dose of that drug used to treat anxiety and depression is between 20 and 60 milligrams.

A "telepsychiatry" session is one in which the psychiatrist and the patient are not in the same room, but in separate locations each equipped with a video camera and a television. - 27 Document 106 Filed 03/28/2006 Page 27 of 59

11

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145.

Dr. Taylor had a followup meeting with Diaz in July 2004, where he continued to complain of anxiety. Dr. Taylor decided to switch Diaz from 20 milligrams of Prozac to 20 milligrams of Paxil. At that time, Dr. Taylor also recommended some relaxation treatments that Diaz could obtain through the mental health program to help ease his anxiety. Dr. Taylor had no information on whether Diaz pursued the relaxation treatments, and there was no evidence presented at trial that he did.

146.

Three months later, Dr. Taylor met with Diaz for a third time, and he stated that he was "doing alright" and he felt "better." Diaz did not disclose any adverse side effects from the drug. Dr. Taylor continued to prescribe the same dosage of Paxil.

147.

At their fourth meeting, in January 2005, Diaz informed Dr. Taylor that he had stopped taking Paxil six weeks earlier. He gave what Dr. Taylor described as a "confusing" explanation for the cessation: he said that he was experiencing

depression and believed that it was a side effect of the Paxil. Dr. Taylor explained to him that depression was not a side effect of Paxil, and that if anything, if he was experiencing depression, the dosage of the medication should be increased, as Diaz was at the lower end of the normal dosage range. 148. Dr. Taylor also stated that at that meeting, Diaz's "affect was different, meaning . . . that when you look at someone, how someone [is] looking. Are they looking happy? Are they looking sad or are they looking like they have absolutely no emotion? . . . He was smiling. He was grinning. There was something going on. There was a little more going on. . . . [He] didn't appear depressed, didn't appear anxious. And it made me question the diagnosis to begin with. Whether there was something else going on." She also testified that, "There seemed to be some other motive apparent that wasn't being stated. . . . [U]sually when I see someone who's anxious, it's a very uncomfortable feeling. I mean, people don't like feeling anxious. And . . . if they get that kind of relief from [Paxil or Prozac] like Mr. Diaz said he did when he took it, it's unusual for one to stop it or not even want to investigate even another option if you got relief because it is an uncomfortable disorder." - 28 Document 106 Filed 03/28/2006 Page 28 of 59

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149.

Another reason Dr. Taylor doubted that Diaz ever suffered from anxiety was the time at which he claims the symptoms arose. Commonly, the occurrence of a particular event triggers feelings of anxiety, such as the illness of a family member or a divorce. In Diaz's case, he reported no such triggering event to her. Rather, he informed her that the feelings started to arise, after three years in SMU-2, with no apparent triggering mechanism other than his continued incarceration. The development of an anxiety disorder under those circumstances is, in Dr. Taylor's words, "unusual."

150.

Dr. Taylor formally terminated the Paxil prescription, and held a final meeting with Diaz in April 2005 to ensure that he was suffering no ill-effects from discontinuing use of the drug. At that meeting, Diaz told Dr. Taylor that he did not want to try taking Paxil again, "or any other medication." He also informed her that he did not want to pursue any additional remedies through the prison's various mental health programs.

151.

As mentioned above, at trial, Diaz told the Court that he ceased taking the medication because of articles he says he received from his family about the potentially harmful effects of the drugs, such as suicidal tendencies. Dr. Taylor disagreed that the drugs she prescribed were dangerous or could cause any mental health damage.

152.

At trial, Dr. Taylor explained that anxiety is the most common mental health complaint that she sees among ADOC inmates, not just within SMU-2 but within all of the ADOC facilities where she treats patients. She stated that incidents of anxiety are not disproportionately high among SMU-2 inmates.

153.

According to Dr. Taylor, between 8 and 10% of the SMU-2 population suffer from some sort of anxiety disorder.

154.

However, 8 to 10% of people in society as a whole suffer from some sort of anxiety disorder.

155.

Diaz asked Dr. Taylor if she could generally attribute the anxiety or depression suffered by the SMU-2 inmates "to a long term isolation." Dr. Taylor said that she could not because she sees the same sorts of disorders with the same frequency in - 29 Document 106 Filed 03/28/2006 Page 29 of 59

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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 28 162. 161. 160. 159. 158. 157. 156.

ADOC facilities where there is greater movement and activity allowed. Diaz then asked whether Dr. Taylor could attribute any of the cases of depression or anxiety in SMU-2 to the long term isolation, and Dr. Taylor again responded in the negative. Dr. Taylor also testified that she did not believe there was any correlation between anxiety and constant lighting. To the contrary, Dr. Taylor recommends nightlights to some of her patients. Dr. Taylor agreed with Dr. McGrill's testimony that it is possible that constant lighting can cause anxiety if the lighting is a source of stress to the individual. In sum, Dr. Taylor stated that while her initial diagnosis of Diaz was anxiety disorder, her subsequent meetings with him convinced her that he did not suffer from any mental health disorder. The final witness who testified concerning Diaz's mental health was C.O. II Hubbard. An ADOC employee for nine years, he has worked at SMU-2 for all but nine weeks of that time. At the time of trial, Hubbard worked on the graveyard shift, which runs from 8:40 p.m. until 6:40 a.m. One of his duties on that shift is to perform the hourly cell checks. From July 7, 2005 through February 3, 2006, Hubbard maintained an observational log that described whether or not Diaz was sleeping at various points throughout the night. The log, which was entered into evidence as Exhibit 102, is summarized in the following chart:

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Month/Year July 2005 Aug. 2005 Sept. 2005 Oct. 2005 Nov. 2005 Dec. 2005 Jan. 2005 Feb. 2005 Totals 163. 164.

Number of observations by Hubbard 12 22 12 9 23 13 7 4 102

Number of times Diaz appeared to be asleep 10 19 11 8 21 11 7 4 91

To summarize, Diaz was asleep 89% of the time that he was observed by Hubbard. On ten occasions, Hubbard observed that Diaz was sleeping even with the day-use lights fully activated.

165.

More specifically, the day-use lights are activated at 4 a.m. On every occasion that Hubbard observed Diaz after the day-use lights were activated, Diaz was asleep.

166.

Also, of all of the occasions where Hubbard observed that Di