Plaintiffs Response To Dismiss

Case 2:09-cv-00824-DGC Document 23 Filed 08/27/09 Page 1 of 19
1 LORONA STEINER DUCAR, LTD.

3003 North Central Avenue, Suite 1500
2 Phoenix, Arizona 85012-2909
Telephone: (602) 277-3000
3 Facsimile: (602) 277-7478
jlorona@azlawyers.com
4
Jess A. Lorona, #009186
5 Attorneys for Plaintiffs
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF ARIZONA
8
Eileen Kelly, as the Surviving Parent of CASE NO. CV09-824-PHX
9 Sean Desmond Kelly; Donna Ashcraft
as Conservator of Athena Ashcraft,
10 natural daughter of Sean Desmond PLAINTIFFS’ RESPONSE TO
3003 NORTH CENTRAL AVENUE, SUITE 1500
LORONA STEINER DUCAR, LTD.
11 Kelly; Lynn Butcher as the DEFENDANTS’ MOTION TO DISMISS

PHOENIX CORPORATE CENTER
PHOENIX, ARIZONA 85012-3909
Representative of the Estate of Sean FIRST AMENDED COMPLAINT

Desmond Kelly,
ATTORNEYS AT LAW
12
(602) 277-3000
13 Plaintiffs, (Assigned to the Honorable

vs. David G. Campbell)
14
15 State of Arizona, acting by and through
the Arizona Department of Corrections;
16 Dora B. Schriro, Director of Prisons
for the State of Arizona; Berry Larson,
17 Warden of Arizona State Prison
Complex – Lewis; John and Jane Does
18 I-X,
19
Defendants.
20
Plaintiffs, by and through their counsel undersigned, hereby respectfully
21
respond to the Defendants’ Motion to Dismiss First Amended Complaint. This
22
23 Response is supported by the Memorandum of Points and Authorities attached hereto
24 and incorporated herein by this reference.
25
1
1 RESPECTFULLY SUBMITTED this 27th day of August, 2009.
2
LORONA STEINER DUCAR, LTD
3
4
BY: /s/ Jess A. Lorona
5 Jess A. Lorona
3003 North Central Avenue, Suite 1500
6 Phoenix, Arizona 85012-2909
Telephone: (602) 277-3000
7
Facsimile: (602) 277-7478
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ATTORNEYS AT LAW
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(602) 277-3000
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. RELEVANT FACTUAL BACKGROUND
3 A. Facts Setting Forth the Plaintiffs’ Attempts to Obtain Facts to State

A Claim
4
5 1. On or about December 2, 2008, the family of Sean Kelly retained
6 counsel undersigned to represent them in their claims against the Arizona Department
7 of Corrections (hereinafter referred to as “ADOC”) pertaining to the death of Sean

8 Kelly on June 29, 2008 at the Morey Unit of the Arizona State Prison-Lewis Complex.
9
2. On or about December 4, 2008, a letter was sent to the ADOC
10
Public Access Department requesting all records, including the investigative reports
11
pertaining to Sean’s death.

ATTORNEYS AT LAW
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(602) 277-3000
13 3. On December 11, 2008, counsel’s office called the Criminal
14 Investigative Unit at Lewis and spoke with Suzy Roussel. Ms. Roussel was advised of
15 our need to obtain a copy of the investigative reports pertaining to Sean’s death. An
16
inquiry was made of Ms. Roussel as to whom we should contact to get the report. Ms.
17
Roussel gave us the name of Robert Williams and advised us that such a request
18
should be made to him. A letter was sent to Mr. Williams on December 11, 2008.
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4. Sometime after the December 4, 2008 letter and the December
20
21 11, 2008 letter, counsel’s office received a telephone call advising us to contact Gloria
22 Quinones to obtain a copy of the report. Counsel’s office sent a fax dated December
23 17, 2008 to Ms. Quinones requesting a copy of the investigative report and forwarding
24
a copy of the letter previously sent to Mr. Williams.
25
3
1 5. On December 23, 2008, counsel undersigned served Notice of
2 Claims on behalf of the Kelly family and Mr. Kelly’s estate. The Notice of Claim
3
deadline was December 26, 2008. Counsel had no choice but to serve the Notice
4
without receiving any information from the ADOC pertaining to Sean’s death.
5
6. On December 31, 2008, undersigned counsel’s office received a
6
letter from Kelly Dudley, a paralegal at ADOC, which acknowledged the request for
7
8 investigative reports and stated that counsel will be notified when the information
9 becomes available.
10 7. In an effort to obtain any relevant information, counsel paid the
11
sum of $205 to obtain the inmate master file of Sean Kelly. There was no information
ATTORNEYS AT LAW
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in the master file pertaining to the circumstances surrounding Sean’s death.
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8. On April 20, 2009, the Complaint in this matter was filed.
14
15 Undersigned counsel filed the Complaint to gain the litigation privilege of discovery.
16 Based on undersigned’s knowledge of the ADOC policies and procedures,
17 undersigned counsel knew the report would already have been completed.
18 9. On June 11, 2009, the Defendants filed a Motion to Dismiss.
19
10. On June 15, 2009, counsel undersigned e-mailed defense counsel
20
inquiring how the Defendants could file a motion to dismiss arguing “insufficient
21
facts” when such facts had been purposely withheld from the Plaintiffs.
22
23 11. On June 17, 2009, undersigned counsel received a letter from
24 Kelly Dudley of the ADOC stating that the administrative investigation was
25 completed and the redacted report was available for pick up.
4
1 12. On June 18, 2009, undersigned counsel obtained a copy of a
2 significantly-redacted copy of the ADOC Administrative Investigative Report relating

3
to the death of Sean Kelly.
4
13. The investigative report indicates that the administrative
5
investigative unit of ADOC completed and forwarded the investigative report to John
6
Hallahan, Deputy Director, Operations, of ADOC on October 22, 2008.
7
8 B. Facts As Known To Plaintiffs Prior To June 18, 2009
9 1. On or about November 14, 2001, Sean Kelly began serving a 9-

10 year prison term for possession of dangerous drugs and conspiring to promote prison
11
contraband and was placed in the custody and care of the Arizona Department of
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Corrections. Sean initially was incarcerated in the Arizona State Prison Complex,
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Douglas facility, a correctional institution operated by the Arizona Department of
14
15 Corrections.
16 2. Upon information and belief, shortly after he began serving his
17 sentence, Sean became a target of a white supremacist gang which had members in
18 factions throughout the Arizona state prison system. He was asked by members of this
19
gang to kill another prisoner. When he refused, he became their target. The threats
20
upon his life were significant enough for him to be transferred to a prison in
21
Oklahoma.
22
23 3. In approximately July of 2007, Sean was transferred back to
24 Arizona to the Arizona State Prison Complex in Winslow. The reason for his transfer
25
5
1 is unknown to Plaintiffs. Upon information and belief, the threats to his life and well-
2 being began immediately thereafter.

3
4. On approximately January 8, 2008, Sean was transferred to
4
Arizona State Prison Complex - Lewis. On June 29, 2008, upon information and
5
belief, two prisoners, who were a part of the white supremacist gang but were not
6
housed in the same unit as Sean, were allowed to go into the Morey Unit where Sean
7
8 was housed. These prisoners went into Sean’s cell and brutally stabbed him to death.
9 C. Facts As Known To Plaintiffs Subsequent To Receiving Redacted

Investigative Report from ADOC on June 18, 2009
10
11 1. On March 30, 2002, Sean requested Protective Segregation at the

ASPC-Douglas/Mohave Unit as he had been threatened by another inmate. He was

ATTORNEYS AT LAW
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(602) 277-3000
13 asked to assault/shank another prisoner and was told that if he refused this request, he
14 would be assaulted and his lightning bolt tattoo would be removed by force. The
15
name of the inmate who threatened Sean is unknown to Plaintiffs at this time.
16
2. Sean refused this inmate’s request and as a result, became a target
17
of the inmate’s white supremacist gang, The Aryan Brotherhood, which has members
18
19 in factions throughout the Arizona state prison system.
20 3. This inmate was placed on Sean’s Do-Not-House-With
21 (“DNHW”) list, and Sean was placed on the inmate’s DNHW list.
22
4. At the time of Sean’s murder, this inmate was housed at the same
23
unit where Sean was housed, the ASPC-Morey Unit. Upon information and belief,
24
this inmate was one of the two who stabbed Sean to death.
25
6
1 5. On May 10, 2002, Sean was placed at ASPC-Yuma/Cheyenne
2 Unit as an alternative to Protective Segregation. Five days later, Sean was assaulted.
3
6. Sean again requested Protective Segregation stating he had been
4
assaulted because of his earlier refusal to carry out the request that was made of him at
5
the ASPC-Douglas/Mohave Unit. The inmate who assaulted him was also a member
6
of the Aryan Brotherhood.
7
8 7. On June 12, 2002, Sean was transferred to ASPC-Safford/Tonto
9 Unit as an alternative to Protective Segregation. Just two days later, Sean requested
10 Protective Status again because he was threatened on the yard by another inmate. This
11
inmate was placed on Sean’s DNHW list, and on July 17, 2002, Sean was transferred
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to ASPC-Florence/East Unit as an alternative to Protective Segregation.
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8. On July 17, 2002, Sean refused to be housed at ASPC-
14
15 Florence/East and requested Protective Segregation because an Aryan Brotherhood
16 member, whom he had previous problems with, was housed there. Kelly stated he
17 thought his life would be in danger.

18 9. His request for Protective Segregation was denied; however, on
19
August 22, 2002, Sean was transferred to ASPC-Lewis/Barchey Unit as an alternative
20
to Protective Segregation.
21
10. Sean was eventually transferred to a prison out of state, where he
22
23 had no requests for Protective Segregation and remained there until his July 6, 2007
24 transfer back into the Arizona State Prison system.
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1 11. On April 7, 2008, Sean was transferred to the ASPC-
2 Lewis/Morey Unit, where inmates on his DNHW list were housed.

3
12. On June 29, 2008, a multi-faith religious service was being held
4
on the Red Yard at the Morey Unit. The service concluded and the attending inmates
5
began returning to their assigned cells.
6
13. There were only three officers available on the Red Yard to
7
8 escort the inmates to their appropriate cells and ensure the inmates entered the correct
9 housing unit, and no officer was posted at the scanner in front of the building to search
10 for contraband prior to the inmates entering the cell block.
11
14. No officers were available to secure the returning inmates into

ATTORNEYS AT LAW
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Housing Unit 3C/D which was where Sean was housed. The available floor officers
(602) 277-3000
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were securing inmates in Housing Unit 3A/B and left Sean Kelly’s unit to be secured
14
15 by the Control Room Officer. The Control Room Officer was the only officer present
16 in Sean’s Housing Unit and was unable to leave the control room to introduce a
17 physical presence in the pods.

18 15. During the process of returning from the multi-faith service, two
19
inmates who were not housed in Housing Unit 3C/D, passed through the unmonitored
20
metal detector with three metal shanks and entered into Housing Unit 3C/D and into
21
Sean Kelly’s cell.
22
23 16. The two inmates, one being a member of the Aryan Brotherhood
24 on Sean’s DNHW list, and the other a member of the Skinhead group, brutally
25 murdered Sean. Sean was stabbed no less than 116 times.
8
1 17. Upon information and belief, approximately 19 minutes passed
2 between the time the inmates entered the Housing Unit 3C/D and the time Sean was
3
found dead. No officers noticed that these inmates were in the wrong housing unit
4
until after Sean was stabbed over 116 time and the offenders were on there way out of
5
Housing Unit 3C/D.
6
II. LEGAL ARGUMENT
7
8 A. Motion to Dismiss Standard
9 The Defendants have argued that “conclusory allegations unsupported by facts

10 or insufficient to state a 42 U.S.C. § 1983 claim and insufficient to defeat a Rule
11
12(b)(6) dismissal” and further argued that “to survive a motion to dismiss for failure
ATTORNEYS AT LAW
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to state a claim, a plaintiff must allege enough facts to state a claim for relief that is
(602) 277-3000
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plausible on its face.” See Motion to Dismiss, Docket No. 22. While the Plaintiffs do
14
15 not disagree with the motion to dismiss standard as set forth by the Defendants,
16 Plaintiffs submit that they have been intentionally and deliberately prohibited from
17 obtaining the facts in this case. The Plaintiffs have been requesting information from
18 the ADOC relative to Sean Kelly's death since December 4, 2008. Plaintiffs were
19
advised on December 31, 2008 that the investigative report would be made available
20
to Plaintiffs when the report was available. The report was available on October 22,
21
2008. The report was not disclosed to the Plaintiffs until June 18, 2009.
22
23 The Plaintiffs amended their Complaint to assert the additional facts which
24 have been disclosed to the Plaintiffs to date. See Docket No. 21. In said Amended
25 Complaint, the Plaintiffs have asserted additional facts to support their Complaint
9
1 against the Defendants. However, all of the facts still have not been disclosed to the
2 Plaintiffs as the investigative report that was received was significantly redacted.
3
Exhibit “A” attached hereto and incorporated herein by reference is a true and correct
4
copy of the redacted investigative report. Further, the Plaintiff's still do not know who
5
murdered Sean Kelly.
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B. Count I - Section 1983 Claim
7
8 1. The Personal Representative of Sean Kelly’s estate is the
appropriate Plaintiff for this claim
9
The Defendants are correct in their assertion that Plaintiffs Eileen Kelly
10
11 (mother) and Donna Ashcroft, as conservator for Athena Ashcroft (daughter), must be
dismissed from Count 1 and that the proper party Plaintiff is Sean Kelly’s estate.
ATTORNEYS AT LAW
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(602) 277-3000
13 2. The Eleventh Amendment Does Not Bar Plaintiffs’ Claims

Against Schriro and Larson
14
15 The Plaintiffs agree that the Eleventh Amendment precludes its § 1983
16 claim against the State of Arizona, however, all remaining Defendants are being sued
17 in their individual capacities. The Plaintiffs have amended their Complaint to include
18 the marital communities of Schriro and Larson to clarify its position that Schriro and
19
Larson are being sued in their individual capacities.
20
3. Plaintiff’s Have Stated a Section 1983 Claim Against ADOC
21 Director Schiro and Warden Larson in their Individual
Capacities
22
23 In Farmer v. Brennan, 11 U.S. § 825 (1994), the Supreme Court held
24 that the Constitution gives inmates a right to be protected from assault by other
25 inmates. For convicted inmates, this right is based on the cruel and unusual
10
1 punishments clause of the Eighth Amendment. A jail or prison official can only be
2 held liable under the Constitution for an inmate-on-inmate assault, if he or she had a
3
reasonable opportunity to prevent it from happening in the first place. If the official
4
had no reason to expect that the assault happened, he or she is not liable under the
5
Constitution. The Plaintiffs must prove that Sean Kelly was exposed to a substantial
6
risk of harm. A substantial risk of harm can arise from a single factor (e.g. a very
7
8 dangerous inmate placed in your cell) or a combination of factors (e.g., inadequate
9 monitoring by jailers, and ready availability of weapons and inadequate classification

10 policies). Farmer at page 843.
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Failure to protect claims require a showing of deliberate indifference. A

ATTORNEYS AT LAW
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plaintiff must show that the officials who he is suing actually knew about the
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substantial risk of serious harm to which he was exposed and failed to respond
14
15 reasonably. Farmer at 843 and 44. It is especially important for an inmate to inform
16 officials about specific threats to his safety. To be held liable for failing to protect an
17 inmate, an official must not only know about a substantial risk of serious harm, but
18 also fail to respond reasonably.
19
Deliberate indifference is the failure to take reasonable protective measures in
20
response to a known risk of assault.
21
Some inmates are obvious targets or “prey” for assaults by others. Some
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23 inmates may belong to a target group and it is important for an inmate to tell officials
24 that he is concerned about his safety. Courts may not find officials deliberately
25 indifferent unless the inmate personally puts them on notice of his vulnerability and
11
1 asks for protection. Officials may respond to the inmate's request by placing him in
2 protective custody.
3
Just as some inmates are “prey,” other inmates are predators with a violent
4
background who are likely to assault their fellow inmates. There tend to be a lot of
5
dangerous people in jail and prison officials do not have to isolate every inmate who
6
has the capacity for violence. On the other hand, officials may not ignore an inmate’s
7
8 history of violence behind bars. They may not place a “predator” in a position where
9 he can continue to prey on other inmates. Frett v. Government of Virgin Islands, 839
10 F.2d 968, 978 - 79 (3d Cir. 1988).
11
If a jail or prison official learns that an inmate or group of inmates has

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threatened to harm someone else, the official must take reasonable measures to protect
(602) 277-3000
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the threatened inmate. If the official ignores the reported threat, he is deliberately
14
15 indifferent. Flint v. Kentucky Department of Corrections, 270 F.2d 340, 353-554 (6th
16 Cir. 2001).
17 While almost anything in jail or prison can become a weapon, it is particularly

18 dangerous for inmates to have unsupervised access to tools or similar items that can be
19
easily converted into weapons. Officials must take reasonable measures to prevent
20
this from happening. Some courts have held that the failure of officials to implement
21
a tool control policy constitutes deliberate indifference to the safety of inmates. Tilly
22
23 v. Owens, 719 F. Supp. 1256, 1276 (W.D. Pa. 1989). If officials know that certain
24 inmates have “shanks” or other weapons, but fail to take those weapons away, the
25 officials are deliberately indifferent to the risk that those weapons will be used to
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1 assault other inmates. Smith v. Arkansas Department of Corrections, 103 F.3d 637,
2 644 (8th Cir. 1996).

3
Overcrowding is not, by itself, a constitutional violation. Only when
4
overcrowding lends to the deprivation of a basic human need does it violate the
5
Constitution. Protection from assault by other inmates, however, is a basic human
6
need. A plaintiff may challenge overcrowding in jail or prison if he can show that it
7
8 caused an excessive risk of violence. Smith v. Arkansas Department of Corrections,
9 103 F.2d 637, 644 - 45 (8th Cir. 1996). A related problem is understaffing. Jails and
10 prisons do not always employ enough guards to provide adequate safety to inmates
11
held there. As a result, there are too many inmates for guards to supervise and control.
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When inmates go unsupervised, there is a greater risk that some inmates will attack
(602) 277-3000
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others. Id.
14
15 Defendants knew that Sean Kelley had been threatened and targeted by other
16 inmates. In fact, they knew that Sean’s child's life had been threatened previously by
17 one of the inmates who murdered him. Upon information and belief, this particular
18 inmate was on Sean's DNHW list. Yet the Defendants allowed this inmate to access a
19
yard that led directly to Sean’s housing unit and failed to control and supervise his
20
burden on the yard. Defendants, in direct violation of the ADOC Policy 701.5 and
21
Yard Security Post Orders, failed to monitor the activities of the murderous inmates
22
23 on the yard. Furthermore, in direct violation of the Department Policies and Post
24 Orders, Defendants failed to escort these inmates to their appropriate Housing units
25 thus allowing the murderous inmates to enter Sean Kelley's housing unit. Defendants
13
1 allowed inmates to pass through metal detectors without security staff present, also in
2 violation of post orders. In violation of Department policies, Defendants failed to

3
provide the appropriate level of staff needed to follow Post Orders and ensure the
4
safety of Sean Kelly. The decision to under-staff the prison was made by both
5
Defendants Schriro and Larson. This decision was in direct contradiction of existing
6
policies regarding inmate safety. Since Defendants Schriro and Larson’s decisions
7
8 were in violation of previously established policies, Defendants Schriro and Larson
9 are liable in their individual capacities.

10 The Plaintiffs have set forth facts in their original Complaint and in their
11
Amended Complaint which were discovered as of June 18, 2009. These facts clearly
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establish constitutional violations. Plaintiffs submit that a dismissal of their claims
(602) 277-3000
13
against Defendants Schriro and Larson would be premature at this point and time.
14
15 The Plaintiffs should be permitted to conclude discovery to ferret out the facts in this
16 matter. The ADOC has intentionally and deliberately prevented the Plaintiffs from
17 obtaining the information they need to prosecute this matter.

18 Furthermore, notice pleading remains the rule in federal courts, requiring only
19
“a short and plain statement of the claim.” See Fed. R. Civ. P. 8(a). While a
20
plaintiff’s claim to relief must be supported by sufficient factual allegations to be
21
“plausible” under Twombly, nothing requires a plaintiff to prove his or her case in the
22
23 pleadings. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) Plausibility, as
24 the Supreme Court’s recent elaboration in Ashcroft v. Iqbal makes clear, is a highly
25 contextual enterprise - - dependent on the particular claims asserted, their elements,
14
1 and the overall factual picture alleged in the complaint. 129 S. Ct. 1937 (2009);
2 Maldonado v. Fontanes, __F.3d___, 2009 WL 1547737, at *3 (1st Cir. 2009) (“[T]he

3
court’s assessment of the pleadings is context-specific, requiring the reviewing court
4
to draw on its judicial experience and common sense.”) (internal quotation marks
5
omitted).
6
In Iqbal, a deeply divided court rejected the plaintiff’s discrimination claims
7
8 against high-ranking Bush administration officials because he had not offered
9 sufficient factual allegations to plausibly support the inference of discriminatory

10 intent. Id. at 1952. Iqbal’s complaint failed to supply enough supporting facts to
11
nudge his claim of purposeful discrimination “across the line from conceivable to
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plausible.” Id. (citing Twombly, 550 U.S., at 570). Ever-present in the majority’s
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opinion was the fact that these high-ranking officials faced an unprecedented attack on
14
15 American soil, “perpetrated by 19 Arab Muslin hijackers.” Iqbal, 129 S. Ct. at 1951.
16 In the absence of additional facts suggesting discriminatory purpose, the majority
17 found Iqbal’s claims drowned out by the “obvious alternative explanation” – namely,
18 that Iqbal’s arrest was justified by a “nondiscriminatory intent to detain aliens . . . who
19
had potential connections to those who committed terrorist acts.” Id. at 1951.
20
Reaching their own conclusion about the defendants’ state of mind, the majority
21
simply found Iqbal’s claim improbable.
22
23 Plausibility, in this view, is a relative measure. Allegations become
24 “conclusory” where they recite only the elements of the claim and, at the same time,
25 the court’s commonsense credits a far more likely inference from the available facts.
15
1 See Maldonado, 2009 WL 1547737, at *3. This analysis depends on the full factual
2 picture, the particular cause of action, and the available alternative explanations. Yet
3
in keeping with Rule 8(a), a complaint should only be dismissed at the pleading stage
4
where the allegations are so broad, and the alternative explanations so overwhelming
5
that the claims no longer appear plausible. See Thomas v. Rhode Island, 542 F.3d
6
944, 948 (1st Cir. 2008) (juxtaposing Rule 8(a)’s fair notice and plausibility
7
8 requirements, as interpreted in Twombly).
9 The factual allegations as asserted by Plaintiffs raise plausible inferences.

10 Maldonado-Denis v. Castillo-Rodriquez, 23 F.3d 576, 582 (1st Cir. 1994) (holding that
11
a supervisor may be liable for the “foreseeable consequences” of his conduct or policy
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judgments, even without actual knowledge of a civil rights violation, if he would have
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known but for his “deliberate indifferences or willful blindness”).
14
15 4. Schriro and Larson Are Not Entitled to Qualified Immunity
16 Plaintiffs have stated facts that set out sufficient allegations to show
17 Schriro and Larson’s personal involvement in unconstitutional conduct. The doctrine

18 of qualified immunity does not shield the Defendants because the facts do allege a
19
sufficient connection between the conduct of the Defendants and Sean Kelly’s death
20
to state the elements of an Eighth Amendment § 1983 claim against them. The
21
Defendants were aware that during Sean Kelly’s incarceration he had requested
22
23 protective segregation due to receiving threats from other inmates. The Defendants
24 placed several inmates on Defendants DNHW list. The Defendants were aware that
25 Sean Kelly had been assaulted while incarcerated. The Defendants were aware that
16
1 during his incarceration Sean Kelly thought he was in danger for his life. The
2 Defendants often transferred Sean Kelly to various prison units as an alternative to

3
protective segregation. The Defendants were aware that on April 7, 2008, Sean Kelly
4
was transferred to the ASPC-Lewis/Morey Unit where inmates on his DNHW list
5
were housed. The Defendants were aware that there were not enough correctional
6
services officers assigned to the unit to ensure the safety of the inmates. As a result of
7
8 the unit being short staffed, there were only three officers available on the Red Yard to
9 escort the inmates to their appropriate cells and ensure the inmates entered the correct
10 housing unit, and no officer was posted at the scanner in front of the building to search
11
for contraband prior to the inmates entering the cell block. No officers were available
ATTORNEYS AT LAW
12
to secure the returning inmates into Housing Unit 3C/D which was where Sean was
(602) 277-3000
13
housed. The available floor officers were securing inmates in Housing Unit 3A/B and
14
15 left Sean Kelly’s unit to be secured by the Control Room Officer. The Control Room
16 Officer was the only officer present in Sean’s Housing Unit and was unable to leave
17 the control room to introduce a physical presence in the pods. During the process of
18 returning from the multi-faith service, two inmates who were not housed in Housing
19
Unit 3C/D, passed through the unmonitored metal detector with three metal shanks
20
and entered into Housing Unit 3C/D and into Sean Kelly’s cell. The two inmates, one
21
being a member of the Aryan Brotherhood on Sean’s DNHW list, and the other a
22
23 member of the Skinhead group, brutally murdered Sean. Sean was stabbed no less
24 than 116 times. Upon information and belief, approximately 19 minutes passed
25 between the time the inmates entered the Housing Unit 3C/D and the time Sean was
17
1 found dead. No officers noticed that these inmates were in the wrong housing unit
2 until after Sean was stabbed over 116 time and the offenders were on there way out of
3
Housing Unit 3C/D.
4
The Defendants claim that Plaintiffs should not be allowed to proceed with
5
discovery in the hopes of obtaining evidence to rebut Defendants’ claim to qualified
6
immunity is disingenuous, especially in light of what has been discovered in the
7
8 investigative report that was disclosed on June 18, 2009. Clearly, the facts, as set
9 forth in the report, do necessitate discovery.

10 C. Counts II and III – Wrongful Death and Gross Negligence
11
Plaintiffs may pursue state law claims against the State.

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III. CONCLUSION
(602) 277-3000
13
For the foregoing reasons, Plaintiffs request that this Court grant the
14
15 Defendants’ Motion to Dismiss as to Plaintiffs’ Eileen Kelly and Donna Ashcroft
16 dismissal from Count I and the dismissal of Defendants Schriro and Larson from the
17 state actions set forth in Counts II and III. The remainder of Defendants’ Motion to
18 Dismiss should be denied.
19
RESPECTFULLY SUBMITTED this 27th day of August, 2009.
20
LORONA STEINER DUCAR, LTD
21
BY: /s/ Jess A. Lorona
22
Jess A. Lorona
23 3003 North Central Avenue, Suite 1500
Phoenix, Arizona 85012-2909
24 Telephone: (602) 277-3000
Facsimile: (602) 277-7478
18
1 I hereby certify that on August 27, 2009, I electronically transmitted the

2 attached document to the Clerk’s Office using the CM/ECF system for filing and
transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
3
TERRY GODDARD
4 Attorney General
Michael Brodsky, Esq.
5 Michele L. Forney, Esq.
6 1275 W. Washington
Phoenix, Arizona 85007-2997
7 Attorneys for Defendant
8
/s/ Paula Schultz
9
10
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Plaintiffs Response To Dismiss

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Case 2:09-cv-00824-DGC Document 23 Filed 08/27/09 Page 1 of 19

1 LORONA STEINER DUCAR, LTD.

11 Kelly; Lynn Butcher as the DEFENDANTS’ MOTION TO DISMISS

PHOENIX, ARIZONA 85012-3909

Representative of the Estate of Sean FIRST AMENDED COMPLAINT

13 Plaintiffs, (Assigned to the Honorable

24 and incorporated herein by this reference.

1 RESPECTFULLY SUBMITTED this 27th day of August, 2009.

PHOENIX, ARIZONA 85012-3909

1 MEMORANDUM OF POINTS AND AUTHORITIES

3 A. Facts Setting Forth the Plaintiffs’ Attempts to Obtain Facts to State

7 of Corrections (hereinafter referred to as “ADOC”) pertaining to the death of Sean

PHOENIX, ARIZONA 85012-3909

pertaining to Sean’s death.

13 3. On December 11, 2008, counsel’s office called the Criminal

1 5. On December 23, 2008, counsel undersigned served Notice of

PHOENIX, ARIZONA 85012-3909

16 Based on undersigned’s knowledge of the ADOC policies and procedures,

1 12. On June 18, 2009, undersigned counsel obtained a copy of a

2 significantly-redacted copy of the ADOC Administrative Investigative Report relating

9 1. On or about November 14, 2001, Sean Kelly began serving a 9-

PHOENIX, ARIZONA 85012-3909

16 2. Upon information and belief, shortly after he began serving his

2 being began immediately thereafter.

9 C. Facts As Known To Plaintiffs Subsequent To Receiving Redacted

11 1. On March 30, 2002, Sean requested Protective Segregation at the

PHOENIX, ARIZONA 85012-3909

ASPC-Douglas/Mohave Unit as he had been threatened by another inmate. He was

20 3. This inmate was placed on Sean’s Do-Not-House-With

1 5. On May 10, 2002, Sean was placed at ASPC-Yuma/Cheyenne

PHOENIX, ARIZONA 85012-3909

17 thought his life would be in danger.

24 transfer back into the Arizona State Prison system.

1 11. On April 7, 2008, Sean was transferred to the ASPC-

2 Lewis/Morey Unit, where inmates on his DNHW list were housed.

PHOENIX, ARIZONA 85012-3909

14. No officers were available to secure the returning inmates into

17 physical presence in the pods.

25 murdered Sean. Sean was stabbed no less than 116 times.

1 17. Upon information and belief, approximately 19 minutes passed

9 The Defendants have argued that “conclusory allegations unsupported by facts

PHOENIX, ARIZONA 85012-3909

PHOENIX, ARIZONA 85012-3909

13 2. The Eleventh Amendment Does Not Bar Plaintiffs’ Claims

9 monitoring by jailers, and ready availability of weapons and inadequate classification

PHOENIX, ARIZONA 85012-3909

Failure to protect claims require a showing of deliberate indifference. A

PHOENIX, ARIZONA 85012-3909

If a jail or prison official learns that an inmate or group of inmates has

17 While almost anything in jail or prison can become a weapon, it is particularly

2 644 (8th Cir. 1996).

PHOENIX, ARIZONA 85012-3909

2 violation of post orders. In violation of Department policies, Defendants failed to

9 are liable in their individual capacities.

PHOENIX, ARIZONA 85012-3909

17 obtaining the information they need to prosecute this matter.

25 contextual enterprise - - dependent on the particular claims asserted, their elements,

2 Maldonado v. Fontanes, __F.3d___, 2009 WL 1547737, at *3 (1st Cir. 2009) (“[T]he

9 sufficient factual allegations to plausibly support the inference of discriminatory

PHOENIX, ARIZONA 85012-3909

16 In the absence of additional facts suggesting discriminatory purpose, the majority

9 The factual allegations as asserted by Plaintiffs raise plausible inferences.

2 Maldonado v. Fontanes, F.3d_, 2009 WL 1547737, at *3 (1st Cir. 2009) (“[T]he