United States District Court, D. Arizona
K. Duncan United States Magistrate Judge
Court's most recent monthly Status Hearing on July 14,
2017, Plaintiffs presented four inmate witnesses to provide
testimony regarding their experience with the open clinic
process, removal of HNR (Health Needs Request) boxes from
open clinic facilities, and the provision of healthcare at
Arizona Department of Corrections prisons. Other inmates
provided written statements concerning the same. During each
inmate's testimony, the Court addressed the witness'
reservations about testifying due to a fear of potential
retaliation by prison staff. Each inmate had testified about
a fear of retaliation and the Court directed them to inform
their counsel if prison officials took retaliatory action. On
Thursday July 20, Plaintiffs filed a Notice regarding
harassment and retaliation regarding class members. (Doc.
2190) The Notice recounts specific alleged retaliatory
• The Deputy Warden at Florence-South Unit telling class
member witness Ronald Oyenik that he [Oyenik] “accused
me of taking all of your property, ” when no such
allegation had been made. This conversation was loud and
could be heard by other inmates.
• Mr. Oyenik also reported that inmates in ADA dorms
were informed that if they had difficulty ambulating to the
open clinic's new location that they would be moved to
buildings closer to the clinic, which are not ADA-accessible.
Because the majority of inmates did not want to move,
presumably because they are not ADA-compliant, the DW and the
ADW required them to sign waivers that they accepted their
current housing location.
• Mr. Oyenik is concerned that prison staff members, by
attempting to forcibly move some inmates, are attempting to
cast blame on him for these moves. Mr. Oyenik also is
concerned that his medication will not be renewed when it
expires in the near future.
• Angela Ashworth also reported events that she felt
were retaliatory, including her bunkmate Donna Scheid's
transfer to another cell-with an inmate known to be a gang
member with violent tendencies and disciplinary
infractions-after Ms. Scheid wrote a statement that was
admitted as evidence at the July 14 Hearing.
• Ms. Ashworth was also approached by an officer who
indicated that he spoke about Ms. Ashworth's June 5, 2017
incident and indicated that “Sergeant Coleman and I
have discussed it and we agreed that we saw nothing wrong
with Ashworth.” Ms. Ashworth interpreted this statement
as a decision to “close rank” and would deny the
multiple witness reports that, indeed, there was something
wrong with Ms. Ashworth and yet no action was taken.
• Ms. Ashworth further reported that a pregnant inmate
was moved into her cell after her bunkmate was transferred.
The effect of this move is that on particularly hot nights
when the pregnant inmate is moved to sleep in an
air-conditioned room, Ms. Ashworth is alone. Twice prison
officials have entered her cell at night to “take the
temperature” when that had never happened previously.
Ms. Ashworth feels vulnerable being left alone in her cell at
night and, because her prison job is at night, is concerned
that leaving her cell empty on those days exposes her to loss
of property or false allegations of possessing contraband.
Court held an emergency hearing to discuss the allegations on
July 21, 2017. In correspondence with Plaintiffs' Counsel
and at the hearing, Defendants disputed Mr. Oyenik's
conversation with the Deputy Warden and the motives behind
staff members' actions. However, Defendants do not deny
that Ms. Ashworth's bunkmate was moved, that she is
sleeping alone when her pregnant bunkmate is sleeping
elsewhere, or that ADA inmates in the Florence South Unit
signed waivers of their right to move closer to the open
these developments strongly suggest retaliatory action after
the affected inmates provided testimony or written statements
at the July 14 Hearing. Cell transfers, loss of property, and
spreading potentially damaging information to other inmates
are all adverse actions. Moreover, the testifying inmates
plainly engaged in protected conduct by either testifying or
submitting written statements to the Court.
discussed at the hearing, the temporal proximity between
their protected conduct and the adverse actions are too close
in time to reasonably be viewed as anything other than
retaliatory. Pratt v. Rowland, 65 F.3d 802, 808 (9th
Cir. 1995) (“timing can properly be considered as
circumstantial evidence of retaliatory intent”);
Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310,
1316 (9th Cir. 1989) (Retaliatory motive can be inferred from
the timing and nature of the events); Mt. Healthy City
Board of Ed. v. Doyle, 429 U.S. 274, 285-86 (1977). The
Court further finds that these actions “would chill or
silence a person of ordinary firmness from future First
Amendment activities.” Mendocino Envtl. Center v.
Mendocino Co., 192 F.3d 1283, 1300 (9th Cir. 1999).
none of the justifications Defendants presented to the Court
established a legitimate penological interest. Indeed, with
respect to Ms. Scheid's cell transfer, Defendants offered
no rationale why she was selected to accommodate a third
party inmate's need for a cell reassignment.
short, the Court expressed its belief that no retaliation
would flow from the inmates' testimony at the July 14
Hearing. It does not appear that message reached prison
staff. The Court will therefore grant Plaintiffs' request
for a Court order formally directing that no retaliatory
actions take place.
THEREFORE ORDERED directing Defendants and Counsel for
Defendants that no actions be taken that harass, intimidate,
or otherwise retaliate against the witnesses who have
provided the Court information, either via oral testimony or
written statements. This prohibition includes actions which
could reasonably be viewed as having a chilling effect on
witness testimony by ...