Case 3:08-cv-00115-BES-VPC Document 1 Filed 03/06/2008 Page 1 of 17

1 Amy Fettig (pro hac vice pending) Margaret Winter (pro hac vice pending)
2 THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC.
3 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005
4 Tel. (202) 393-4930; fax (202) 393-4931 afettig@npp-aclu.org
5 mwinter@npp-aclu.org

6 Lee Rowland ACLU OF NEVADA
7 NV Bar No. 10209 1280 Terminal Way, Suite 46
8 Reno, NV 89502 Tel (775) 786-1033; fax (775) 786-0805
9 rowland@aclunv.org

10 Allen Lichtenstein ACLU OF NEVADA
11 NV Bar No. 3992 3315 Russell Road, No. 222
12 Las Vegas, Nevada 89120 Tel (702) 433-2666; fax (702) 433-9591
13 alichtensteinlaw@aol.com

14 Stephen F. Hanlon (pro hac vice pending) HOLLAND & KNIGHT LLP
15 2099 Pennsylvania Avenue, N.W. Washington, D.C. 20006
16 Tel. (202) 955-3000; fax (202) 955-5564

17 Counsel for Plaintiffs

18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

19

DAVID RIKER, ROGER LIBBY, RICKY SECHREST

)

20 TERRENCE BROTHERS, JEFFREY HOSMER, MARK

)

WHITTINGTON on their own behalf and on behalf of

)

21 those similarly situated,

)

)

22

Plaintiffs,

)

) Docket No.____________

23

v.

)

) Class Action Complaint

24 JAMES GIBBONS, Governor of Nevada; ROSS MILLER,

)

Secretary of State of Nevada; CATHERINE CORTEZ MASTO, )

25 Attorney General of Nevada; HOWARD SKOLNIK, Director, )

Nevada Department of Corrections; ROBERT BANNISTER, )

26 Medical Director, Nevada Department of Corrections; and

)

E. K. MCDANIEL, Warden, Ely State Prison.

)

27

)

Defendants.

)

28 ______________________________________________________)

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1

CLASS ACTION COMPLAINT

2

FOR DECLARATORY AND INJUNCTIVE RELIEF

3 INTRODUCTION
4 1. The Plaintiffs are prisoners confined in Ely State Prison (ESP), a maximum security prison
5 in Ely, Nevada, housing 1,000 men, including death row prisoners. Plaintiffs bring this class action
6 Complaint on their own behalf and on behalf of those similarly situated, seeking relief from
7 deprivations of medical care at ESP. These deprivations are so extreme that they subject all the men
8 confined there to constant significant risk of serious injury, medical harm, premature death, and the
9 needless infliction of great physical pain and suffering.
10 2. Defendants’ actions, detailed herein, deny basic human needs, inflict unnecessary and
11 wanton pain and suffering, and put Plaintiffs and all those similarly situated at substantial risk of
12 physical injury, illness, and premature death, all in violation of Plaintiffs’ rights under the Eighth and
13 Fourteenth Amendments to the United States Constitution. Plaintiffs seek injunctive and declaratory
14 relief to remedy these ongoing violation of rights for themselves as well as for a class of those
15 similarly situated.
16 JURISDICTION AND VENUE
17 3. This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state law
18 of rights, privileges and immunities secured by the Constitution of the United States. The rights
19 sought to be redressed are guaranteed by the Eighth and Fourteenth Amendments to the United States
20 Constitution. The Court has federal question jurisdiction over this controversy under 28 U.S.C. §§
21 1331 and 1343.
22 4. Venue is proper in the District of Nevada under 28 U.S.C. § 1391. The Plaintiffs are
23 incarcerated there, the acts complained of occurred there, and the Defendants work there.
24 PARTIES
25 I. Plaintiffs
26 5. Plaintiff David Riker is a prisoner in the custody of the Nevada Department of Corrections
27 who is currently incarcerated in Ely State Prison.
28

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1 6. Plaintiff Roger Libby is a prisoner in the custody of the Nevada Department of Corrections 2 who is currently incarcerated in Ely State Prison. 3 7. Plaintiff Ricky Sechrest is a prisoner in the custody of the Nevada Department of Corrections 4 who is currently incarcerated in Ely State Prison. 5 8. Plaintiff Terrence Brothers is a prisoner in the custody of the Nevada Department of 6 Corrections who is currently incarcerated in Ely State Prison. 7 9. Plaintiff Jeffrey Hosmer is a prisoner in the custody of the Nevada Department of 8 Corrections who is currently incarcerated in Ely State Prison. 9 10. Plaintiff Mark Whittington is a prisoner in the custody of the Nevada Department of 10 Corrections who is currently incarcerated in Ely State Prison. 11 II. Defendants 12 11. Defendant James Gibbons is the Governor of the State of Nevada. As Governor, Gibbons 13 is the President of the Board of State Prison Commissioners (the “Board”), the state governmental 14 body responsible for oversight of all prisons in Nevada. As part of its oversight duties, the Board 15 receives semiannual reports from the State Health Officer on correctional facilities’ compliance with 16 the medical services standards established under Nevada statute. Defendant Gibbons is sued in his 17 official capacity. 18 12. Defendant Ross Miller is the Secretary of State of Nevada. As Secretary of State, Miller is 19 the Secretary of the Board of State Prison Commissioners, the state governmental body responsible 20 for oversight of all prisons in Nevada. Defendant Miller is sued in his official capacity. 21 13. Defendant Catherine Cortez Masto is the Attorney General of the State of Nevada. As 22 Attorney General, Cortez Masto is a member of the Board of State Prison Commissioners. 23 Defendant Cortez Masto is sued in her official capacity. 24 14. Defendant Howard Skolnik is the Director of the Nevada Department of Corrections 25 (NDOC). As Director, Skolnik is responsible for NDOC’s daily functioning and administration. 26 Under Nevada law, the Director of NDOC is also responsible for establishing standards for medical 27 services in prisons with the approval of the Board. Defendant Skolnik is sued in his official capacity. 28
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1 15. Defendant Robert Bannister, M.D. is the Medical Director for NDOC. As Medical Director,

2 Bannister is responsible for the administration and provision of medical care services to individuals

3 in NDOC’s custody. Dr. Bannister’s duties include ensuring the quality and adequacy of medical

4 care services provided to prisoners at ESP. He is sued in his official capacity.

5 16. Defendant E. K. McDaniel is the Warden of ESP. As Warden, McDaniel is responsible for

6 the daily functioning and administration of ESP, including the safe, secure and humane treatment

7 of all prisoners incarcerated there. He is sued in his official capacity.

8

FACTUAL ALLEGATIONS

9 I. Defendants Systematically Fail to Treat Prisoners’ Serious Medical Needs Causing Significant Injury and Unnecessary and Wanton Infliction of Pain.
10 17. ESP is a maximum security prison in Ely, Nevada designed to house over 1,000 men,
11 including death row inmates.
12 18. ESP lacks the most basic elements of an adequate prison health care system, including: ready
13 access to adequate medical care; a medical staff competent to examine prisoners and diagnose
14 illnesses; adequate, accurate, and up-to-date medical record-keeping; an ability to treat medical
15 problems or to refer prisoners to others who can, including reasonably speedy referrals and access
16 to other physicians within the prison, or to physicians or facilities outside the prison; and adequate
17 policies and procedures for responding to emergencies, including adequate facilities and staff to
18 handle emergencies within the prison.
19 19. Every man incarcerated at ESP is subject to the following policies and practices which
20 subject all of them to a significant risk of injury and unnecessary and wanton infliction of pain:
21 • Defendants’ policy and practice of refusing to provide necessary medical care for
22 serious medical needs, including injuries that a reasonable doctor or patient would
23 find important and worthy of comment or treatment, medical conditions that
24 significantly affect prisoners’ daily activities, and medical conditions involving
25 chronic or substantial pain;
26 • Defendants’ policy and practice of failing to maintain an adequate system to provide
27 prescription medication refills and to ensure continuity of treatment;
28

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1

• Defendants’ policy and practice of failing to make timely referrals for specialty care;

2

• Defendants’ policy and practice of failing to keep professionally adequate, accurate

3

and up-to-date medical records;

4

• Defendants’ policy and practice of failing to monitor prisoners with chronic

5

conditions adequately;

6

• Defendants’ policy and practice of refusing to treat chronic pain; and

7

• Defendants’ failure to ensure adequate coverage by a qualified physician at ESP.

8 20. This pervasive pattern of grossly inadequate medical care and the lack of basic elements of

9 an adequate medical care system creates a substantial risk of serious medical harm for every prisoner

10 incarcerated at ESP, and in fact causes actual harm to them. All prisoners at ESP are subject to the

11 same medical system, the same practices and policies, and the same systematic denial of care.

12 21. The grossly inadequate medical care at ESP deprives the Plaintiffs and all prisoners at

13 ESP of the minimal civilized measure of life’s necessities.

14 II. Defendants Are Aware of and Have Deliberately Failed to Take Adequate Action to End Medical Abuse at Ely State Prison.
15 22. In the spring of 2006 the Legislative Commission’s Subcommittee to Study Sentencing
16 and Pardons, Parole and Probation heard testimony from a number of Nevada citizens regarding
17 grossly inadequate medical care for seriously ill prisoners, in particular at ESP. As a result of this
18 hearing, on October 6, 2006, the Subcommittee sent a formal request to the Governor’s Office to
19 have the Executive Branch carry out an evaluation of the adequacy of inmate access to medical care
20 in Nevada.
21 23. The Governor’s Office took no action on the Legislature’s request.
22 24. The Board of State Prison Commissioners, whose membership is comprised of Defendants
23 Gibbons, Miller and Cortez Masto, has either failed to require semiannual reporting on the provision
24 of medical services in state correctional facilities or failed to review and take action on such reports.
25 The Board’s dereliction of duty in this matter has directly contributed to the current state of medical
26 abuse at ESP.
27 25. In May 2007, the American Civil Liberties Union (ACLU) informed Defendant Skolnik
28

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1 of the grave medical situation at ESP and the need for immediate intervention. 2 26. The ACLU retained a qualified medical expert, Dr. William K. Noel of Boise, Idaho, to 3 review prisoner medical records at ESP. Dr. Noel reviewed the medical records of the thirty-five 4 ESP prisoners that Defendant Skolnik made available for his review. 5 27. Dr. Noel prepared a report (the “Noel Report”), which was promptly provided to 6 Defendant Skolnik and Defendant Bannister, detailing his findings in particular cases and a summary 7 of his conclusions as to the status of the health care being provided to prisoners at Ely. 8 28. The Noel Report found overwhelming evidence that the grossest possible systemic 9 medical abuses at ESP are occurring and have been occurring there for years. Dr. Noel’s review of 10 the records found that not only are prisoners at ESP in imminent danger of death or grave irreparable 11 medical injury, but that they are being callously and wantonly subjected to needless physical agony 12 inflicted by grossly improper medical treatment. Moreover, the medical records themselves were 13 so poorly and unprofessionally maintained that he found the charting practices alone constitute a 14 danger to prisoners at ESP. The Noel Report also found that at least one man has already died an 15 unnecessary, slow and agonizing death and that in all likelihood there will be more such deaths and 16 unnecessary suffering if immediate systemic changes are not made in the provision of health care 17 at ESP. 18 29. Among the cases Dr. Noel reviewed is that of Patrick Cavanaugh, who was an insulin 19 dependent diabetic. He lived in the ESP infirmary for at least two years before his agonizing death 20 on April 10, 2006. 21 30. Mr. Cavanaugh’s cause of death was complications of Diabetes Mellitus, peripheral 22 gangrene of both lower extremities, hypertension, and congestive heart failure – all untreated. In the 23 best of circumstances (hospitalization, quick antibiotics, and early detection) gangrene has a 30% 24 mortality rate, but untreated, it is essentially 100% fatal. Mr. Cavanaugh received almost no 25 treatment for his illnesses, so his slow, painful death in the ESP infirmary was virtually assured. 26 Given the profound and unmistakable smell of putrefying flesh, there can be no question that every 27 medical provider and correctional officer in that infirmary was acutely aware of Patrick Cavanaugh’s 28 condition.
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1 31. Although Mr. Cavanaugh was an insulin-dependent diabetic, there is an order in his chart 2 stopping all his medications, including his insulin three years before his death. The medical order 3 is unsigned and there is no indication as to why this was done. Insulin was ordered sporadically 4 thereafter but for the next three years until his death was never given. 5 32. There is no indication that consideration was ever given to surgically removing the 6 gangrenous limbs. This procedure could have saved Mr. Cavanaugh’s life. Instead, ESP medical 7 staff left him to literally rot to death. 8 33. The records suggest that Mr. Cavanaugh “would not let” people come into his cell and 9 that he started refusing all medications except for aspirin. Even though progress notes in his chart 10 detail increasing paranoia and probable dementia, and even though gangrene is known to derange 11 the mind, there was no order to force life-sustaining medications. 12 34. Although a signed and notarized full, non-limited Power of Attorney Authorization 13 giving power to a guardian is present in his chart, there is no indication that Defendant McDaniel 14 or any other prison official ever contacted Mr. Cavanaugh’s guardian to advise her of Mr. 15 Cavanaugh’s medical condition and the need to administer medications without his consent because 16 of his incapacity, due to his dementia, to make medical decisions for himself. 17 35. Even during his last days before death, where an order is given for 5 mgs of morphine 18 sulfate every 4 to 5 hours to alleviate his terrible pain and suffering, there is no evidence that this 19 order was ever carried out. Patrick Cavanaugh was left to die in prolonged agony and to suffer an 20 extremely painful death without any palliative care. 21 36. The Noel Report also analyzed the case of Greg Leonard, who suffers from HIV, diabetes 22 mellitus, hypertension, two spinal injuries and a botched back surgery resulting in chronic, 23 debilitating pain, and kidney disease. Although Mr. Leonard suffers severe and chronic pain, he 24 receives almost no treatment for that pain. He is also an insulin-dependent diabetic who needs daily 25 sugar tests, but he has not received regular sugar checks since 2003. Moreover, when ESP medical 26 placed Mr. Leonard on insulin on April 2, 2003, he was left on metformin (oral agent to lower blood 27 sugar) even though the metformin can cause ketoacidosis in insulin-dependent diabetics. 28
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1 37. Like most ESP medical records, much of Mr. Leonard’s chart is illegible. Vital signs are 2 rarely taken or recorded. Like many ESP prisoners, Mr. Leonard also experienced major problems 3 with his multiple medications at ESP. He only received his HIV medications sporadically which 4 undermines their efficacy and puts him at great risk for resistance to entire classes of HIV 5 medications, thereby dangerously limiting treatment options. In addition, although Mr. Leonard’s 6 health requires tight control of his blood pressure, his prescriptions are rarely refilled in a timely 7 manner and he consistently runs out of his medications despite his vigilant efforts to obtain refills 8 without a lapse. 9 38. The Noel Report noted that it is astonishing that Mr. Leonard is still alive, given the 10 grossly inadequate medical treatment revealed in his records. 11 39. The Noel Report further examined the case of John Snow, an ESP prisoner who has 12 severe degenerative hip disease and requires surgery. An orthopedist recommended hip surgery for 13 Mr. Snow years ago but this procedure was denied as “not life-threatening.” If he is not given 14 surgery, Mr. Snow’s bones will eventually wear through his acetabulae, which are the large sockets 15 at the base of the hip bones into which the head of the femur fits. Because of Mr. Snow’s condition, 16 he is in constant, excruciating pain but he is given no pain medications. There is no medically 17 justifiable reason for leaving this man in agony. 18 40. The Noel Report reviewed the case of Michael Mulder, who suffered a stroke in prison. 19 He now suffers paralysis of his right side. His medical records indicate that Mr. Mulder had the 20 stroke on March 15, 2001 but he was not transferred to the infirmary in ESP until March 31, 2001. 21 There is no indication in the medical records that he received any acute treatment for his stroke. 22 41. Dr. Noel further reviewed Michael Mulder’s case with Defendant Bannister and met 23 with the patient during his visit to ESP. Mr. Mulder was obviously severely disabled by his stroke 24 and he has been given absolutely no physical therapy to repair that damage. His right side is 25 extremely impaired and he has difficulty walking and talking. His right arm, hand and fingers are 26 also hideously contorted in an agonizing position that will only grow worse without treatment. The 27 medical term for this disabling process is contracture. A simple brace could have prevented the 28 contracture that has already occurred. Without intervention Mr. Mulder’s arm may contract until it
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1 rips itself from its own socket and his hand could bend in upon itself until the wrist breaks. 2 42. Another case reviewed in the Noel Report is that of Robert Ybarra. Mr. Ybarra suffers 3 from deep vein thrombosis (DVT) and chronic, non-healing venous stasis ulcers on both lower legs 4 and ankles. DVT is extremely painful and Ybarra suffers severe and chronic pain that is not treated. 5 Mr. Ybarra’s chronic leg ulcers could be easily cured, but instead, Defendants have allowed his 6 open, draining, painful wounds to remain untreated for years. Without adequate treatment, he will 7 lose his feet and legs. 8 43. Dr. Noel emphasized in his report that the ESP records “show a system that is so 9 broken and dysfunctional that, in my opinion, every one of the prisoners at Ely State Prison who has 10 serious medical needs, or who may develop serious medical needs, is at enormous risk.” 11 44. On October 8-9, 2007, Dr. Noel met with the Medical Director of the Nevada Department 12 of Corrections, Defendant Dr. Robert Bannister. Dr. Noel discussed his findings with Defendant 13 Bannister who agreed to implement most of Dr. Noel’s treatment recommendations for the especially 14 urgent cases, and further stated that he was planning follow-up care for several of those prisoners. 15 45. Defendant Bannister unreasonably failed to implement most of these urgent treatment 16 recommendations, despite the obvious risks to the prisoners concerned. Defendant Skolnik was also 17 made aware of these urgent treatment needs but failed to require meaningful corrective action. 18 46. The gross medical abuse at ESP is further exacerbated because Defendant McDaniel, the 19 Warden at ESP, arbitrarily denies, delays and intentionally interferes with the medical decisions of 20 ESP medical staff. 21 47. On December 6, 2007, Defendants Gibbons, Miller, Cortez Masto and Skolnik received 22 copies of the Noel Report. 23 48. In response to the findings of the Noel Report, Defendants sent some of the seriously 24 ill prisoners at ESP to High Desert Correctional Center (“High Desert”) and allegedly hired a part25 time local doctor to work at ESP. 26 49. Recent reports from prisoners transferred to High Desert indicate that the prisoners are 27 still not receiving adequate medical care at that facility. 28 50. Recent reports from prisoners remaining at ESP reveal that grossly inadequate medical
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1 care continues unabated at ESP and many medically fragile prisoners remain at the facility without

2 access to necessary medical services.

3 51. All Defendants are aware of the systemic deficiencies in the provision of medical services

4 at ESP, have disregarded the excessive risks to prisoner health and safety caused by those

5 deficiencies, and have deliberately failed to take reasonable and timely steps to prevent the likely risk

6 of harm caused by those deficient medical services.

7 IV. Exhaustion of Administrative Remedies.

8 52. Plaintiffs have exhausted such administrative remedies as are available to them.

9

CLASS ACTION ALLEGATIONS

10 53. Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant

11 to Fed. R. Civ. P. 23(a) and (b)(2).

12 54. Plaintiffs seek to represent a class consisting of “all prisoners who are now or will in the

13 future be confined in Ely State Prison in Ely, Nevada” (hereinafter the “ESP Class”). As a result of

14 their confinement at ESP, the Plaintiffs and the ESP Class have been, are, and will be subjected to

15 violations of their constitutional rights as described in this Complaint. Plaintiffs represent a class

16 of persons seeking declaratory and injunctive relief to eliminate or remedy Defendants’ policies,

17 practices, acts, and omissions depriving them of those rights.

18 The Named Plaintiffs

19 55. Plaintiff David Riker suffers from rheumatoid arthritis (RA) and fibromyalgia. These

20 conditions cause debilitating and chronic pain. The California Department of Corrections, which

21 had custody of Mr. Riker before his incarceration by NDOC, extensively documented his medical

22 conditions including the treatment regimens which had proved effective to control his symptoms.

23 Those treatment regimens were stopped when he came to ESP in 2005.

24 56. When a doctor at NDOC’s Regional Medical Facility (RMF) reviewed Rikers’

25 records and conditions in August of 2006 and prescribed appropriate medications and ordered x-rays,

26 ESP medical staff did not follow her orders. Mr. Riker never received x-rays, and the medical staff

27 at ESP did not implement the order for a dosage increase in his medication. Instead, the Physician’s

28 Assistant at ESP, Max Carter, took him off the medications ordered by the RMF doctor and stated

10

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1 that Riker does not have rheumatoid arthritis, a condition previously treated and diagnosed by several 2 Rheumatologists. 3 57. Because Mr. Riker is not receiving adequate care for his RA, he suffers chronic and 4 severe protopathic nerve pain. ESP medical staff have told him that treating chronic pain is against 5 the policy of the prison. Such a policy or practice contradicts medical ethics and community 6 standards of care in the State of Nevada. Medical staff do not provide him with pain medication 7 other than very limited quantities of ibuprofen, which is completely inadequate for treating his 8 chronic pain. 9 58. Mr. Riker takes or has taken several medications that require careful monitoring for 10 possible side effects and complications, including Plaquinel and Methotrexate, but ESP medical staff 11 fail to perform the regular testing required to ensure that Mr. Riker is not harmed by his medications. 12 59. Mr. Riker’s medical records also demonstrate that he is prescribed medication that is 13 alternately stopped for no reason or the refills are not given on time so he is frequently forced to go 14 without them. For example, he has been prescribed Propanolol for both migraines and blood 15 pressure control and this medication is often discontinued suddenly. Propanolol is a beta blocker 16 and if stopped abruptly can cause a heart attack. 17 60. Mr. Riker is not receiving adequate treatment for his serious medical conditions at ESP 18 and he is at great risk of suffering and has suffered serious medical harm. 19 61. Plaintiff Roger Libby has a right inguinal hernia. Mr. Libby suffers a great deal of pain 20 and discomfort due to his hernia. The hernia is causing him problems with digestion and difficulty 21 with bowel movements. Over time his condition has gotten worse and the hernia is now the size of 22 a softball. The proper treatment for this condition is surgery if the patient can tolerate it. 23 62. Mr. Libby repeatedly requested surgery for his hernia, but Defendants have denied this 24 medically necessary treatment. His medical records show no medical reason why Mr. Libby should 25 not have a hernia operation. 26 63. The only treatment Defendants have provided for the hernia is a truss, which is not good 27 medical practice. It weakens the inguinal ring and musculature and over time makes the hernia 28 worse.
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64. Mr. Libby is not receiving adequate treatment for his serious medical condition at ESP
and he is at great risk of suffering and has suffered serious medical harm. 1 65. Plaintiff Rickey Sechrest has chronic intermittent Herpetic Iritis of his right eye which 2
has not been treated properly. If this disease is not treated promptly it leads to scarring and 3 blindness. Mr. Sechrest is at great risk of going blind due to the grossly inadequate medical care 4
provided by Defendants. 5
66. Mr. Sechrest’s liver enzymes were elevated for years, but Defendants did no testing for 6 7 Hepatitis C (HCV) until 2005. Although he tested positive for HCV, Defendants have never offered
8 him treatment for the disease. Indeed, there is no indication in his medical records that he has ever 9
been evaluated under a treatment protocol to determine whether or not he is a good candidate for 10 11 HCV treatment. Instead, he appears to be denied care for a potentially lethal disease without any
12 medical consideration. He is also frequently placed on steroids, which is contraindicated for patients 13
with HCV. 14 15 67. Mr. Sechrest’s medical file has no record of his age, the progress notes are extremely
16 scanty, and there is almost no mental health record. His medical chart is very incomplete for a man 17
with significant health problems. 18 19 68. Mr. Sechrest has experienced difficulties obtaining medications at ESP. In at least
20 one instance, ESP medical staff deliberately denied Mr. Sechrest his medications after he signed for 21
their receipt. 22 23 69. Mr. Sechrest is not receiving adequate treatment for his serious medical conditions at ESP
24 and he is at great risk of suffering and has suffered serious medical harm. 25
70. Plaintiff Terrence Brothers suffered from untreated open sores on his scalp for 26 27 approximately ten years at ESP. After years of requesting treatment without success, Mr. Brothers
28
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finally received a prescription shampoo that helped his condition in 2006. But due to the years of
1 inadequate treatment, his scalp is permanently scarred, discolored and a large keloid formed on the
2 back of his head. This keloid often swells, bleeds and is very painful. Despite repeated requests, 3
Defendants still refuse to treat this condition. 4 5 71. Mr. Brothers is not receiving adequate treatment for his serious medical condition at ESP
6 and he is at great risk of suffering and has suffered serious medical harm. 7
72. Plaintiff Jeffrey Hosmer suffers from chronic severe back and neck pain and numbness 8 9 on his left side. Despite repeated requests for care, Mr. Hosmer’s condition is not being adequately
10 treated. He frequently waits weeks or months to be seen by a doctor even though he is housed in 11
ESP’s infirmary. 12 13 73. Mr. Hosmer’s pain medication refills are often delayed for days or weeks at a time
14 causing him to suffer excruciating pain. 15
74. Mr. Hosmer is bi-polar and his medications for that condition are frequently interrupted 16 17 or discontinued thereby worsening his condition.
18 75. Mr. Hosmer is not receiving adequate treatment for his serious medical conditions at ESP 19
and he is at great risk of suffering and has suffered serious medical harm. 20 21 76. Plaintiff Mark Whittington requires thyroid replacement therapy and he has suffered
22 from chest and stomach pain and insomnia for months without adequate treatment despite repeated 23
requests for care. 24 25 77. While incarcerated at ESP, Mr. Whittington has experienced continual problems with
26 discontinued medications, dosages of prescribed medications running out, and on at least one 27
occasion he was given the wrong medication by medical staff and suffered serious physical and 28
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mental side effects as a result.

1 78. Mr. Whittington is not receiving adequate treatment for his serious medical conditions at

2 ESP and he is at great risk of suffering and has suffered serious medical harm.

3 79. The requirements of Rule 23(a) are met with regard to the putative class. Specifically:
4

5

a. There are currently over 1000 prisoners confined in ESP. The members of the class

6

are too numerous, and the membership of the class too fluid, to permit joinder of all

7 members.
8

9

b. Common questions of law and fact exist as to all class members. These common

10

questions include, but are not limited to, whether the systemically inadequate medical

11 care provided to ESP prisoners violates their rights under the Eighth and Fourteenth
12

13

Amendments to the United States Constitution.

14

c. The claims of the named plaintiffs are typical of those of the ESP Class as a whole.

15 They do not have access to minimally adequate medical care at ESP and are subject
16

17

to such grossly callous denial of basic medical care that every class member is either

18

suffering from, or at great risk of suffering, agonizing pain, injury and potentially

19 premature death.
20

21

d. Plaintiffs will fairly and adequately represent the interests of the class. The interests

22

of the Plaintiffs are consistent with those of the class, and they are represented by

23 counsel who are experienced in class action, civil rights, and prison conditions
24

25

litigation.

26 80. The further requirements of Rule 23(b)(2) are met in this case in that at all times
27 Defendants have acted and refused to act on grounds generally applicable to the class, thereby
28

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making appropriate final injunctive and declaratory relief with respect to the class as a whole.

1

CLAIM FOR RELIEF

2 Eighth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983
3 81. Defendants’ policies, practices, acts, and omissions place Plaintiffs and the ESP class at
4
5 unreasonable, continuing and foreseeable risk of serious medical problems.

6 82. Defendants have acted with deliberate indifference to Plaintiffs’ and the ESP class’s serious
7 medical needs by implementing, sanctioning, approving, ratifying, or failing to remedy policies,
8
9 practices, acts and omissions that deny, delay or intentionally interfere with medical treatment.

10 83. Defendants’ deliberate indifference to Plaintiffs’ and the ESP class’s serious medical needs
11 puts Plaintiffs and the ESP class at substantial risk of injury, causes avoidable pain, mental suffering,
12
13 and deterioration of their health, and in some cases it has resulted or may result in premature death.

14 Defendants’ conduct constitutes unnecessary and wanton infliction of pain on the Plaintiffs and the
15 ESP class.
16
17 84. Defendants’ policies, practices, acts, and omissions evidence and constitute deliberate

18 indifference to the serious medical needs of prisoners and violate the Cruel and Unusual
19 Punishments Clause of the Eighth Amendment, made applicable to the States through the Fourteenth
20
21 Amendment to the Untied States Constitution.

22 85. As a proximate result of Defendants’ unconstitutional policies, practices, acts and omissions,
23 Plaintiffs and the ESP class have suffered and will continue to suffer immediate and irreparable
24
25 injury, including physical, psychological and emotional injury and risk of death. Plaintiffs have no

26 plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive
27 relief sought by Plaintiffs is necessary to prevent continued and further injury.
28

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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court:

2

1.

Issue an order certifying this action to proceed as a class action pursuant to Rules

3 3(a) and (b)(2) of the Federal Rules of Civil Procedure;
4

5

2.

Issue a judgment declaring that the actions of Defendants described herein are

6 nlawful and violate Plaintiffs' rights under the Constitution and laws of the United States;


7


3.

Enjoin Defendants, their subordinates, agents, employees, and all others acting in

8


9
 oncert with them, from subjecting Plaintiffs to the conditions set forth in this Complaint;

10

4.

Grant Plaintiffs their reasonable attorney fees and costs pursuant to 42 U.S.c. § 1988

11 nd other applicable law; and
12

13

5.

Grant such other relief as the Court considers just and proper.

14
f, 15 ate: March 2008

16

17

BY:

18

19

my Fettig ~ 0 h c vic pen In

Margaret Winter (pro ha ice nding)

20

THE NATIONAL PRISON PROJECT OF

21

THE ACLU FOUNDATION, INC.

915 15th Street, N.W., Seventh Floor

22

Washington, D.C. 20005

23

Tel. (202) 393-4930; fax (202) 393-4931

afettig@npp-aclu.org

24

mwinter@npp-aclu.org

25

26

27 I f - - - - - - - - - ­

28

I Attorneys Winter, Fettig and Hanlon will comply with LR IA 10-2 within 45 days.

16

Case 3:08-cv-00115-BES-VPC Document 1 Filed 03/06/2008 Page 17 of 17

ee Rowand


ACLU OF NEVADA


NV Bar No.1 0209


2


1280 Terminal Way, Suite 46


3


Reno, NV 89502


Tel (775) 786-1033; fax (775) 786-0805


4


rowland@aclunv.org


5 Allen Lichtenstein

6


ACLU OF NEVADA

7


NY Bar No. 3992


3315 Russell Road, No. 222


8


Las Vegas, Nevada 89120


9


Tel. (702) 433-2666; fax (702) 433-9591


alichtensteinlaw@aol.com

10

11


Stephen F. Hanlon (pro hac vice pending)

HOLLAND & KNIGHT LLP

12


2099 Pennsylvania Avenue, N.W.

13


Washington, D.C. 20006


Tel. (202) 955-3000; fax (202) 955-5564


14


15

16


17


18


19


20

21


22


23


24


25

26


27


28


17


Case 3:08-cv-00115-BES-VPC Document 1-2 Filed 03/06/2008 Page 1 of 1

~JS 44 (Rev. 11104)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided
by local rules of court. This form. approved by the Judicial Conference ofthe United States in September 1974, is reqUired for the use ofthe Clerk of Court for the purpose ofmitiating the civil docket sheet. (SEE INSTRUCTIONS ON TIlE REVERSE OF TIlE FORM.)

I. (8) PLAINTIFFS

DEFENDANTS

David Riker, Roger Libby, Ricky Sechrest, Terrence Brothers, Jeffrey Hosmer, and Mark Whittington

James Gibbons, Ross Miller, Catherine Cortez Masto, Howard Skolnik, Robert Bannister, and E.K. McDaniel

(b) County of Residence of First Listed Plaintiff White Pine County
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE TIlE LOCAnON OF THE LAND INVOLVED.

(c) Attorney's (Finn Nome, Address, and Telepbone Number)

Attorneys (If Known)

Lee Rowland, ACLU of Nevada, 1280 Terminal Way, Suite 46, Reno, NV Janet Traut, Deputy Attorney General, Litigation Division

89502775n86-1033

100 North Carson Street, Carson City, NY 89701775/684-1033

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

01 U.s. Government Plaintiff

lID 3 Federal Question
(U.S. Government Nota Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(place an "K" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen ofThis State

PTF DEF
II I lID I Incorporated or Principal Place

a a YJ'F DEF

4

4

ofBusiness In This Stale

o 2 U.S. Government
Defendant

04 Divenity (Indicate Citizenship ofParties in Item 111)

Citizen ofAnother State
Citizen or Subject ofa forei n Coon

a2 0
03 a

Incorporated and Principal Place of Business In Another State
Foreign Nation

a a5
a6 a6

IV NATURE OF SUIT (Place an "K" in One Box Onlv\

C NTRACT

TORTS

a 110 tnsurance a 120 Marine a 130 Miller Act a 140 Negotiable In.trument a 150 Recovery of Overpayment

PERSONAL INJURY
a 3\ 0 Airplane a 315 Airplane Product
Liability

a 320 Assaul~ Libel &


& Enforcement ofJudgmenl

Slander


a 15 I Medicare Act

a 330 Federal Employers'

a 152 Recovery of Defaulted

Liability

Student Loans

a 340 Marine

(Excl. Veteran.)

a 345 Marine Product

o 153 Recovery of Overpayment

Liability

of Veteran'. Benefits

a 350 Motor Vehicle

a 160 Stcckholders' Suits

a 355 Motor Vehicle

a 190 Other Conlract

Product Liability

a 195 Contract Product Liability 0 360 Other Penonal

a 196 franchise

Iniurv

PERSONAL INJURY
a 362 Personal Injury ­
Med. Malpractice
a 365 Personal Injul)' -
Product Liability
a 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
a 370 Other Fraud a 371 Truth in Lending a 380 Orber Personal
Property Damage
a 385 Propeny Damage
product Liability

REALPRClPERTY
o 2I0 Land Condemnation
a 220 Foreclosure a 230 Rent Lease & Ejecrment a 240 Tons to Land a 245 Tort Product Liability a 290 All Other Real Property

CIVIL RIGHTS

PRISONER PETITIONS

a 441 Voting

a 510 Motions to Vacate

a 442 Employment

Sentence

a 443 Housing!

Habeas Corp...:

Accommodations

a 530 General

a 444 Welfare

a 535 Death Penalty

a 445 Amer. wlDisabilities- a 540 M...damu. & Orher

Employment

a 550 Civil Rights

a 446 Amer. wlDisabilities ­ a SS5 Prison Condition

Other ~ 440 Other Civil Right.

I'ORFEITUREIPENALTY
a 610 Agriculture a 620 Other Food & Drug a 62S Drug Related Seizure
ofPropeny 21 USC 881
a 630 Liquor Laws a 640 R.R. & Truck a 650 Airline Regs. a 660 Decupalional
SafetylHealth
a 690 Other
R
a 710 Fair Labor Standards
Act
a 720 LaborlMgmt. Relations
0 730 LaborlMgmtReporling & Disclosure Act
a 740 Railway Labor Act a 790 Other Labor Litigation a 791 Empl. Ret Inc.
Security Act
I

BANKRUPT Y
a 422 Appeal 28 USC 158 a 423 Withdrawal
28 USC IS7
PROPERTY RIGHTS
a 820 Copyrigbts a 830 Patent a 840 Trademark
IAL SECURlTV
a 86 I HIA (1395ft) a 862 Black Lung (923)
oo 863 D1WClDIWW (40S(g» 864 SSID Title XVI
a 865 RSI 14051l!))
FEDERAL TAX SillTS
a 870 Taxes (U.S. Plaintiff
or Defendant)
a 871 IRS-Third Party
26 USC 7609

OTHER STA nlTF.'l
a 400 Stale Reapportionment a 410 Antitrust a 430 Bank. and Banking a 450 Commerce
0 460 Deportation
0 470 Racketeer Influenced and Corrupt Organizations
a 480 Consumer Credit a 490 Cable/Sat TV
0 810 Selective Service
a 850SecwitiesiCommoditiesJ
Excbange
a 875 Customer Challenge
12 USC 3410
a 890 Other Statutory Actions
0 891 Agricultural Acts
a 892 Economic Stabilization Act a 893 Environmental Matters
0 894 Energy Allocation Act
a 895 Freedom oflnfonnation
Act
a 900AppeaI ofFee Determination
Under Equal Access
to Justice
a 950 Constitutionality of
Stale Statutes

V. ORIGIN
I!D 1 Original Pr ceedin

.. (Place an K" In One Box Only)

O 2 Removed from

0 3 Remanded from

!

0 4 Reinstated or 0

5

Transferred from another district

0 6 Multidistrict

9M1 State Court C4~ \1.~C·. )i

A Hate Court

eo ned

s eCI

Liti ation

tatute under which you are filing (Do not cite jUrisdictional statutes unless diversity):

o 7

Appeal to District
Judge from Magistrate
Jud ment

VI. CAUSE OF ACTION Briefdescription of cause:

Deliberate indifference to the serious medical needs of over 1000 prisoners at Ely State Prison in Ely, NV.


VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint:

JURy DEMAND:

0 Yes c:J No

VIII. RELATED CASE(S) IFANY

(See instructions):

JUDGE

DOCKET NUMBER

DATE(J/~/o8
FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

_ APPLYING IfP

- - - - - - - - - - - - - - - _

JUDGE

MAO. JUDGE

Case 3:08-cv-00115-BES-VPC Document 1-3 Filed 03/06/2008 Page 1 of 2

1 Amy FettigJpro hac vice pending)l Margaret Wmter (pro hac vice pending)
2 THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC.
3 915 15th Street, N.W., Seventh Floor
Washinzton, D.C. 20005 4 Tel (20~) 393-4930; fax (202) 393-4931
afettIg@I.!Pp-aclu.org 5 mwinter(g?npp-aclu.org

6 Lee Rowland ACLU OF NEVADA
7 NV Bar No. 10209 1280 Terminal Way, Suite 46
8 Reno, NV 89502 Tel (775) 786-1033; fax (775) 786-0805
9 rowland@aclunv.org

10 Allen Lichtenstein ACLU OF NEVADA
11 NV Bar No. 3992 3315 Russell Road, No. 222
12 Las Vegas, Nevada 89120 Tel (702) 433-2666; fax (702) 433-9591
13 alichtensteinlaw@aol.com

14 Stephen F. Hanlon (pro hac vice pending) HOLLAND & KNIOHT LLP
15 2099 Pennsylvania Avenue, N.W. Washington, D.C. 20006
16 Tel. (202) 955-3000; fax (202) 955-5564

17 Counsel for Plaintiffs

18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

19

20 DAVID RIKER, ROGER LffiBY, RICKY SECHREST TERRENCE BROTHERS, JEFFREY HOSMER, MARK
21 WHITTINGTON on their own behalf and on behalf of those similarly situated,
22 Plaintiffs,
23
v.
24

Docket No.- - - -

25 JAMES GIBBONS, Governor of Nevada; ROSS MILLER, Secretary of State of Nevada; CATHERINE CORTEZ MASTO,
26 Attorney General of Nevada; HOWARD SKOLNIK, Director,

27

28

1 Attorneys Winter, Fettig and Hanlon will comply with LR IA 10-2 within 45 days.

1

Case 3:08-cv-00115-BES-VPC Document 1-3 Filed 03/06/2008 Page 2 of 2

1 Nevada Department of Corrections; ROBERT BANNISTER, Medical Duector, Nevada Department of Corrections; and
2 E. K. MCDANIEL, Warden, Ely State Prison.

3

Defendants.

4

5

6

PLAINTIFFS' CERTIFICATE AS TO INTERESTED PARTIES

7

8

9

Pursuant to Local Rule 7.1-1 the undersigned, counsel of record for Plaintiffs, certifies

10 that the following have an interest in the outcome of this case:

11

There are no known interested parties other than those participating in this case.

12

13 These representations are made to enable judges of the Court to evaluate possible disqualification

14 or recusal.

15

16

17 Date: March _6_, 2008 18 19 20 21 22 23

BY:

~ A LV of Nevada

NV Bar No. 10209

1280 Terminal Way, Suite 46

Reno, NV 89502

Tel (775) 786-1033; fax (775) 786-0805

rowland@aclunv.org

24

25

26

27

28

2


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 Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 1 of 10

1 CATHERINE CORTEZ MASTO Attorney General
2 JANET E. TRAUT Senior Deputy Attorney General
3 Nevada Bar No. 8695
Bureau of Public Affairs 4 Public Safety Division
100 No. Carson St. 5 Carson City, NV 89701-4717
Tel: 775-684-1254
6 Attorneys for Defendants James Gibbons,
7 Ross Miller, Catherine Cortez Masto, Howard Skolnik, Robert Bannister,
8 and E.K. McDaniel

9 UNITED STATES DISTRICT COURT
10 DISTRICT OF NEVADA
11

12 DAVID RIKER, et al,

13

Plaintiffs,

14 v.

15 JAMES GIBBONS, et al.,

16

Defendants.

)

)

Case No. 3:08-CV-115-LRH-VPC

)

)

) ANSWER TO CLASS ACTION COMPLAINT

)

AND DEMAND FOR JURY TRIAL

)

)

)

17

Defendants James Gibbons, Governor of Nevada, Ross Miller, Secretary of State of

18 Nevada, Catherine Cortez Masto, Attorney General of Nevada, Howard Skolnick, Director of

19 the Nevada Department of Corrections (NDOC), Robert Bannister, NDOC Medical Director,

20 and E.K. McDaniel, Warden at NDOC’s Ely State Prison (ESP), through Attorney Catherine

21 Cortez Masto and Senior Deputy Attorney General Janet E. Traut, answer and otherwise

22 respond to the Amended Class Action Complaint (Complaint) filed herein on April 16, 2008 by

23 Plaintiffs as follows:

24

INTRODUCTION

25

1. Answering paragraph No. 1 of the Complaint, Defendants note that it fails to identify

26 “those similarly situated.” Plaintiffs’ make a blanket assertion that “all the men” confined at

27
28 Office of the
Attorney General 100 N. Carson St. Carson City, NV
89701-4717

the ESP are subject to “constant significant risk of serious injury, medical harm, premature death and the needless infliction of great physical pain and suffering.” All inmates at ESP are
1

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 2 of 10

1 not plaintiffs in this action. Paragraph No. 1 is argument, conclusory and need not be

2 admitted or denied. Paragraph No. 1 is not a “FACTUAL ALLEGATION” (paragraphs No.s

3 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a “CLAIM FOR

4 RELIEF” (paragraphs No.s 75-79). To the extent it contains allegations of fact, those

5 allegations are denied.

6

2. Answering paragraph No. 2, paragraph No. 2 is argument, conclusory and mentions

7 the relief sought. Paragraph No. 2 is not a “FACTUAL ALLEGATION” (paragraphs No.s 16-

8 51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a “CLAIM FOR RELIEF”

9 (paragraphs No.s 75-79). It need not be admitted or denied. To the extent it contains

10 allegations of fact, those allegations are denied.

11

JURISDICITON AND VENUE

12

3. Answering paragraph No. 3, paragraph No. 3 is not a “FACTUAL ALLEGATION”

13 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

14 “CLAIM FOR RELIEF” (paragraphs No.s 75-79). Regardless, Defendants deny the Court has

15 subject matter jurisdiction to consider Plaintiffs’ 42 U.S.C. § 1983 federal civil rights complaint.

16

4. Answering paragraph No. 4, Paragraph No. 4 is not a “FACTUAL ALLEGATION”

17 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

18 “CLAIM FOR RELIEF” (paragraphs No.s 75-79). Regardless, in light of the Defendants’

19 position that there is no subject matter jurisdiction, Defendants deny that venue is proper.

20

PARTIES

21

Plaintiffs

22

5. Answering paragraph No. 5, despite not being a “FACTUAL ALLEGATION”

23 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

24 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit.

25

6. Answering paragraph No. 6, despite not being a “FACTUAL ALLEGATION”

26 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

27 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit.

28 Office of the / / /

Attorney General

100 N. Carson St.

Carson City, NV

2

89701-4717

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 3 of 10

1

7. Answering paragraph No. 7, despite not being a “FACTUAL ALLEGATION”

2 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

3 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit. However, Plaintiff

4 Brothers, at a regularly scheduled classification hearing was reclassified to medium security

5 and is awaiting bed space at High Desert State Prison (HDSP).

6

8. Answering paragraph No. 8, despite not being a “FACTUAL ALLEGATION”

7 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

8 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit.

9

9. Answering paragraph No. 9, despite not being a “FACTUAL ALLEGATION”

10 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

11 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit.

12

Defendants

13

10. Answering paragraph No. 10, despite not being a “FACTUAL ALLEGATION”

14 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

15 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit the Governor of the State

16 of Nevada is James Gibbons, that he is President of the State Board of Prison

17 Commissioners (Board) and that Plaintiffs sue him in his official capacity. The State Health

18 Officer is required to report to the Board semiannually upon the medical services and the

19 standards as provided in chapter 449 of NRS. See NRS 209.382(1)(a). Defendants deny the

20 remaining allegation of paragraph No. 10; that the Board is responsible for the “oversight” of

21 all prisons in Nevada. The Director of the NDOC is responsible for day-to-day operations of

22 the NDOC, and the Director is subject to oversight from the Board.

23

11. Answering paragraph No. 11, despite not being a “FACTUAL ALLEGATION”

24 (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a

25 “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit the Secretary of State of

26 Nevada is Ross Miller, that he is the Secretary of the Board and that Plaintiffs sue him in his

27 official capacity. Defendants deny the remaining allegation of paragraph No. 11; that the

28 Office of the
Attorney General 100 N. Carson St. Carson City, NV
89701-4717

Board is responsible for the “oversight” of all prisons in Nevada. The Director of the NDOC is 3

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 4 of 10

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 Office of the
Attorney General 100 N. Carson St. Carson City, NV
89701-4717

responsible for day-to-day operations of the NDOC, and the Director is subject to oversight from the Board.
12. Answering paragraph No. 12, despite not being a “FACTUAL ALLEGATION” (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit the Attorney General of Nevada is Catherine Cortez Masto and that Plaintiffs sue her in her official capacity.
13. Answering paragraph No. 13, despite not being a “FACTUAL ALLEGATION” (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit that the NDOC Director is Howard Skolnik and that Plaintiffs sue him in his official capacity. However, in light of delegation of powers, duties or functions, Defendants are without sufficient knowledge to form a reasonable belief as to the truth or falsity of the allegations contained in the remainder of said paragraph and therefore deny them.
14. Answering paragraph No. 14, despite not being a “FACTUAL ALLEGATION” (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit that Robert Bannister, M.D. is the designated medical director for the NDOC and that Plaintiffs sue him in his official capacity. Dr. Bannister and others are responsible for the medical treatment of offenders housed by the NDOC. Defendants are without sufficient knowledge to form a reasonable belief as to the truth or falsity of the allegations contained in the remainder of said paragraph and therefore deny them.
15. Answering paragraph No. 15, despite not being a “FACTUAL ALLEGATION” (paragraphs No.s 16-51), a “CLASS ACTION ALLEGATION” (paragraphs No.s 52-74) or a “CLAIM FOR RELIEF” (paragraphs No.s 75-79), Defendants admit that E.K. McDaniel is the Warden at ESP and that Plaintiffs sue him in his official capacity. Warden McDaniel is responsible for the non-delegated daily functioning and administration of ESP, including the safe, secure and humane treatment of all inmates incarcerated at ESP. / / /
4

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 5 of 10

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 Office of the
Attorney General 100 N. Carson St. Carson City, NV
89701-4717

FACTUAL ALLEGATIONS 16. Answering paragraph No. 16, Defendants admit. 17. Answering paragraph No. 17, Defendants deny. 18. Answering paragraph No. 18, Defendants deny. 19. Answering paragraph No. 19, Defendants deny. 20. Answering paragraph No. 20, Defendants deny. 21. Answering paragraph No. 21, Defendants deny. 22. Answering paragraph No. 22, Defendants deny. 23. Answering paragraph No. 23, Defendants deny. 24. Answering paragraph No. 24, Defendants deny. 25. Answering paragraph No. 25, Defendants deny. 26. Answering paragraph No. 26, Defendants deny. 27. Answering paragraph No. 27, Defendants deny. 28. Answering paragraph No. 28, Defendants deny. 29. Answering paragraph No. 29, Defendants deny. 30. Answering paragraph No. 30, Defendants deny. 31. Answering paragraph No. 31, Defendants deny. 32. Answering paragraph No. 32, Defendants deny. 33. Answering paragraph No. 33, Defendants deny. 34. Answering paragraph No. 34, Defendants deny. 35. Answering paragraph No. 35, Defendants deny. 36. Answering paragraph No. 36, Defendants deny. 37. Answering paragraph No. 37, Defendants deny. 38. Answering paragraph No. 38, Defendants deny. 39. Answering paragraph No. 39, Defendants deny. 40. Answering paragraph No. 40, Defendants deny. 41. Answering paragraph No. 41, Defendants deny. 42. Answering paragraph No. 42, Defendants deny.
5

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 6 of 10

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 Office of the
Attorney General 100 N. Carson St. Carson City, NV
89701-4717

43. Answering paragraph No. 43, Defendants deny. 44. Answering paragraph No. 44, Defendants deny. 45. Answering paragraph No. 45, Defendants deny. 46. Answering paragraph No. 46, Defendants admit that the report was delivered
approximately that date. 47. Answering paragraph No. 47, Defendants deny. 48. Answering paragraph No. 48, Defendants deny. 49. Answering paragraph No. 49, Defendants deny. 50. Answering paragraph No. 50, Defendants deny. 51. Answering paragraph No. 51, Defendants deny.
CLASS ACTION ALLEGATIONS 52. Answering paragraph No. 52, Defendants are without sufficient information or
knowledge to either admit or deny the allegations, if any there are, contained in this paragraph and on that basis deny the same. 53. Answering paragraph No. 53, Defendants deny. 54. Answering paragraph No. 54, Defendants deny. 55. Answering paragraph No. 55, Defendants deny. 56. Answering paragraph No. 56, Defendants deny. 57. Answering paragraph No. 57, Defendants deny. 58. Answering paragraph No. 58, Defendants deny. 59. Answering paragraph No. 59, Defendants deny. 60. Answering paragraph No. 60, Defendants deny. 61. Answering paragraph No. 61, Defendants deny. 62. Answering paragraph No. 62, Defendants deny. 63. Answering paragraph No. 63, Defendants deny. 64. Answering paragraph No. 64, Defendants deny. 65. Answering paragraph No. 65, Defendants deny. 66. Answering paragraph No. 66, Defendants deny.
6

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 7 of 10

1

67. Answering paragraph No. 67, Defendants deny.

2

68. Answering paragraph No. 68, Defendants deny.

3

69. Answering paragraph No. 69, Defendants deny.

4

70. Answering paragraph No. 70, Defendants deny.

5

71. Answering paragraph No. 71, Defendants deny.

6

72. Answering paragraph No. 72, Defendants deny.

7

73. Answering paragraph No. 73, Defendants deny.

8

74. Answering paragraph No. 74, Defendants deny.

9

CLAIM FOR RELIEF

10

75. Answering paragraph No. 75, Defendants deny.

11

76. Answering paragraph No. 76, Defendants deny.

12

77. Answering paragraph No. 77, Defendants deny.

13

78. Answering paragraph No. 78, Defendants deny.

14

79. Answering paragraph No. 79, Defendants deny.

15

PRAYER FOR RELIEF

16

Defendants deny that Plaintiff is entitled to any relief. All other material

17 allegations are denied.

18

DEMAND FOR JURY TRIAL

19

1. Defendant demands a jury trial.

20

AFFIRMATIVE DEFENSES

21

1. Subject matter jurisdiction is absent.

22

2. Plaintiffs’ Complaint fails to state a claim upon which relief can be granted.

23

3. Plaintiffs’ claims are barred by sovereign or Eleventh Amendment immunity.

24

4. Plaintiffs’ claims are barred by executive or judicial immunity.

25

5. Plaintiffs’ claims are barred by qualified immunity.

26

6. Plaintiffs’ claims are barred by statutory discretionary immunity.

27

7. Plaintiffs’ claims are barred by the equitable doctrines of estoppel, unclean hands,

28 Office of the waiver and/or laches.

Attorney General

100 N. Carson St.

Carson City, NV

7

89701-4717

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 8 of 10

1

8. Plaintiffs’ injuries and damages, if any, are the result of the intentional or negligent

2 acts of the Plaintiffs or other third persons.

3

9. Plaintiffs’ or others’ intervening acts superseded any culpability of the Defendants.

4

10. There was no direct or personal involvement, supervisory or otherwise, to allow for

5 respondeat superior liability.

6

11. Plaintiffs’ claims are time barred or otherwise barred by the applicable statute of

7 limitations.

8

12. Plaintiffs’ claims are barred by the absence of the requisite culpable state of

9 mind for a cruel and unusual punishment claim under the Eighth Amendment.

10

13. Plaintiffs lack standing.

11

14. Plaintiffs’ claims are not ripe.

12

15. Plaintiffs’ claims are moot.

13

16. Defendants assert all immunities at common law or pursuant to statute.

14

17. Plaintiffs’ claims are barred by the doctrines of estoppel and/or res judicata.

15

18. Plaintiffs failed to exhaust administrative remedies.

16

19. The Complaint proceeds against the Defendants solely in their official capacities

17 and, to the extent that anything other than prospective injunctive relief is sought, it must be

18 dismissed since these officials are not “persons” for purposes of the instant 42 U.S.C. § 1983

19 Complaint.

20

20. Assumption of risk is a bar.

21

21. Contributory negligence is a bar.

22

22. Plaintiffs failed to mitigate damages.

23

23. Defendants reserve the right to supplement these affirmative defenses.

24 / / /

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28 Office of the / / /

Attorney General

100 N. Carson St.

Carson City, NV

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Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 9 of 10

1

WHEREFORE, Defendants pray that Plaintiffs’ complaint be dismissed with prejudice,

2 that judgment be entered in favor of the Defendants, that the Defendants be awarded costs

3 and reasonable attorneys’ fees and for such other and further relief as to the Court appears

4 proper.

5

DATED this 15th day of May, 2008

6

CATHERINE CORTEZ MASTO

Attorney General

7

8

By:

9

JANET E. TRAUT

Senior Deputy Attorney General

10

Bureau of Public Affairs

Public Safety Division

11

Attorneys for Defendants

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28 Office of the

Attorney General

100 N. Carson St.

Carson City, NV

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89701-4717

Case 3:08-cv-00115-LRH-VPC Document 22 Filed 05/15/2008 Page 10 of 10

CERTIFICATE OF SERVICE
1 I certify that I am an employee of the Office of the Attorney General, State of Nevada,
2 and that on this 15th day of May 2008, I served a copy of the foregoing ANSWER TO
3 AMENDED CLASS ACTION COMPLAINT, to be served, by U.S. District Court CM/ECF
4 Electronic Filing to:
5

6 Amy Fettig (pro hac vice pending) Margaret Winter (pro hac vice pending)
7 THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC.
8 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005
9 Lee Rowland, NV Bar No. 10209
10 ACLU OF NEVADA 1280 Terminal Way, Suite 46
11 Reno, NV 89502

12 Allen Lichtenstein, NV Bar No. 3992 General Counsel, ACLU OF NEVADA
13 3315 Russell Road, No. 222 Las Vegas, Nevada 89120
14 Stephen F. Hanlon (pro hac vice pending)
15 HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W.
16 Washington, D.C. 20006
17 Counsel for Plaintiffs

18

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23

24

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26 27

C:\Documents and Settings\agcoffma\My Documents\JANET TRAUT\Cases\Riker.115\Answer.DOC

28 Office of the

Attorney General

100 N. Carson St.

Carson City, NV

10

89701-4717

 
 Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 1 of 14

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

* * *

9 DAVID RIKER et al.,

10

Plaintiffs,

11 v.

12 JAMES GIBBONS et al.,

13

Defendants.

14

)

)

)

3:08-CV-00115-LRH-RAM

)

)

)

ORDER

)

)

)

)

)

15

Before the court are two motions: Plaintiffs’ Motion for Class Certification (#71) and

16 Defendants’ Motion to Sever (#23).

17 I. Facts

18

The following facts are taken from Plaintiffs’ Amended Class Action Complaint (#15):

19

This case is brought by four2 plaintiffs currently incarcerated at Ely State Prison (“ESP”).

20 They bring this action on behalf of themselves and those similarly situated. Their complaint asserts 21 one cause of action: Defendants3 have deprived Plaintiffs of their Eighth Amendment guarantee

22

23

1Refers to the court’s docket

24

2Although the Amended Class Complaint references five named plaintiffs, Plaintiff Terrence Brothers

has withdrawn as a named plaintiff in this action. (See Pls.’ Supplemental Br. (#32) at 26 n.8.)

25
3The complaint names six defendants: James Gibbons, Governor of Nevada; Ross Miller, Secretary of
26 State of Nevada; Catherine Cortez Masto, Attorney General of Nevada; Howard Skolnik, Director of the
Nevada Department of Corrections; Robert Bannister, Medical Director of the Nevada Department of

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 2 of 14

1 against cruel and unusual punishment in violation of 42 U.S.C. § 1983. Plaintiffs seek only

2 injunctive relief.

3

The crux of Plaintiffs’ complaint is that ESP lacks a constitutionally adequate health care

4 system. They allege that a constitutionally adequate health care system would include (1) ready

5 access to adequate medical care; (2) a medical staff competent to examine prisoners and diagnose

6 illnesses; (3) adequate, accurate, and up-to-date medical record keeping; (4) an ability to treat

7 medical problems or to refer prisoners to others who can; and (5) adequate policies and procedures

8 for responding to emergencies.

9

Plaintiffs further allege that ESP prisoners are subject to the following policies and

10 practices: (1) refusal to provide necessary medical care for serious medical needs; (2) failure to

11 maintain an adequate system to provide prescription medication refills and ensure continuity of

12 treatment; (3) failure to make timely referrals for specialty care; (4) failure to monitor prisoners

13 with chronic conditions; (5) refusal to treat chronic pain; and (6) failure to ensure adequate

14 coverage by a qualified physician at ESP.

15

Plaintiffs allege that the above inadequacies and polices create a substantial risk of serious

16 medical harm to each prisoner. They further allege that the policies and inadequacies cause the

17 prisoners actual harm. As to the factual basis for Plaintiffs’ allegations, the complaint describes

18 each named plaintiff’s medical condition and the medical conditions of a few unnamed prisoner-

19 plaintiffs. The complaint also describes the manner in which ESP personnel have failed to provide

20 these prisoners with adequate medical care.

21 II. Legal Standard

22

Rule 23(a) states four threshold requirements applicable to all class actions. Rule 23(a)

23 provides the following in full:

24
25 Corrections; and E.K. McDaniel, Warden of Ely State Prison. These defendants are sued only in their official
capacities.
26 2

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 3 of 14

1

(a) Prerequisites. One or more members of a class may sue or be sued as representative

parties on behalf of all members only if:

2

(1) the class is so numerous that joinder of all members is impracticable;

3

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

4

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

5

interests of the class.

6

The Supreme Court has labeled these elements as “numerosity,” “commonality,”

7 “typicality,” and “adequacy of representation,” respectively. Amchem Products, Inc. v. Windsor,

8 521 U.S. 591, 613 (1997). In addition to satisfying Rule 23(a)’s requirements, parties seeking class

9 certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Plaintiffs in

10 this case seek certification under Rule 23(b)(2), which provides that a class action may be

11 maintained if “the party opposing the class has acted or refused to act on grounds that apply

12 generally to the class, so that final injunctive relief or corresponding declaratory relief is

13 appropriate respecting the class as a whole.”

14

In considering a motion to certify a class, a court should first look to the pleadings to

15 determine whether they provide sufficient information to form a reasonable judgment on each of

16 Rule 23's requirements. Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975). However, if

17 necessary, a court may request the parties to supplement the pleadings. Id. Moreover, if the parties

18 submit conflicting evidence on Rule 23's requirements, the court must conduct a “rigorous

19 analysis” to determine if plaintiffs have met the Rule. See Hanon v. Dataproducts Corp., 976 F.2d

20 497, 509 (9th Cir. 1992).

21 III. Discussion

22

Plaintiffs ask this court to enter an order certifying the following class: “All prisoners who

23 are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely

24 State Prison in Ely, Nevada.” Plaintiffs’ motion will be granted.

25 ///

26 3

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 4 of 14

1

A. Numerosity

2

The first requirement of Rule 23(a) is that “the class is so numerous that joinder of all

3 members is impracticable . . . .” Fed. R. Civ. P. 23(a)(1). Plaintiffs’ complaint alleges that there

4 are currently one thousand prisoners at ESP, and there will be an unknown number of future

5 prisoners. This allegation is sufficient to meet Rule 23(a)(1). The Ninth Circuit summarized the

6 numerosity element in Jordan v. Los Angeles County:

7

Although the absolute number of class members is not the sole determining factor, where

a class is large in numbers, joinder will usually be impracticable. Where the class is not

8

so numerous, however, the number of class members does not weigh as heavily in

determining whether joinder would be infeasible. In the latter situation, other factors

9

such as the geographical diversity of class members, the ability of individual claimants

to institute separate suits, and whether injunctive or declaratory relief is sought, should

10

be considered in determining impracticability of joinder.

11 669 F.2d 1311, 1319 (9th Cir. 1982) (citation omitted), vacated on other grounds, 459 U.S. 810

12 (1982). While the Jordan court declined to rely solely on the number of ascertained class

13 members (39, 64, and 71) in finding numerosity, the court also stated it was “inclined” to do so.

14 Id.

15

In the present case, the number of current ESP prisoners (one thousand) alone is sufficient

16 to fulfill the numerosity requirement. Furthermore, other factors weigh in favor of finding

17 numerosity, including the fluidity of the prison population and the prisoners’ lack of access to

18 counsel. See Thomas v. Baca, 231 F.R.D. 397, 399-400 (C.D. Cal. 2005) (finding numerosity in a

19 class of 25 to 500 jail detainees who were forced to sleep on the floor each night); Dean v.

20 Coughlin, 107 F.R.D. 331, 332-33 (S.D.N.Y. 1985) (finding numerosity in a class of prisoners

21 challenging the constitutionality of their dental care on the basis that “[t]he fluid composition of a

22 prison population is particularly well-suited for class status, because, although the identity of the

23 individuals involved may change, the nature of the wrong and the basic parameters of the group

24 affected remain constant”).

25 ///

26 4

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 5 of 14

1

B. Commonality

2

The second requirement of Rule 23(a) is that “there are questions of law or fact common to

3 the class . . . .” Fed. R. Civ. P. 23(a)(2). The Ninth Circuit has described this element as follows:

4

Rule 23(a)(2) has been construed permissively. All questions of fact and law need not

be common to satisfy the rule. The existence of shared legal issues with divergent factual

5

predicates is sufficient, as is a common core of salient facts coupled with disparate legal

remedies within the class.

6

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

7

In this case, there are common issues of both fact and law. The common issue of fact

8

concerns the policies and inadequacies Plaintiffs allege inhere in ESP’s health care system. The

9

common issue of law concerns whether these policies and inadequacies constitute a Eighth

10 Amendment violation.4 Cf. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (concluding that

11

the medical services provided at a prison were so deficient that they reflected a deliberate

12

indifference to the serious medical needs of the prisoners and therefore constituted an Eighth

13

Amendment violation). Plaintiffs have therefore met the commonality requirement. See also

14

Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (“We have previously held, in a civil-rights

15

suit, that commonality is satisfied where the lawsuit challenges a system-wide practice or policy

16

that affects all of the putative class members. In such circumstance, individual factual differences

17

18
4Defendants’ chief argument in opposition to class certification is that “[e]ach proposed class member
19 would present different situations involving different questions of law and fact.” (Opp’n to Mot. for Class
Certification & Mot. to Sever (#23) at 2:7-8, 5:11-21.) A very similar argument was examined and rejected by
20 the United States District Court for the Southern District of New York in Dean v. Coughlin, 107 F.R.D. 331,
333 (S.D.N.Y. 1985) (“[D]eliberate indifference to serious medical needs of prisoners violates the Eighth
21 Amendment. This indifference may occur on an individual level, such as when a doctor intentionally mistreats
an inmate . . . or on an institutional level, when the prison's system of medical care is so seriously inadequate
22 as to cause unwarranted suffering. Where a prisoner class seeks to challenge an entire health care system,
deliberate indifference to their health needs can be shown either by repeated acts which disclose a pattern of
23 conduct by the prison medical staff, or by evidence of such systemic deficiencies in staffing, facilities, or
24 procedures that unnecessary suffering is inevitable. Accordingly, the claims of each class member need not
be identical to raise common factual and legal questions regarding the adequacy of an entire system.”) (citations
25 and internal quotation marks omitted).

26 5

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 6 of 14

1 among the individual litigants or groups of litigants will not preclude a finding of commonality.”)

2 (citations omitted); Robert E. v. Lane, 530 F. Supp. 930, 942 (N.D. Ill. 1981) (finding common

3 factual issues when plaintiff-prisoners alleged a prison’s entire mental health care system was

4 deficient, and finding a common legal question in whether the mental health care system

5 comported with constitutional standards); Baby Neal v. Casey, 43 F.3d 48, 57 (3d Cir. 1994)

6 (“[B]ecause they do not also involve an individualized inquiry for the determination of damage

7 awards, injunctive actions ‘by their very nature often present common questions satisfying Rule

8 23(a)(2).’”) (quoting 7A Charles Alan Wright et al., Federal Practice and Procedure § 1763, at

9 247 (2d ed. 1986)).

10

C. Typicality

11

The third requirement of Rule 23(a) is that “the claims or defenses of the representative

12 parties are typical of the claims or defenses of the class . . . .”5 Fed. R. Civ. P. 23(a)(3). The Ninth

13 Circuit has summarized this element as follows: “Under the rule's permissive standards,

14 representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class

15 members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020.

16

In a case concerning disabled prisoners’ claims that parole proceedings violated the

17 Americans with Disabilities Act and the Rehabilitation Act, the Ninth Circuit explained,

18

Where the challenged conduct is a policy or practice that affects all class members, the

underlying issue presented with respect to typicality is similar to that presented with

19

respect to commonality, although the emphasis may be different. In such a case, because

20

21

5The Ninth Circuit has noted that the commonality and typicality requirements are similar: “Although

the commonality and typicality requirements tend to merge into one another, they are stated differently. The

22 commonality requirement is said to be met if plaintiffs’ grievances share a common question of law or of fact.

Typicality, by contrast, is said to require that the claims of the class representatives be typical of those of the
23 class, and to be ‘satisfied when each class member's claim arises from the same course of events, and each class

member makes similar legal arguments to prove the defendant's liability.’ The crux of both requirements is to
24 ensure that ‘maintenance of a class action is economical and [that] the named plaintiff's claim and the class

claims are so interrelated that the interests of the class members will be fairly and adequately protected in their
25 absence.’” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (citations omitted).

26 6

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 7 of 14

1

the cause of the injury is the same . . . the typicality inquiry involves comparing the injury

asserted in the claims raised by the named plaintiffs with those of the rest of the class.

2

We do not insist that the named plaintiffs’ injuries be identical with those of the other

class members, only that the unnamed class members have injuries similar to those of the

3

named plaintiffs and that the injuries result from the same, injurious course of conduct.

4 Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001). In the district court, the Armstrong

5 plaintiffs established that California’s parole proceedings discriminated against disabled prisoners.

6 Id. at 854. Specifically, due to the parole authority’s failure to make proper accommodations, a

7 number of prisoners forfeited their right to a hearing, and other prisoners were unable to represent

8 themselves adequately. Id. In its typicality analysis, the Ninth Circuit concluded that the

9 prisoners’ injuries were identical because they suffered from “a refusal or failure to afford them

10 accommodations as required by statute, and are objects of discriminatory treatment on account of

11 their disabilities.” Id. at 869. The court also found that on a more specific level, “[a]lthough there

12 are minor differences in the nature of the specific injuries suffered by the various class members,

13 the differences are insufficient to defeat typicality.” Id.

14

In the present case, the named plaintiffs’ claims are reasonably coextensive with those of

15 absent class members. Each plaintiff claims he has been injured by the risk of physical injury and

16 unnecessary infliction of pain due to ESP’s inadequate medical system. Thus, the unnamed class

17 members have injuries similar to those of the named plaintiffs, and the injuries result from the

18 same injurious course of conduct.

19

Moreover, the typicality analysis utilized in Armstrong can also be applied here. Plaintiffs

20 claim that ESP fails to afford them the level of medical care required by the Eighth Amendment;

21 thus, on a general level, the Plaintiffs’ injuries are identical. Further, on a more specific level,

22 Plaintiffs allege they face a risk of injury and unnecessary pain due to ESP’s inadequate medical

23 system. Although the risk will differ according to each plaintiff’s current medical condition, such

24 differences do not defeat typicality given Rule 23(a)(3)’s “permissive standards.” See also Baby

25 Neal, 43 F.3d at 58 (“Commentators have noted that cases challenging the same unlawful conduct

26 7

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 8 of 14

1 which affects both the named plaintiffs and the putative class usually satisfy the typicality

2 requirement irrespective of the varying fact patterns underlying the individual claims.”) (citing

3 1 Alba Conte & Herbert Newberg, Newberg on Class Actions § 3.13 (3d ed.1992)).

4

D. Adequacy of Representation

5

The fourth requirement of Rule 23(a) is that “the representative parties will fairly and

6 adequately protect the interests of the class . . . .” Fed. R. Civ. P. 23(a)(4). “Resolution of two

7 questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any

8 conflicts of interest with other class members and (2) will the named plaintiffs and their counsel

9 prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020. The Supreme

10 Court has noted that because the commonality and typicality requirements are concerned with

11 whether the interests of the absent class members will be fairly and adequately protected, those

12 requirements tend to merge with the adequacy-of-representation requirement. Gen. Tel. Co. of the

13 Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). What constitutes adequate representation is a

14 question of fact. Soc. Services Union v. County of Santa Clara, 609 F.2d 944, 947 (9th Cir. 1979).

15

With respect to whether Plaintiffs have any conflicts of interest with other class members,

16 Defendants argue that this court should deny class certification because some ESP inmates are

17 pursuing their own separate actions in this district. Defendants do not state whether these

18 plaintiffs are pursuing injunctive relief. If they are not, the plaintiffs could continue to assert their

19 claims for damages in separate actions. See Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996)

20 (“[T]he general rule is that a class action suit seeking only declaratory and injunctive relief does

21 not bar subsequent individual damage claims by class members, even if based on the same

22 events.”). If the other ESP plaintiffs are indeed seeking injunctive relief, there are several

23 management options open to the court. See 7B Charles Alan Wright et al., Federal Practice and

24 Procedure § 1792, at 10 (3d ed. 2005) (“When similar actions, either class or individual, are

25 proceeding before several courts, one or more of the tribunals may stay the proceeding before it

26 8

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 9 of 14

1 pending the outcome of the other action.”). Thus, even if there are parallel actions pending in this

2 district, that fact alone does not pose a problem to certifying a class.

3

Defendants also argue that Plaintiffs would be inadequate class representatives because

4 they may be transferred to another facility. This contention is without merit. The fluidity of a

5 prison’s population is a factor that supports class certification. Stewart v. Winter, 669 F.2d 328,

6 334 (5th Cir. 1982). If a named plaintiff’s release or transfer renders him an inadequate

7 representative, the proper remedy is to permit his substitution by a new class representative. Id.

8

The court also finds that Plaintiffs have submitted persuasive evidence that they and their

9 counsel will prosecute this action vigorously on behalf of the class. Defendants do not submit 10 evidence to the contrary.6

11

E. Rule 23(b)(2)

12

As mentioned above, in addition to fulfilling all of Rule 23(a)’s requirements, Plaintiffs

13 must show that they meet one of the subsections in Rule 23(b). Here, Plaintiffs seek certification

14 under Rule 23(b)(2). Rule 23(b)(2) requires Plaintiffs to show that “the party opposing the class

15 has acted or refused to act on grounds that apply generally to the class, so that final injunctive

16 relief or corresponding declaratory relief is appropriate respecting the class as a whole . . . .” A

17 court may certify a class under Rule 23(b)(2) if class members complain of a pattern or practice

18 that is generally applicable to the whole class. Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.

19 1998). For instance, in Walters, the Ninth Circuit found class certification was appropriate under

20 Rule 23(b)(2) when a group of aliens sought to challenge the constitutionality of the Immigration

21 and Naturalization Service’s official forms and procedures. Id. In the present case, because

22 Plaintiffs challenge ESP’s medical system, which they allege subjects all of them to a significant

23
6Defendants contend that Plaintiff Terrence Brothers would not adequately represent the class because
24
he has attempted to negotiate a settlement with NDOC, and he is no longer classified to ESP. Defendants
25 contentions regarding Brothers are moot, as he has withdrawn as a named plaintiff in this action. (See Pls.’
Supplemental Br. (#32) at 26 n.8.) Defendants’ contention that Plaintiffs have not exhausted their
26 administrative remedies is discussed below. 9

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 10 of 14

1 risk of injury and unnecessary infliction of pain, certification under Rule 23(b)(2) is appropriate.7

2

F. Exhaustion

3

On January 13, 2009, this court ordered briefing on the issue of whether Plaintiffs

4 exhausted their administrative remedies under the Prison Litigation Reform Act pursuant to 42

5 U.S.C. § 1997e(a). After reviewing the parties’ submissions, the court finds Defendants have

6 failed to meet their burden of showing nonexhaustion. See Wyatt v. Terhune, 315 F.3d 1108, 1119

7 (9th Cir. 2003).

8

Defendants first argue that Plaintiff Riker’s grievance may have been untimely because his

9 grievance references an appointment that may have violated an administrative regulation that sets a

10 six-month deadline for filing grievances. The court agrees with Plaintiffs that Defendants’

11 argument is without merit, as Riker’s first grievance states that he is complaining about his

12 “current” lack of medical care. (Pls.’ Supplemental Br. (#32) Ex. V at 1.)

13

Second, Defendants argue that Plaintiffs’ claims were not administratively exhausted

14 because their prison-level grievances do not address the claims prosecuted in this action, that is,

15 the inadequacy of ESP’s medical care policies. The court disagrees. In Griffin v. Arpaio, the

16 Ninth Circuit held that if a prison’s grievance procedures do not specify a requisite level of detail,

17 a grievance meets PLRA’s exhaustion requirement if “it alerts the prison to the nature of the wrong

18 for which redress is sought.” No. 06-16132, 2009 WL 539982, at *2 (9th Cir. Mar. 5, 2009). The

19 Ninth Circuit further stated that

20

[a] grievance need not include legal terminology or legal theories unless they are in some

way needed to provide notice of the harm being grieved. A grievance also need not

21

contain every fact necessary to prove each element of an eventual legal claim. The

primary purpose of a grievance is to alert the prison to a problem and facilitate its

22

resolution, not to lay groundwork for litigation.

23
7Other courts have also certified classes under Rule 23(b)(2) when prisoners challenge the
24
constitutionality of prison conditions. See 7AA Charles Alan Wright et al., Federal Practice and Procedure
25 § 1776, at 112 n.18 (3d ed. 2005) (collecting cases where Rule 23(b)(2) class actions were used to challenge
prison policies or procedures alleged to violate prisoners’ Eighth Amendment right to be free from cruel and
26 unusual punishment). 10

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 11 of 14

1 Id. at *3. Here, Defendants have made no showing that Plaintiffs failed to meet any specificity

2 requirement for prison grievances. Moreover, Plaintiffs’ grievances are sufficient to alert ESP

3 officials of the alleged inadequate medical care. Griffin requires no greater showing.

4

Third, Defendants argue that Plaintiffs’ grievances demonstrate that they were not denied

5 constitutionally adequate medical care. Defendants’ contention is not well taken. Because this

6 case is at the class certification stage, any discussion of the merits is premature. See Eisen v.

7 Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (“We find nothing in either the language or history

8 of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit

9 in order to determine whether it may be maintained as a class action.”).

10

Fourth, Defendants argue that Plaintiff Mark Whittington did not fully exhaust his

11 administrative remedies with respect to one of his three grievances. Because Defendants offer no

12 evidence of nonexhaustion, their contention is without merit.

13

Finally, Defendants argue that Plaintiff Jeffrey Hosmer did not properly exhaust his

14 administrative remedies because he violated an administrative regulation against discussing more

15 than one issue in a grievance. Even assuming Hosmer violated this regulation, because prison

16 officials fully addressed the two-issue grievance on its merits, Hosmer has properly exhausted his

17 administrative remedies. See Jones v. Stewart, 457 F.Supp.2d 1131, 1136 (D. Nev. 2006).

18

G. Notice

19

Although Rule 23 only requires notice to class members in a Rule 23(b)(3) action, see Fed.

20 R. Civ. P. 23(c)(2)(B), the Rule also states that a court may direct appropriate notice to the class in

21 a Rule 23(b)(2) case, Fed. R. Civ. P. 23(c)(2)(A). Posting or distributing a court-approved form of

22 notice to inmates is the common method of serving notice on inmate classes. 8 Alba Conte &

23 Herbert Newberg, Newberg on Class Actions § 25:32 (4th ed. 2002); see also Dean v. Coughlin,

24 107 F.R.D. 331, 335 (S.D.N.Y. 1985) (ordering notice to a prisoner class via distribution to each

25 inmate and posting notice in the law library, clinic, and each housing area for the pendency of the

26 11

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 12 of 14

1 suit). Moreover, a leading treatise provides that giving some type of notice in Rule 23(b)(2)

2 actions is probably the best practice in most cases. See 7B Charles Alan Wright et al., Federal

3 Practice and Procedure § 1793, at 15 (3d ed. 2005). The court will exercise its discretion to order

4 notice to the absent class members as specified below.

5

H. Certification Order

6

Rule 23(c)(1)(B) provides that “[a]n order that certifies a class action must define the class

7 and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).” The

8 court therefore provides the following matters pursuant to Rule 23(c)(1)(B):

9

The class is defined as “all prisoners who are now, or in the future will be, in the custody of

10 the Nevada Department of Corrections at Ely State Prison in Ely, Nevada.”

11

The court will define the class’s claims as set forth in the Amended Complaint, specifically,

12 that the systemically inadequate medical care provided to ESP prisoners violates their rights under

13 the Eighth and Fourteenth Amendments to the United States Constitution.

14

The court also appoints Plaintiffs’ counsel as class counsel pursuant to Federal Rule of

15 Civil Procedure 23(g). Rule 23(g) sets forth the following requirements concerning appointment:

16

(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies

a class must appoint class counsel. In appointing class counsel, the court:

17 (A) must consider:

18 (i) the work counsel has done in identifying or

19

investigating potential claims in the action;

(ii) counsel's experience in handling class actions, other

20

complex litigation, and the types of claims asserted in

the action;

21

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing

22

the class;

23

(B) may consider any other matter pertinent to counsel's ability to fairly

and adequately represent the interests of the class;

24 (C) may order potential class counsel to provide information on any

25

subject pertinent to the appointment and to propose terms for

attorney's fees and nontaxable costs;

26 12

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 13 of 14

1

(D) may include in the appointing order provisions about the award of

attorney's fees or nontaxable costs under Rule 23(h); and

2 (E) may make further orders in connection with the appointment.

3 (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as

4

class counsel, the court may appoint that applicant only if the applicant is adequate

under Rule 23(g)(1) and (4).

5 . . . .

6 (4) Duty of Class Counsel. Class counsel must fairly and adequately represent the

7

interests of the class.

8

Plaintiffs have provided persuasive evidence on each of the Rule 23(g)’s requirements. In

9 response, Defendants offered only largely irrelevant arguments that are unsupported by any

10 evidence. The court therefore orders that Plaintiffs’ attorneys shall be appointed as class counsel.

11 IV. Conclusion

12

Plaintiffs and their counsel have fully met Federal Rule of Civil Procedure 23's

13 requirements for class certification. Because class certification is warranted, Defendants motion to

14 sever the named Plaintiffs’ claims into separate actions is denied as moot.

15 ///

16 ///

17 ///

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 13

Case 3:08-cv-00115-LRH-VPC Document 40 Filed 03/31/2009 Page 14 of 14

1

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Class Certification (#7) is

2 GRANTED.

3

IT IS FURTHER ORDERED that Defendants’ Motion to Sever (#23) is DENIED as moot.

4

IT IS FURTHER ORDERED that the parties shall submit a proposed notice within 30 days

5 that includes the following matters: (1) the nature of the action, (2) the definition of the class

6 certified, (3) the class claims, and (4) that a class member may enter an appearance through an

7 attorney if the member so desires. The court urges the parties to work together in the drafting of

8 the notice. Upon this court’s approval, the notice shall be posted in the law library, infirmary, and

9 each housing area of ESP for the duration of this action.

10

IT IS SO ORDERED.

11

DATED this 31st day of March 2009.

12

13

__________________________________

LARRY R. HICKS

14

UNITED STATES DISTRICT JUDGE

15

16

17

18

19

20

21

22

23

24

25

26 14

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

9 DAVID RIKER, et al.,

10

Plaintiffs,

11 vs.

12 JAMES GIBBONS, et al.,

13

Defendants.

14

)

)

)

3:08-cv-00115-LRH-VPC

)

)

)

ORDER

)

)

)

/

15

This matter came before the Court for a fairness hearing on October 25, 2010, at 10:00 a.m.,

16 regarding the proposed settlement agreement in this action seeking class-wide improvements in

17 medical care for prisoners at Ely State Prison (ESP). Plaintiffs and defendants each filed motions

18 (Docket #166 and #168) asking this Court to approve the proposed settlement agreement, including

19 the provision of negotiated attorneys’ fees and costs. The Court has carefully reviewed the entire

20 settlement agreement as well as the parties’ moving papers. The Court has further reviewed

21 objections from class members and responses by counsel to the same. The Court has heard oral

22 argument from plaintiffs’ and defendants’ counsel at the fairness hearing. This order approves the

23 settlement agreement and approves the payment of negotiated attorneys’ fees and costs to plaintiffs

24 in the lump sum amount of $325,000.

25 I. Procedural History

26

This is a class action lawsuit in which plaintiffs allege that defendants have provided

27 unconstitutionally inadequate medical care for prisoners at Ely State Prison. In the amended

28 complaint, plaintiffs seek declaratory and injunctive relief, but not monetary damages. (Docket

1 #15). On March 31, 2009, the Court approved plaintiffs’ motion for class certification, defining the

2 class as “all prisoners who are now, or in the future will be, in the custody of the Nevada

3 Department of Corrections at Ely State Prison in Ely, Nevada.” (Docket #40, at p. 12). On

4 September 30, 2009, this Court denied defendants’ motion for reconsideration of the stipulated

5 discovery plan. (Docket #97). Settlement discussions between counsel began in January 2010, with

6 Magistrate Judge Cooke conducting a settlement conference on June 10, 2010. (Fettig Decl., Martin

7 Decl., Docket #141). On July 15, 2010, the parties jointly moved for approval of the proposed

8 settlement agreement. (Docket #144). The proposed settlement agreement is at Docket #144-1.

9 The parties also submitted a proposed Class Notice of Settlement, at Docket #144-2, which this

10 Court approved on July 28, 2010. (Docket #146 and #147). The Court’s order set the fairness

11 hearing for October 25, 2010, directed class member objections to be filed by September 13, 2010,

12 and directed the parties’ responses to the objections to be filed by October 15, 2010. (Docket #146).

13 II. Discussion

14

A. Notice to the Class was Reasonable

15

Adequacy of notice to the class is the first issue that courts address when evaluating the

16 fairness of a proposed class settlement. See, e.g., In re Immune Response Sec. Lit., 497 F. Supp. 2d

17 1166, 1170 (S.D. Cal. 2007). Rule 23(e) requires that notice be provided “in a reasonable manner to

18 all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). In the instant

19 case, notice of the proposed class action settlement was accomplished by distributing a written

20 notice to each ESP prisoner in both English and Spanish, and posting both English and Spanish

21 versions of the notice in common areas throughout ESP, including the housing tiers, dining areas,

22 law library, work areas, visitation areas, the laundry, the infirmary, and recreation areas. (Martin,

23 McDaniel, and Fettig Declarations). The class notice was also added to the ESP orientation

24 handbook, which each new prisoner receives upon arriving at ESP. (Id.). Provision of notice in this

25 manner is sufficient in institutional litigation. See, e.g., Ruiz v. McKaskle, 724 F.2d 1149, 1152-53

26 (5th Cir. 1984) (notice placed in each housing unit’s “writ room,” published in prison’s newspaper,

27 and posted in housing units); Diaz v. Romer, 801 F. Supp. 405, 408 (D. Colo. 1992) (notice posted in

28 prison housing units and law libraries); Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1314 (M.D. Ala.

2

1 2004) (notice placed on bulletin boards in dormitories, law libraries, and dining areas). The notice

2 provided to the class in the instant case was reasonable, adequate, and sufficient to inform class

3 members of the terms of the settlement and their rights related to the proposed settlement.

4

B. Settlement Agreement is Fair, Adequate, and Reasonable

5

1. Standard under Fed. R. Civ. P. 23(e)

6

Federal Rule of Civil Procedure 23(e) provides that a class action shall not be dismissed or

7 compromised without the approval of the court. “If the proposal would bind class members, the

8 court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.”

9 Fed. R. Civ. P. 23(e)(2). Rule 23(e) requires court-approval of settlements in class actions to protect

10 “unnamed class members from unjust or unfair settlements affecting their rights when the

11 representatives . . . are able to secure satisfaction of the individual claims by a compromise.”

12 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The court must determine “whether a

13 proposed settlement in a class action is fundamentally fair, adequate, and reasonable.” Class

14 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992).

15

In assessing the fairness, adequacy, and reasonableness of a settlement agreement, the court

16 may consider some or all of these factors: (1) the strength of plaintiffs’ case; (2) the risk, expense,

17 complexity, and likely duration of further litigation; (3) the risk of maintaining a class action status

18 throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and

19 the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a

20 governmental participant; and (8) the reaction of the class members to the proposed settlement. See

21 Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003) (citation omitted), overruled on other grounds,

22 Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 617 (2010).1 Another formulation generally used in

23

24

1 In Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, the Ninth Circuit overruled the portion of

25

Molski that involved the standard for determining when monetary relief predominates over declaratory and injunctive relief, and thus precludes certification of a Rule 23(b)(2) class. “To the extent Molski

26

required the district court to inquire only into th e intent of the plaintiffs and focus prim arily on determining whether reasonable plaintiffs would brnig suit to obtain injunctive or dcelaratory relief even

27

in the absence of possible m onetary recovery, see Molski, 318 F.3d at 950 & n.15, it is overruled.” Dukes, 603 F.3d at 617. The part ofMolski setting forth factors for determining whether a class action

28

settlement is fair, adequate, and reasonable, Molski, 318 F.3d at 953, was unaffected by the Dukes decision.

3

1 determining whether a class action settlement is fair, reasonable, and adequate includes these

2 factors: (1) likelihood of recovery or success; (2) amount and nature of discovery or evidence; (3)

3 settlement terms and conditions; (4) recommendation and experience of counsel; (5) future expense

4 and likely duration of litigation; (6) recommendation of neutral parties, if any; (7) number of

5 objectors and nature of objections; and (8) the presence of good faith and the absence of collusion. 4

6 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:43 (4th ed. 2002).

7

The factors listed above are not exhaustive, and different factors may predominate in

8 different contexts. See Torrisi v. Tuscon Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993). “The

9 relative degree of importance to be attached to any particular factor will depend upon and be

10 dictated by the nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and

11 circumstances presented by each individual case.” Officers for Justice v. Civil Service Comm’n of

12 the City and County of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982). It is the settlement taken

13 as a whole, rather than the individual component parts, that must be examined for overall fairness.

14 Id. at 628.

15

The burden of proving the fairness of a settlement is on the proponents. 4 Alba Conte &

16 Herbert B. Newberg, Newberg on Class Actions § 11:42 (4th ed. 2002). “An initial presumption of

17 fairness is usually involved if the settlement is recommended by class counsel after arm’s-length

18 bargaining.” Id. “[T]here is a strong judicial policy that favors settlement, particularly where

19 complex class action litigation is concerned.” In re Syncor ERISA Lit., 516 F.3d 1095, 1101 (9th Cir.

20 2008) (citing Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992)). Below, the

21 relevant factors in the instant case are discussed.

22

2. Analysis of Factors

23

a. Strength of Plaintiffs’ Case

24

The likelihood of recovery involves weighing the strength of the plaintiffs’ case on the

25 merits against the relief offered in settlement. 4 Alba Conte & Herbert B. Newberg, Newberg on

26 Class Actions § 11:44 (4th ed. 2002). In the instant case, the amended complaint alleges that

27 defendants systematically provided inadequate medical care at Ely State Prison in violation of §

28 1983, the Eighth Amendment, and the Fourteenth Amendment. (Docket #15). A claim of

4

1 inadequate medical treatment does not constitute cruel and unusual punishment unless the

2 mistreatment rises to the level of “deliberate indifference to serious medical needs.” Estelle v.

3 Gamble, 429 U.S. 97, 106 (1976). The “deliberate indifference” standard involves an objective and

4 a subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently serious.”

5 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

6 Second, the prison official must act with a “sufficiently culpable state of mind,” which entails more

7 than mere negligence, but less than conduct undertaken for the very purpose of causing harm.

8 Farmer v. Brennan, 511 U.S. at 837. A prison official does not act in a deliberately indifferent

9 manner unless the official “knows of and disregards an excessive risk to inmate health or safety.” Id.

10

Plaintiffs present a substantial case supporting class-wide injunctive relief, however,

11 plaintiffs would face significant obstacles in proving their deliberate indifference claims at trial.

12 Class counsel states that, given the complex evidence that would be required to establish defendants’

13 liability, along with the inherent risks of litigation, the proposed settlement agreement achieves

14 guaranteed relief for the class. (Docket #166-1, at p. 4). Class counsel also represents that, during

15 the course of this litigation, defendants have begun to implement improvements to medical care

16 offered at ESP, including hiring a full-time doctor. (Docket #166-1, at p. 5). The settlement

17 agreement sets forth a detailed plan based on the standards of the National Commission on

18 Correctional Heath Care (NCCHC), which is widely-accepted as a model for best-practices in

19 correctional health care. The plan in the settlement agreement covers reforms such as improvements

20 in the administration of medications, chronic care treatment, infirmary care, off-site treatment

21 services, and the sick call system. (Docket #144-1, Settlement Agreement). The settlement

22 agreement calls for the appointment of an independent monitor, Dr. Ronald Shansky, a medical

23 expert in prison medicine, to assist in the development of necessary medical reforms and to monitor

24 ESP’s compliance with those reforms. (Docket #144-1, at pp. 17-20). The monitoring period will

25 last for two years, unless extended pursuant to the terms of the settlement agreement. (Docket #144-

26 1, at p. 20). During on-site inspections, Dr. Shansky will utilize a “monitoring tool,” which was

27 developed and submitted with the proposed settlement agreement, when assessing the prison’s

28 compliance. (Docket #144-1, at p. 19; Appendix to Settlement Agreement).

5

1

The terms of the proposed settlement agreement substantially achieve the goals of the

2 lawsuit. If the case continued to be litigated, plaintiffs and defendants would undertake further

3 discovery, involving expert witnesses, additional tours of ESP, and other aspects of costly litigation.

4 The proposed settlement agreement gives the class member plaintiffs appropriate medical care now,

5 without the delay and inherent risks involved in further litigation.

6

b. Risk, Expense, Complexity, and Likely Duration of Further Litigation

7

“In most situations, unless the settlement is clearly inadequate, its acceptance and approval

8 are preferable to lengthy and expensive litigation with uncertain results.” 4 Alba Conte & Herbert

9 B. Newberg, Newberg on Class Actions § 11:50 (4th ed. 2002). Class action challenges to conditions

10 of confinement are necessarily complex. Pursuing further litigation and trial, the outcome of which

11 is uncertain, risks losing the relief that is already guaranteed to plaintiffs in the proposed settlement

12 agreement. Litigation, including discovery, would be complex and lengthy. As discussed above, to

13 meet the deliberate indifference standard, plaintiffs face a heavy burden, as they would have to

14 present extensive statistical, anecdotal, and expert evidence. The continuation of this litigation

15 would involve substantial motion practice, discovery disputes, trial, and potential appeals. All of

16 this involves risk, expense, complexity, and a delay until plaintiffs may ultimately gain the relief

17 sought in this lawsuit.

18

c. Extent of Discovery Completed and Stage of the Proceedings

19

There is no precise measure for what constitutes sufficient evidence to enable a court to

20 analyze the contested questions of fact. Moreover, “the court need not possess evidence to decide

21 the merits of the issue, because the compromise is proposed in order to avoid further litigation.” 4

22 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:45 (4th ed. 2002). In this case,

23 both parties conducted initial discovery. Plaintiffs’ medical experts have conducted a three-day tour

24 and review of ESP prior to the commencement of settlement negotiations. (Fettig Decl.). Prior to

25 that, class counsel had conducted significant factual investigation for over a year prior to filing the

26 original complaint. (Id.). The absence of extensive formal discovery is immaterial where the parties

27 have sufficient information to make an informed decision about settlement. See In re Mego

28 Financial Corp. Litig., 213 F.3d 454, 459 (9th Cir. 2000). In the instant case, sufficient discovery

6

1 was conducted to allow counsel to make an informed decision regarding settlement.

2

d. Experience and Views of Counsel

3

The recommendation of experienced counsel in favor of settlement carries a “great deal of

4 weight” in a court’s determination of the reasonableness of a settlement. In re Immune Response

5 Sec. Litig., 497 F. Supp. 2d 1166, 1174 (S.D. Cal. 2007). “The weight accorded to the

6 recommendation of counsel is dependent on a variety of factors; namely, length of involvement in

7 litigation, competence, experience in the particular type of litigation, and the amount of discovery

8 completed.” 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:47 (4th ed. 2002).

9 In the instant case, plaintiffs are represented by the National Prison Project of the ACLU Foundation

10 (NPP), the ACLU of Nevada, and Holland & Knight, LLP. The ACLU has extensive experience

11 litigating class actions regarding prison conditions. See, e.g., Hadix v. Johnson, 65 F.3d 532, 534

12 (6th Cir. 1995) (noting that the director of NPP is “a nationally recognized expert in federal court

13 institutional litigation); Cody v. Hillard, 88 F. Supp. 2d 1049, 1057 (D. S.D. 2000) (noting that NPP

14 attorneys “pursued the class’ interests vigorously.”); Ilick v. Miller, 68 F. Supp. 2d 1169, 1175 (D.

15 Nev. 1999) (the NPP’s lawyers “touted as being among the most experienced in the nation in this

16 field”), abrogation on other grounds recognized by Laube v. Allen, 506 F. Supp. 2d 969, 988 (M.D.

17 Ala. 2007); Diaz v. Romer, 801 F. Supp. 405, 410 (D. Colo. 1992) (class settlement approved where

18 class counsel was assisted “by experts in the field of prison rights litigation working with the

19 National Prison Project of the American Civil Liberties Union.”). In addition, Holland & Knight’s

20 Community Services Team, which also serves as plaintiffs’ counsel in this action, has a

21 distinguished record of providing legal representation to under-represented individuals and groups,

22 and has been judicially recognized for such work. Concerned Parents of Jordan Park v. St.

23 Petersburg Hous. Auth., 934 F. Supp. 406, 411 (M.D. Fla. 1996) (“the Community Services Team at

24 Holland & Knight brings a unique and powerful force to bear on issues affecting traditionally

25 unrepresented and under-represented individuals. It has the financial ability and legal acumen to

26 prosecute complex cases pro bono publico, in the public interest”). In class actions involving

27 similar claims as the instant action, courts have approved settlement agreements, in part, because

28 class counsel were experienced and competent civil rights attorneys. See Gaddis v. Cambell, 301 F.

7

1 Supp. 2d 1310 (M.D. Ala. 2004); Laube v. Campbell, 333 F. Supp. 2d 1234, 1246 (M.D. Ala. 2004).

2

In this case, class counsel has extensive experience litigating prisoner civil rights claims, and

3 Eighth Amendment claims in particular. (Docket #166-1, at p. 8). Counsel engaged in lengthy and

4 vigorous arm’s-length negotiations with defendants’ attorneys in the Nevada Attorney General’s

5 Office. (Fettig and Martin Declarations). Class counsel has consistently consulted with experts

6 throughout this litigation, and based on these consultations, has determined that the terms agreed

7 upon in the settlement represent a fair, adequate, and reasonable settlement of plaintiffs’ claims.

8 (Docket #166-1, at p. 8). These factors weigh heavily in favor of approving the settlement

9 agreement.

10

e. Equal Distribution of Relief

11

Courts scrutinize the amount offered in settlement to determine whether the plaintiffs

12 received adequate compensation for releasing their claims. 4 Alba Conte & Herbert B. Newberg,

13 Newberg on Class Actions § 11:46 (4th ed. 2002). This inquiry often focuses on the terms of the

14 agreement that “directly lend themselves to pursuit of self-interest by class counsel and certain

15 members of the class – namely, attorneys’ fees and the distribution of any relief, particularly

16 monetary relief, among class members.” Staton v. Beoing Co., 327 F.3d 938, 960 (9th Cir. 2003).

17 Absent the district court’s failure to note “glaring inequity” in the other terms of a settlement,

18 reversal of a court approval of a settlement is “rare . . . unless the fees and relief provisions clearly

19 suggest the possibility that class interests gave way to self-interest.” Id. at 961.

20

In this case, the plaintiff-class never sought monetary damages. The amended complaint

21 seeks class-wide injunctive and declaratory relief. (Docket #15). The relief obtained from the

22 settlement agreement – improvements in the provision of medical care at ESP – achieves the goals

23 of the litigation. All class members are treated the same under the terms of the settlement

24 agreement. The agreement does not impact individual damages cases that the class members have

25 brought or will bring, and does not forfeit the class’s right to seek redress in the future, if conditions

26 proscribed by the settlement resume. The settlement negotiations were conducted in an adversarial,

27 arm’s-length manner, by plaintiffs’ counsel and defendants’ counsel. (Fettig and Martin

28 Declarations).

8

1

f. Reaction of the Class Members to the Proposed Settlement

2

Approximately 1000 inmates reside at Ely State Prison, comprising the class member

3 plaintiffs in this action. Only twelve inmate class members filed objections to the proposed

4 settlement agreement. The number of objectors is a relevant, though not controlling, factor in the

5 fairness analysis. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977); 4 Alba Conte &

6 Herbert B. Newberg, Newberg on Class Actions § 11:48 (4th ed. 2002) (“Courts have taken the

7 position that one indication of the fairness of a settlement is the lack or small number of

8 objections.”). The small number of objections is an indication that the settlement is fair, adequate,

9 and reasonable.

10

The twelve inmates who filed written objections were: Michael Allen Richardson (Docket

11 #149), Derek Constantino (Docket #150), David Owens Hooper (Docket #151), William Leonard

12 (Docket #152), Jeremy A. Crozier (Docket #153), Kitrick Aaron Powell (Docket #154), James

13 Ofeldt (Docket #155), Antonio Doyle (Docket #156), Frank Peck (Docket #157), Marritte Funches

14 (Docket #158), David Ruffa (Docket #159), and Said Elmajzoub (Docket #160). The court must

15 provide a “reasoned response” to the objections. Linney v. Cellular Alaska P’ship, 151 F.3d 1234,

16 1239 (9th Cir. 1998) (citations omitted).

17

Inmates Richardson, Hooper, Leonard, Powell, and Funches object to the settlement due to

18 their specific ongoing medical issues. (Docket #149, #151, #152, #154, and #158). The terms of the

19 settlement address more systemic issues in the delivery of medical care at Ely State Prison and are

20 not intended to address specific claims by each class member related to their specific medical care.

21 Whereas approval of the settlement agreement will begin improvement in Ely’s delivery of medical

22 care, further litigation would only prolong the suffering of these inmates, with no guarantee of future

23 relief.

24

Inmates Doyle and Elmajzoub object to the settlement based on their specific issues

25 regarding the length of time to receive an x-ray or refills of prescriptions. (Docket #156 and #160).

26 In the proposed settlement agreement, issues of timing for refills and appointments are addressed

27 and will be evaluated by the Monitor during his inspections of Ely State Prison.

28

Inmates Ofeldt, Ruffa, and Elmajzoub object to the settlement based on claims involving

9

1 mental health care, dental care, co-pays, and disability access at Ely State Prison. (Docket #155,

2 #159, #160). These issues (mental health care, dental care, co-pays, and disability access) were

3 never brought in this action; because they are outside the scope of this lawsuit, these issues are not

4 an appropriate subject of settlement.

5

Inmates Crozier and Powell object to the settlement due to concerns about claim preclusion

6 and their individual lawsuits. (Docket #153 and #154). The settlement specifically does not impact

7 any individual damage actions brought by class members, nor does it impact actions for injunctive

8 relief arising after the dismissal of the instant action. It does, however, preclude injunctive claims

9 filed prior to the dismissal of this action, if those claims arise from the same factual predicate raised

10 in the instant case. Class litigation often affects some existing litigation. The class is being

11 provided relief for the claims made in the instant action, so that individuals with claims based on an

12 identical factual predicate will have access to relief through the settlement agreement.

13

Inmates Richardson, Constantino, Leonard, Peck, and Funches object to the settlement,

14 fearing that once the monitoring period ends, defendants will no longer provide adequate medical

15 care for inmates at Ely State Prison. (Docket #149, #150, #152, #157, and #158). The settlement

16 agreement contains a provision that relief can be extended after the end of the two-year monitoring

17 period, if the Monitor determines that defendants have not achieved substantial compliance with the

18 settlement agreement. (Settlement Agreement, Docket #144-1, at p. 23). The settlement agreement

19 will achieve the goal that the plaintiff-class sought in bringing this action.

20

Inmates Crozier, Peck, and Funches object to the settlement because they want a declaration

21 from the Court that defendants violated their rights and committed wrongs. (Docket #153, #157, and

22 #158). While the amended complaint did seek declaratory relief, class counsel has weighed the risks

23 involved in pursuing this litigation further. An adverse decision on the merits of plaintiffs’ claims

24 would result in not only denial of declaratory relief, but would deprive plaintiffs of the relief

25 guaranteed by the settlement agreement, to wit, improvement in ESP’s delivery of medical care.

26

The objections of the twelve class plaintiff members have been considered carefully by this

27 Court. The objections of the twelve inmates do not outweigh the other factors, discussed above,

28 which weigh heavily in favor of approving the settlement agreement as fair, adequate, and

10

1 reasonable.

2

C. Negotiated Attorneys’ Fees and Costs

3

1. Fees and Costs are Reasonable and Proper

4

In the proposed settlement agreement, both parties have agreed to a one-time lump sum

5 payment of $325,000 to cover all of plaintiffs’ attorneys’ fees and costs incurred during the course

6 of this litigation, and any fees and costs that plaintiffs’ counsel will incur during the monitoring

7 period of the settlement. (Settlement Agreement, at pp. 28-29). “In a certified class action, the court

8 may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the

9 parties’ agreement.” Fed. R. Civ. P. 23(h). A claim for an award of attorneys’ fees must be made by

10 motion under Rule 54(d)(2) . . . . Fed. R. Civ. P. 23(h)(1). Notice of the amount of fees must be

11 given to class members in a reasonable manner. (Id.). Notice of fees and costs is generally

12 combined with the notice of proposed settlement. See Fed. R. Civ. P. 23(h)(1), Advisory Committee

13 Notes, 2003 Amendments. In the instant action, the notice of proposed settlement advised the class

14 members that the agreement authorizes the payment of attorneys’ fees and costs from defendants in

15 the amount of $325,000. (Docket #147, Court-Approved Notice to Class, at p. 7). As discussed

16 above, the notice was provided to all class members in a reasonable manner.

17

2. Plaintiffs’ Motion for Fees and Costs

18

The parties have agreed upon the lump sum payment of $325,000 in the settlement

19 agreement and defendants voice no objection to the agreed-upon amount of fees and costs.

20 Plaintiffs’ counsel moves for the award of attorneys’ fees and costs under Fed. R. Civ. P. 54(d)(2),

21 as required by Fed. R. Civ. P. 23(h)(1). (Docket #166-1, at pp. 14-21). Local Rule 54-16 mandates

22 that motions for attorneys’ fees must include an itemization and description of work performed and

23 costs incurred, and a declaration by the attorney responsible for billings authenticating that

24 information and confirming that fees and costs are reasonable. Rule 54-16, at Part IA of District of

25 Nevada’s Local Rules of Court. Plaintiffs have submitted the declaration of lead attorney Amy

26 Fettig, which authenticates the attached billing and cost statements for all attorneys that worked on

27 plaintiffs’ case. (Docket #166-3, Fettig Decl. and Billing/Cost Statements). Plaintiffs’ attorney has

28 satisfied the twelve enumerated factors in Local Rule 54-16(b)(3)(A-L), as applied to the instant

11

1 case.

2

a. Results obtained and the amount involved

3

As discussed previously in this order, the results obtained for the class in the proposed

4 settlement agreement substantially achieve the relief sought in this lawsuit and may exceed relief

5 available at trial.

6

b. Time and labor required

7

The total number of attorney work hours expended thus are 2,501.54, at an hourly rate of

8 $208.50. (Fettig Decl.). The hourly rate of $208.50 is the rate capped under the Prison Litigation

9 Reform Act (PLRA).2 This rate is considerably less than the market value rate charged in both

10 Washington, D.C. and Nevada, by lawyers of comparable skill and experience for similarly complex

11 litigation. (Fettig Decl.). Based on this significantly lower hourly rate, the total amount of attorney

12 fees are $386,013.69. The total costs expended are $83,734.89. Total fees and costs expended to

13 date are $469,748.58. (Fettig Decl.). Plaintiffs’ counsel have also waived further claims for fees

14 and costs accrued during the monitoring period of the settlement agreement, estimated to be 960

15 hours of attorney work and a minimum of $10,000 in costs, making total estimated future attorneys’

16 fees and costs $210,160. (Fettig Decl.). Therefore, the attorneys’ fees and costs agreed to in the

17 settlement of $325,000 represents more than a 50% reduction in fees and costs for work already

18 performed and to be performed during the monitoring period. (Fettig Decl.). The attorneys’ fees

19 and costs are more than fair and reasonable, based on the past, present, and future work that

20 plaintiffs’ counsel has and will expend on this case.

21

c. Novelty and difficulty of questions involved

22

The Supreme Court has recognized that, for purposes of determining fees under 42 U.S.C. §

23

24

2 Under the PLRA, “[n]o award of attorneys’ efes . . . shall be based upon an hourly rate greater

25

than 150 percent of the hourly rate established under section 3006A of Title 18, for payment of courtappointed counsel [under the Crim inal Justice Act (CJA)].” 42 U.S.C. § 1997e(d)(3). The Judicial

26

Conference has authorized a CJA rate of $139.00 per hour, effective January 1, 2010. (Mem o, J. Gallant, Administrative Office of the Courts, attachedas Exhibit D to Fettig Decl.). Thus, as oJfanuary

27

1, 2010, the PLRA rate is $208.50. See Webb v. Ada Cnty. , 285 F.3d 829, 839 (9 th Cir. 2002), cert. denied, 537 U.S. 948 (2002) (hourly r ate established under § 3006A is the amount authorized by the

28 Judicial Conference, not the amount actually appropriated by Congress).

12

1 1988, civil rights cases are presumptively deemed to be as complex as antitrust cases. Blum v.

2 Stenson, 465 U.S. 886, 893 (1984). Plaintiffs’ counsel are familiar with the intricacies of § 1983,

3 constitutional law, and the limitations imposed on prisoner litigants by the PLRA.

4

d. Skill requisite to perform legal services

5

Considerable skill was needed to perform the legal services involved in certification of the

6 class action, motion practice, discovery, developing protocol for expert tours of ESP, and months of

7 negotiation required to formulate the settlement agreement.

8

e. Preclusion of other employment

9

Counsel’s decision to litigate this case precluded them from working on other civil rights

10 cases. (Fettig Decl.).

11

f. Customary fee

12

As discussed above, the attorneys’ fees agreed upon in the instant case represents a 50%

13 reduction of actual fees and costs that plaintiffs’ counsel has accrued and will accrue over the course

14 of this litigation and monitoring period of the settlement.

15

g. Whether fee is fixed or contingent

16

Counsel’s fees were purely contingent in this case. (Docket #166-1). Counsel states that the

17 ACLU never accepts any fees from its clients other than attorneys’ fees awarded or settled under 42

18 U.S.C. § 1988. (Docket #166-1, at p. 19). Plaintiffs’ counsel has advanced all expenses incurred in

19 this litigation, and will not receive any reimbursement and/or compensation except for the fees and

20 costs contemplated in the settlement agreement. (Docket #166-1; Fettig Decl.).

21

h. Time limitation imposed by client or circumstances

22

This case imposed a significant time commitment on plaintiffs’ counsel after class

23 certification, during discovery, and up until the finalization of the settlement, following six months

24 of negotiation. (Fettig Decl.).

25

i. Experience, reputation, and ability of the attorneys

26

Plaintiffs’ attorneys are well-known, capable, and experienced litigators, as discussed earlier

27 in this order.

28

13

1

j. Undesirability of the case

2

A general negative stigma is associated with corrections litigation. In the instant action,

3 plaintiffs’ case would be considered undesirable by the civil rights bar. The case was fact-intensive,

4 time-consuming, and expensive. The cost of retaining medical experts was significant. Several

5 provisions of the Prison Litigation Reform Act (PLRA), including limits on attorney fees, make

6 litigation difficult for plaintiffs’ attorneys representing prisoners. (Fettig Decl.).

7

k. Nature and length of professional relationship with clients

8

Counsels’ professional relationship with plaintiffs dates back to 2007, when the ACLU

9 began investigating medical conditions at ESP. (Fettig Decl.).

10

l. Awards in similar cases

11

The attorneys’ fees and costs in this case are reasonable in light of awards in similar cases.

12 See Graves v. Arpaio, 633 F. Supp. 2d 834, 853 (D. Az. 2009) (awarding attorneys’ fees of

13 $1,239,491.63 and non-taxable costs of $123,221.77, in jail conditions class action case); Lopez v.

14 San Francisco Unified Sch. Dist., 385 F. Supp. 2d 981, 1004 (N.D. Cal. 2005) (awarding more than

15 $5 million in attorneys’ fees and $900,000 in costs for “hard-fought” four-year civil rights litigation

16 that ended in settlement before trial).

17

The negotiated attorneys’ fees and costs in the lump sum amount of $325,000, as set forth in

18 the settlement agreement, being reasonable, fair, and proper, are approved by this Court. See Fed. R.

19 Civ. P. 23(h); Fed. R. Civ. P. 54(d)(2); Local Rule 54-16.

20

D. Dismissal and Entry of Judgment

21

Upon approval of a class action settlement, the court enters judgment of dismissal. See Fed.

22 R. Civ. P. 23(e) and Fed. R. Civ. P. 23(c)(3); 4 Alba Conte & Herbert B. Newberg, Newberg on

23 Class Actions § 11:59 (4th ed. 2002). The judgment must identify the class members: “Whether or

24 not favorable to the class, the judgment in a class action must: (A) for any class certified under Rule

25 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members.” Fed. R.

26 Civ. P. 23(c)(3)(A). The instant class action was certified under Rule 23(b)(2), as it seeks only

27 declaratory and injunctive relief. (Order Certifying Class, Docket #40, at pp. 9-10). The judgment

28 must therefore include and describe the class members of this action, specifically: “The class is

14

1 defined as all prisoners who are now, or in the future will be, in the custody of the Nevada

2 Department of Corrections at Ely State Prison in Ely, Nevada.” (Docket #40, at p. 12). The purpose

3 of Rule 23(c)(3)’s requirement that the judgment must include and describe the class is to prevent

4 “one-way” intervention by defining the class of people to be affected by the judgment and providing

5 that the judgment will be binding on the members of the class. Advisory Committee Notes, 1966

6 Amendments to Fed. R. Civ. P. 23(c)(3).

7 III. Conclusion

8

IT IS THEREFORE ORDERED that the proposed settlement agreement (Docket #144-1)

9 is APPROVED as fair, reasonable, and adequate, pursuant to Fed. R. Civ. P. 23(e).

10

IT IS FURTHER ORDERED that the negotiated attorneys’ fees and costs in the lump sum

11 amount of $325,000 are APPROVED. Plaintiffs’ motion for attorneys’ fees and costs is

12 GRANTED, pursuant to Fed. R. Civ. P. 23(h), Fed. R. Civ. P. 54(d)(2), and Local Rule 54-16.

13

IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE.

14

IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT in

15 this action as SETTLED. The Clerk’s judgment SHALL INCLUDE the following description

16 of the plaintiff-class members: “The class is defined as all prisoners who are now, or in the

17 future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in

18 Ely, Nevada.”

19

Dated this 27th day of October, 2010.

20

21

22

LARRY R. HICKS

23

UNITED STATES DISTRICT JUDGE

24

25

26

27

28

15

 
 1

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

2

3 DAVID RIKER et al.,
4 5
v. 6
JAMES GIBBONS et al., 7 8

Plaintiffs, Defendants.

)

)

)

)

3:08-CV-00115-LRH-RVAPMC

)

)

)

)

)

)

)

9

COURT APPROVED
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

10

Riker v. Gibbons, Case No. 3:08-CV-00115-LRH-VPC (D. Nev.)

11

TO: ALL PRISONERS AT THE ELY STATE PRISON, ELY, NV

12

THE PURPOSE OF THIS NOTICE IS TO INFORM YOU OF:

13

 THE TERMS OF THE PROPOSED SETTLEMENT AGREEMENT

14

 THE REASONS WHY CLASS COUNSEL BELIEVE THAT

15

SETTLEMENT IS IN THE BEST INTERESTS OF THE CLASS

16

 YOUR RIGHT TO OBJECT TO THE SETTLEMENT

17
BACKGROUND
18 In March of 2008, a federal lawsuit was filed in the U.S. District Court for the District of Nevada
19 alleging inadequate medical care at Ely State Prison (ESP) in Ely, Nevada. An Amended Complaint in this action was filed on or about April 16, 2008. Lawyers with the National Prison
20 Project of the American Civil Liberties Union Foundation (ACLU), the ACLU of Nevada, and Holland & Knight, LLP appeared on behalf of the named plaintiffs in the lawsuit. Plaintiffs
21 requested that the lawsuit be recognized as a Class Action, so that the interests of all prisoners at ESP would be represented. The Court subsequently granted class certification to a class of
22 prisoners defined as “all prisoners who are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in Ely, Nevada.” The lawsuit did not ask
23 for any money damages. Instead, it asked that the Court declare that the medical care at ESP was unconstitutional, and order Defendants to undertake changes to the provision of medical care at
24 the prison.

25
PROPOSED SETTLEMENT AGREEMENT
26 The Parties have agreed to settle this lawsuit on the terms stated below. The Proposed Settlement
27 Agreement does not constitute any admission of liability by the Defendants. Defendants deny the truthfulness of the claims in this lawsuit and deny having engaged in any culpable conduct.
28

2

1 After much deliberation, Class Counsel have concluded that the terms and conditions of the

Proposed Settlement Agreement are in the best interests of the Class.

2

1. Why Class Counsel Support the Settlement

3

In working on this case, Class Counsel have visited ESP many times. We have interviewed many

4 prisoners and corresponded with hundreds more about medical care at ESP. We have reviewed

many records. Two medical experts hired by Class Counsel, a medical doctor and a nurse

5 practitioner, inspected ESP for three days, interviewed prisoners and ESP medical staff, reviewed

records, and observed multiple aspects of care at the facility. In deciding to support a settlement

6 of this lawsuit, Class Counsel carefully weighed the benefits of the proposed settlement terms

against the risks of an unfavorable outcome in the litigation and the time needed to prosecute the

7 case through a trial and likely appeals. After considering all these issues, it is our professional

opinion that the Proposed Settlement Agreement will improve medical care for the Class more

8 quickly and comprehensively than any result the Class might obtain through further litigation of

this lawsuit.

9

2. 10

A Summary of the Key Terms of the Proposed Settlement Agreement

11

 The Parties agree to the appointment of an expert medical monitor for a term of two years. The monitor shall inspect ESP three months after the Agreement is finalized and every six

12

months thereafter to evaluate Defendants’ compliance with the terms of the Agreement.

If, at the end of two years, Defendants have achieved substantial compliance with the

13

terms of the Agreement, medical monitoring shall cease. If Defendants have not achieved

substantial compliance with the Agreement, Plaintiffs’ counsel may bring Defendants’

14

alleged non-compliance to a mediator and the mediator shall determine whether or not

15

medical monitoring shall continue. The mediator’s decisions are binding on both parties. In this regard, Defendants shall achieve substantial compliance in the following areas, as

16

confirmed by the Monitor, according to the timetable set forth in the Agreement, and

summarized as follows1:

17

18

 MEDICATIONS o The Monitor will evaluate and propose any necessary changes to the timely

19

dispensing and administration of medications at ESP, as well as increased

oversight and accountability mechanisms that may be necessary in the opinion of

20

the Monitor, for the safe and timely administration and dispensing of medication at

ESP. Defendants will set-up a medication dispensing and administration system

21

that complies with the Monitor’s recommendations.

22

o Defendants shall ensure that patients refusing medication are provided counseling regarding the consequences of incomplete adherence; and shall ensure that both

23

the refusal and the counseling is documented and in-person.

o When three consecutive doses are refused by the patient, a practitioner shall be

24

notified. Subsequently, the practitioner shall meet with the patient and discuss his

refusal to take the medication, whereupon the medication shall be discontinued or

25

the patient shall agree to take the medication. Defendants shall ensure that if

26

medication is not administered to a patient, the reason is documented and signed by the health staff responsible for medication administration.

27

o ESP staff shall ensure that refills or renewals of nurse-administered medications

28 1 This summary is not intended to act as a substitute for the terms of the Settlement Agreement.

3

1

are done in a timely manner. Patients shall be responsible for requesting “keep-

2

on-person” (KOP) refills or renewals of their refillable medications, in a timely manner and ESP medical staff shall ensure that timely KOP refills are renewed

3

before the patients’ prescription supply runs out. o Defendants shall develop protocols for the treatment of acute and chronic pain,

4

including the safe administration of narcotics, if and where appropriate, for KOP

medications, outside the infirmary and treatment of acute pain that does not

5

involve placement of the patient in the infirmary.

6

o In consultation with the monitor, Defendants shall ensure that medication is administered at a medically appropriate time and in a medically appropriate

7

manner, including dietary considerations.

8

 CHRONIC CARE

o The Monitor shall evaluate the chronic disease management process, and propose

9

any necessary changes to that process, including enrollment and follow-up care at

10

ESP. o In consultation with the Monitor, Defendants shall ensure that for each individual

11

identified with a chronic illness requiring ongoing medical care, a health care

treatment plan shall be developed that includes, at a minimum, the following: a

12

written initial evaluation containing a plan to achieve good disease control by a

practitioner; regular check-ups at least once every three (3) months by a

13

practitioner; a yearly check-up with a physician only if the patient is in poor

14

control of his disease and/or if determined necessary by the practitioner; and baseline and yearly laboratory work, and other diagnostics appropriate for the

15

disease as needed. The treatment plan’s short and long range goals will be

reviewed and updated at least annually in a face-to-face assessment by the

16

practitioner or more frequently as determined by the practitioner. Any patient with

more than one chronic disease will not require separate chronic care clinic visits

17

for each disease, but should be treated for all diseases during his annual chronic

18

care visit or as directed by the practitioner.

19

 SICK CALL

o The Monitor shall evaluate and propose any necessary changes in the Sick Call

20

process at ESP and Defendants shall implement those changes. Defendants will

21

ensure that Licensed Practical Nurses (LPNs), Registered Nurses (RNs) and midlevel practitioners, such as Advanced Practitioners of Nursing (APNs), perform

22

only functions within the scope of their state professional licenses and according to

proper protocols, and that each is properly supervised according to the scope of

23

his/her license. The Monitor shall assess the sufficiency of the medical staffing to

meet the medical-staffing needs at ESP, and to make recommendations for any

24

changes, where indicated, and Defendants shall ensure that any indicated changes

25

are implemented. In no event, shall a medical doctor be available less than two (2) days per week.

26

o Defendants shall ensure that sick call will be available seven days per week to

patients in all areas of the population at ESP, including general population,

27

segregation units or “lock-up cells,” isolation units, the condemned mens’ unit and

special management units. Medical kites will be picked up by nurses on a daily 28

4

1

basis from each unit and triaged by a nurse or higher level staff no later than

2

twenty-four (24) hours after receipt. A patient requesting medical care shall be seen by a Registered Nurse (RN) or higher level practitioner within 48 hours.

3

o Any patient who is seen by a nurse two consecutive times for the same symptoms will be referred to a higher level practitioner without incurring an additional co-

4

pay charge for a medical visit. This does not require two sick calls before a patient

can be referred to a higher level practitioner; a registered nurse may make such a

5

referral after a single sick call in accordance with appropriate triage protocols.

6

o Patients presenting symptoms or patients having symptoms reported on their behalf, requiring emergency or infirmary care shall be given timely and

7

appropriate medical care.

8

 INTRA-SYSTEM TRANSFERS AND ASSESSMENTS

o The Monitor will evaluate and propose appropriate changes in the medical

9

assessments and evaluation process performed as a result of intra-systems transfers

10

into ESP. In particular, all prisoners entering ESP should be medically screened by a registered nurse or higher level practitioner within 12 hours, but in no event

11

shall such screening occur later than 24 hours of admission. Such screening shall

take place in a confidential setting and the records of HIV positive patients shall be

12

labeled in such a manner as to prevent inadvertent disclosure of a patient’s HIV

status. The results of this screening shall be documented in each patient’s medical

13

record. The minimum components of the screening shall include, but shall not be

14

limited to, the following: documented inquiry into current illness, communicable diseases, current tuberculosis status, allergies, current medications, dental status,

15

current mental health problems, suicidal ideation, chronic health problems,

pending specialty appointments, signs of trauma, and a documented explanation of

16

the procedures for access to medical services.

o In addition to explaining the procedures for accessing care, ESP staff shall provide

17

all patients at intake with a written description of these procedures that the patients

18

may keep.

19

 SCHEDULED OFF-SITE SERVICES

o The Monitor shall evaluate and propose any necessary changes in the system for

20

referring ESP patients for off-site medical consultations and Defendants will

21

ensure that the changes are implemented. o Defendants shall ensure that patients requiring necessary medical services that

22

cannot be provided at ESP in a timely manner or at all, shall be provided timely

access to an outside specialist for diagnostic services or medical care, according to

23

the priority or urgency of the ordering clinician. Where approval or other response

by the Utilization Review Panel is required for specialty care, including for follow-

24

up care, such approval or other response shall timely be documented in a tracking

25

system. o A member of the NDOC health staff shall be designated to track all requests for

26

specialty and off-site care, the status of such requests, provision of care, and any

necessary follow-up or after care ordered for ESP patients. That same staff

27

member will work with other health care staff and custody staff to ensure that the

ordered care is provided. Subject to any required approval by the Utilization 28

5

1

Review Panel, treatment orders shall be carried out in the manner prescribed by

2

the specialist, unless a deviation or override is ordered by the practitioner at the facility. Such a deviation or override must be affirmatively medically justified and

3

documented in the medical record of the patient.

4

 INFIRMARY CARE

o Under the guidance of the Monitor, Defendants will ensure that ESP provides

5

adequate infirmary care for patients requiring close medical monitoring and/or

6

nursing assistance. o All infirmary patients must be within sight or sound of nursing or other health care

7

staff at all times. Physician and/or mid-level practitioner rounds shall be

conducted on a daily basis or as specified by the categories of care being provided,

8

and an RN or higher level medical provider shall be present at the infirmary each

day with a minimum of eight (8) hours of RN care and sixteen (16) hours of LPN

9

care per day. Custody staff will not provide any routine medical care or medical

10

observation in the infirmary. Patients admitted in the infirmary will not have to “kite” (submit a medical request form) for medical care.

11 The above summary does not include all the terms and conditions of the Proposed Settlement

12

Agreement. The only complete statement of the terms of the proposed settlement is found in the actual Proposed Settlement Agreement. You may obtain a copy of the Proposed Settlement

13 Agreement by writing to:

14

Amy Fettig ATTN: RIKER V. GIBBONS, 3:08-cv-00115-LRH-VPC

15

ACLU National Prison Project 915 15th St., NW, 7th Floor

16

Washington, DC 20005

17 3. The Settlement Must Be Approved By The Court Before It is Final.

18

Under federal class action rules, before this lawsuit can be settled, the Court must find that the settlement terms are fair, reasonable, and adequate to all Parties. Court approval is an additional

19

level of protection for all class members. While Class Counsel strongly believe that this settlement is in the best interests of all current and future prisoners at ESP, we recognize that

20

some class members may not support the settlement. If you do not think this settlement is a good idea, you have the right to file a formal objection with the Court.

21 After reviewing all timely objections, the Court will hold a Fairness Hearing on

22

___O__ct_o_b_e_r _2_5______, 2010 at _1_0:_0_0_a_m_, in the Bruce R. Thompson Federal Building and U.S. Courthouse in Reno, Nevada, to decide whether or not to approve the Proposed Settlement

23

Agreement. If the Court decides that the settlement terms are fair, reasonable, and adequate, then the Proposed Settlement Agreement will become final. If the Court approves the Proposed

24

Settlement Agreement, the parties will jointly move for the case to be dismissed with prejudice. Thereafter, any disputes regarding implementation of the Agreement will be handled through the

25 dispute resolution mechanism set forth in the Agreement and/or state court.

26

If the Court decides not to approve the Proposed Settlement Agreement, the settlement will be voided and will have no further effect. The case will not be settled, but will go to trial. If that

27

happens, there is no assurance that any decision at trial will be in favor of the class members, or would be upheld on appeal; or that, even if there is a favorable trial decision, it will be as

28 favorable to class members as the Proposed Settlement Agreement would have been.

6

1 4. You Have the Right to Object to the Settlement.
2 If you have no objection to the Proposed Settlement Agreement, you do not have to do anything.
3 If, however, you believe the Court should not approve the settlement because you object for any
4 reason to the terms of the Proposed Settlement Agreement, you may object. You must submit your objection in writing to the Court. Any objection must contain the following information:
5 a. The case name and number: RIKER V. GIBBONS, 3:08-cv-00115-LRH-VPC
6

7

b. Your full name and NDOC number

8

c. A concise explanation of why you object to the Proposed Settlement Agreement

9 For your objection to be considered by the Court, you must mail it by _S_e_p_t_._1_0_,_2__0_1_0_ to the 10 Clerk of the Court, with a copy to all Counsel, at the following addresses:

11

12

Clerk of the Court

Amy Fettig

ATTN: RIKER V. GIBBONS, 3:08-cv-00115- Staff Counsel

13

LRH-VPC

ATTN: RIKER V. GIBBONS, 3:08-cv-00115-

Bruce R. Thompson Federal Building and U.S. LRH-VPC

14

Courthouse United States District Court

ACLU National Prison Project 915 15th St. NW, 7th Floor

15

District of Nevada – Reno 400 S. Virginia Street

Washington, DC 20005

16 Reno, NV 89501

17

18

Michon Martin Deputy Attorney General

19

Nevada Attorney General ATTN: RIKER V. GIBBONS, 3:08-cv-00115-

20

LRH-VPC 100 North Carson Street

21 Carson City, NV 89701-4717

22 5.

Money Issues

23 This lawsuit does not involve money damages, so whether or not this case settles or goes to trial, 24 no class member will obtain money from the Defendants.

25

The proposed settlement provides that Defendants shall pay Plaintiffs’ Counsel a one-time lump sum of $325,000 to cover their fees and costs for the last three years. Any fees and costs incurred

26

by Plaintiffs’ Counsel during the monitoring period of this settlement agreement shall be covered solely by Plaintiffs’ Counsel.

27

28 6. Effect on Pending Lawsuits Regarding Medical Care at ESP

7

1 The Proposed Settlement Agreement will not preclude individual damages claims by ESP
2 prisoners.

3 The Proposed Settlement Agreement will not preclude equitable claims for injunctive or declaratory relief tailored to the specific circumstances of the individual prisoner that are filed
4 after the dismissal of Riker v. Gibbons lawsuit with prejudice.

5 However, individual equitable claims for injunctive or declaratory relief for medical care issues filed before the Riker v. Gibbons lawsuit is dismissed with prejudice may be affected by the
6 settlement of this case.

7 7. Questions About the Proposed Settlement Agreement
8 If you have any questions about the proposed settlement, you may contact Class Counsel by
9 writing to:

10

Amy Fettig

Staff Counsel

11

ATTN: RIKER V. GIBBONS, 3:08-cv-00115-LRH-VPC

ACLU National Prison Project

12

915 15th St. NW, 7th Floor

Washington, DC 20005

13

14

15

16

17 ORDER
18

19 APPROVED:

20 DThAiTs E__D__thdisay2o8fth__d_a_y__o_f _J_u_ly_,, 22001100.

21

___________________________________

HON. LARRY HICKS

22

UNITED STATES DISTRICT JUDGE

________________________________

23

LARRY R. HICKS

24

UNITED STATES DISTRICT JUDGE

25

26

27

28

8

 
 Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 1 of 24

1 YFettig (pro hac vice pending) 2 argaret Winter (pro hac vice pending)
HE NATIONAL PRISON PROJECT 3 F THE ACLU FOUNDATION, INC. 4 15 15th Street, N.W., Seventh Floor
ashington, D.C. 20005 5 el. (202) 393-4930; fax (202) 393-4931 6 fettig@npp-aclu.org
winter@npp-aclu.org 7
8 ee Rowland CLU of Nevada
9 V BarNo. 10209 10 1280 Terminal Way, Suite 46
eno, NV 89502 11 el. (775) 786-1033; fax (775) 786-0805 12 owland@ac1unv.org

13 lIen Lichtenstein 14 eneral Counsel, ACLU of Nevada
VBarNo.3992 15 315 Russell Road, No. 222 16 as Vegas, Nevada 89120
el. (702) 433-2666; fax (702) 433-9591 17 lichtensteinlaw@aol.com
18 tephen F. Hanlon (pro hac vice pending)
19 OLLAND & KNIGHT LLP 20 099 Pennsylvania Avenue, N.W.
ashington, D.C. 20006 21 el. (202) 955-3000; fax (202) 955-5564
22

23 Counsel for Plaintiffs 24

25

26

27

:

28

1
..

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 2 of 24

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF NEVADA

3

4 AVID RIKER, ROGER LIBBY, TERRENCE BROTHERS, EFFREY HOSMER, MARK WHITTINGTON
5 n their own behalf and on behalf of 6 hose similarly situated,

7

8

Plaintiffs,

9

10

11 AMES GIBBONS, Governor of Nevada; ROSS MILLER, 12 ecretary of State of Nevada; CATHERINE CORTEZ MASTO,
ttorney General of Nevada; HOWARD SKOLNIK, Director, 13 evada Department of Corrections; ROBERT BANNISTER, 14 edical Director, Nevada Department of Corrections; and
. K. MCDANIEL, Warden, Ely State Prison. 15

16

Defendants.

17

) ) ) ) ) 3:08-CV-115-LRH-VPC ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

18

AMENDED CLASS ACTION COMPLAINT

FOR DECLARATORY AND INJUNCTIVE RELIEF

19

20

INTRODUCTION

21 22 1.

The Plaintiffs are prisoners confined in Ely State Prison (ESP), a maximum security prison

23 .n Ely, Nevada, housing 1,000 men, including death row prisoners. Plaintiffs bring this class action 24
omplaint on their own behalf and on behalf of those similarly situated, seeking relief from 25
26 eprivations ofmedical care at ESP. These deprivations are so extreme that they subject all the men
27 onfined there to constant significant risk ofserious injury, medical harm, and premature death, and 28

2

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 3 of 24

1 0 the needless infliction of great physical pain and suffering. 2
Defendants' actions, detailed herein, deny basic human needs, inflict unnecessary and 3 4 anton pain and suffering, and put Plaintiffs and the class at substantial risk of physical injury,

5 'llness, and premature death, all in violation of Plaintiffs' rights under the Eighth and Fourteenth
6 endments to the United States Constitution. Plaintiffs seek injunctive and declaratory relief to
7
8 emedy these ongoing violation of rights for themselves as well as for a class of those similarly

9

10 JURISDICTION AND VENUE
11

12

This action arises under 42 U.S.C. § 1983 to redress the deprivation under color of state law

13 f rights, privileges and immunities secured by the Constitution of the United States. The rights
14 ought to be redressed are guaranteed by the Eighth and Fourteenth Amendments to the United States
15
16 onstitution. The Court has federal question jurisdiction over this controversy under 28 U.S.C. §§

17

18 Venue is proper in the District of Nevada under 28 U.S.C. § 1391. The Plaintiffs are
19
20 "ncarcerated there, the acts complained of occurred there, and the Defendants work there.

21

PARTIES

22 laintiffs
23

24

Plaintiff David Riker is a prisoner in the custody of the Nevada Department of Corrections

25 ho is currently incarcerated in Ely State Prison. 26
PlaintiffRoger Libby is a prisoner in the custody ofthe Nevada Department of Corrections 27 28 ho is currently incarcerated in Ely State Prison.

3

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 4 of 24
Plaintiff Terrence Brothers is a prisoner in the custody of the Nevada Department of orrections who is currently incarcerated in Ely State Prison.
Plaintiff Jeffrey Hosmer is a prisoner in the custody of the Nevada Department of orrections who is currently incarcerated in Ely State Prison.
Plaintiff Mark Whittington is a prisoner in the custody of the Nevada Department of orrections who is currently incarcerated in Ely State Prison.
emiannual reports from the State Health Officer on correctional facilities' compliance with the edical services standards established under Nevada statute. Defendant Gibbons is sued in his
ttomey General, Cortez Masto is a member of the Board of State Prison Commissioners. efendant Cortez Masto is sued in her official capacity. 13. Defendant Howard Skolnik is the Director of the Nevada Department of Corrections
4

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 5 of 24

1 DOC). As Director, Skolnik is responsible for NDOC's daily functioning and administration.
2 nder Nevada law, the Director ofNDOC is also responsible for establishing standards for medical
3
4 ervices in prisons with the approval ofthe Board. Defendant Skolnik is sued in his official capacity.

5

Defendant Robert Bannister, M.D. is the Medical Director for NDOC. As Medical Director,

6 annister is responsible for the administration and provision ofmedical care services to individuals
7

8 'n NDOC's custody. Dr. Bannister's duties include ensuring the quality and adequacy of medical

9 are services provided to prisoners at ESP. He is sued in his official capacity.

10 15.
11

Defendant E. K. McDaniel is the Warden ofESP . As Warden, McDaniel is responsible for

12 he daily functioning and administration of ESP, including the safe, secure and humane treatment

13 f all prisoners incarcerated there. He is sued in his official capacity.

14 FACTUAL ALLEGATIONS
15

16

Defendants Fail to Treat Prisoners' Serious Medical Needs Causing Significant

Injury and Unnecessary and Wanton Infliction of Pain.

17

18 16. ESP is a maximum security prison in Ely, Nevada designed to house over 1,000 men,

t· .

19 .ncluding death row.

20 17.
21

ESP lacks the most basic elements of an adequate prison health care system, including: a

22 ystem of ready access to adequate medical care; a medical staff competent to examine prisoners

23 nd diagnose illnesses; a system of adequate, accurate, and up-to-date medical record-keeping; a
24 rison health care system able to treat medical problems or to refer prisoners to others who can,
25
26 .ncluding reasonably speedy referrals and access to other physicians within the prison, or to

27
28

5

,.

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 6 of 24

1 hysicians or facilities outside the prison; and an adequate system for responding to emergencies,
2 .neluding adequate facilities and staff to handle emergencies within the prison.
3
4 18. Every man incarcerated at ESP is subject to the following policies and practices which

5 ubject all of them to a significant risk of injury and unnecessary and wanton infliction of pain:

6

•

Defendants' policy and practice of refusing to provide necessary medical care for

7

8

serious medical needs, including injuries that a reasonable doctor or patient would

9

find important and worthy of comment or treatment; medical conditions that

10 significantly affect prisoners' daily activities; and medical conditions involving
11

12

chronic or substantial pain;

13

•

Defendants' policy and practice of failing to maintain an adequate system to

14 provide prescription medication refills and to ensure continuity of treatment;
15

16

•

Defendants' policy and practice of failing to make timely referrals for specialty

17

care;

18

•

Defendants' policy and practice of failing to keep professionally adequate,

19

20

accurate and up-to-date medical records;

21

•

Defendants' policy and practice of failing to monitor prisoners with chronic

22 conditions adequately;
23

24

Defendants' policy and practice of refusing to treat chronic pain; and

25

•

Defendants' failure to ensure adequate coverage by a qualified physician at ESP.

26
19. 27

This pervasive pattern ofgrossly inadequate medical care and the lack ofbasic elements

28 f an adequate medical care system creates a substantial risk of serious medical harm for every

6

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 7 of 24

1 risoner incarcerated at ESP, and in fact causes actual harm to them. All prisoners at ESP are
2
ubject to the same medical system, the same practices and policies, and the same systematic 3 4 enia1 of care.

5

The grossly inadequate medical care at ESP deprives the Plaintiffs and all prisoners at

6 SP of the minimal civilized measure of life's necessities.
7

8

Defendants Are Aware of and Have Deliberately Failed to Take Adequate Action to

End Medical Abuse at Ely State Prison.

9

10

In the spring of2006 the Legislative Commission's Subcommittee to Study Sentencing

11 nd Pardons, Parole and Probation heard testimony from a number of Nevada citizens regarding 12
ossly inadequate medical care for seriously ill prisoners, in particular at ESP. As a result of 13 14 his hearing, on October 6,2006, the Subcommittee sent a formal request to the Governor's

15 ffice to have the Executive Branch carry out an evaluation of the adequacy ofinmate access to

16 edical care in Nevada.
17

18

The Governor's Office took no action on the Legislature's request.

19

The Board of State Prison Commissioners, whose membership is comprised of

20 efendants Gibbons, Miller and Cortez Masto, has either failed to require semiannual reporting
21

22 n the provision of medical services in state correctional facilities or failed to review and take

23 ction on such reports. The Board's dereliction of duty in this matter has directly contributed to

24 e current state of medical abuse at ESP.
25

26

In May 2007, the American Civil Liberties Union (ACLU) informed Defendant Skolnik

27 fthe grave medical situation at ESP and the need for immediate intervention.
28

7

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 8 of 24

The ACLU retained a qualified medical expert, Dr. William K. Noel of Boise, Idaho, to
2
eview prisoner medical records at ESP. Dr. Noel reviewed the medical records of the thirty-five 3 4 SP prisoners that Defendant Skolnik made available for his review.

5

Dr. Noel prepared a report ("the Noel Report"), which was promptly provided to

6 efendant Skolnik and Defendant Bannister, detailing his findings in particular cases and a
7

8 ummary of his conclusions as to the status of the health care being provided to prisoners at Ely.

9

The Noel Report found overwhelming evidence that the grossest possible systemic

10 edical abuses at ESP are occurring and have been occurring there for years. Dr. Noel's review
11

12 fthe records found that not only are prisoners at ESP in imminent danger of death or grave

13 "rreparable medical injury, but that they are being callously and wantonly subjected to needless 14
hysical agony inflicted by grossly improper medical treatment. Moreover, the medical records 15 16 hemselves were so poorly and unprofessionally maintained that he found the charting practices
17 lone constitute a danger to prisoners at ESP. The Noel Report also found that at least one man 18
as already died an unnecessary, slow and agonizing death and that in all likelihood there will be 19 20 ore such deaths and unnecessary suffering if immediate systemic changes are not made in the
21 rovision of health care at ESP.
22
Among the cases Dr. Noel reviewed is that of Patrick Cavanaugh, who was an insulin 23 24 ependent diabetic. He lived in the ESP infirmary for at least two years before his agonizing
25 eath on April 10, 2006. 26
Mr. Cavanaugh's cause of death was complications of Diabetes Mellitus, peripheral 27
28

8

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 9 of 24
I gangrene of both lower extremities, hypertension, and congestive heart failure - all untreated. In
2
the best of circumstances (hospitalization, quick antibiotics, and early detection) gangrene has a 3 4 30% mortality rate, but untreated, it is essentially 100% fatal. Mr. Cavanaugh received almost no
eatment for his illnesses, so his slow, painful death in the ESP infirmary was virtually assured. Given the profound and unmistakable smell of putrefying flesh, there can be no question that
30. Although Mr. Cavanaugh was an insulin-dependent diabetic, there is an order in his chart
There is no indication that consideration was ever given to surgically removing the
The records suggest that Mr. Cavanaugh "would not let" people come into his cell and 21 that he started refusing all medications except for aspirin. Even though progress notes in his
22
chart detail increasing paranoia and probable dementia, and even though gangrene is known to 23 24 derange the mind, there was no order to force life-sustaining medications. 25 33. Although a signed and notarized full, non-limited Power of Attorney Authorization
26
giving power to a guardian is present in his chart, there is no indication that Defendant McDaniel 127 !28 or any other prison official ever contacted Mr. Cavanaugh's guardian to advise her of Mr.
9

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 10 of 24
10

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 11 of 24
40. Dr. Noel further reviewed Michael Mulder's case with Defendant Bannister and met 11

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 12 of 24

1 reatment. The medical term for this disabling process is contracture. A simple brace could have

2 revented the contracture that has already occurred. Without intervention Mr. Mulder's arm may
3 ontract until it rips itself from its own socket and his hand could bend in upon itself until the
4
5 rist breaks.

6

Another case reviewed in the Noel Report is that of Robert Ybarra. Mr. Ybarra suffers

7 om deep vein thrombosis (DVT) and chronic, non-healing venous stasis ulcers on both lower
8

9 egs and ankles. DVT is extremely painful and Ybarra suffers severe and chronic pain that is not

10 reated. Mr. Ybarra's chronic leg ulcers could be easily cured, but instead, Defendants have
11 llowed his open, draining, painful wounds to remain untreated for years. Without adequate
12
13 reatment, he will loose his feet and legs.

14

Dr. Noel emphasized in his report that the ESP records "show a system that is so

15 roken and dysfunctional that, in my opinion, every one of the prisoners at Ely State Prison who
16

17 as serious medical needs, or who may develop serious medical needs, is at enormous risk."

18

October 8-9,2007, Dr. Noel met with the Medical Director of the Nevada Department of

19 orrections, Defendant Dr. Robert Bannister. Dr. Noel discussed his findings with Defendant
20
21 annister who agreed to implement most of Dr. Noel's treatment recommendations for the

22 specially urgent cases, and further stated that he was planning follow-up care for several of

23 ose prisoners.
24

25

Defendant Bannister unreasonably failed to implement most of these urgent treatment

26 ecommendations, despite the obvious risks to the prisoners concerned. Defendant Skolnik was
27 Iso made aware of these urgent treatment needs but failed to require meaningful corrective
28

12

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 13 of 24

1

2

The gross medical abuse at ESP is further exacerbated because Defendant McDaniel, the

3 arden at ESP, arbitrarily denies, delays and intentionally interferes with the medical decisions
4

5 f ESP medical staff.

6

On December 6, 2007, Defendants Gibbons, Miller, Cortez Masto and Skolnik received

7 opies of the Noel Report.
8

9

In response to the findings of the Noel Report, Defendants sent some of the seriously

10 '11 prisoners at ESP to High Desert Correctional Center ("High Desert") and allegedly hired a

11 art-time local doctor to work at ESP.
12

13

Recent reports from prisoners transferred to High Desert indicate that the prisoners are

14 till not receiving adequate medical care at that facility.
15 Recent reports from prisoners remaining at ESP reveal that grossly inadequate medical
16
17 are continues unabated at ESP and many medically fragile prisoners remain at the facility

18 ithout access to necessary medical services.

19 All Defendants are aware of the systemic deficiencies in the provision of medical services
20
21 t ESP, have disregarded the excessive risks to prisoner health and safety caused by those

22 eficiencies, and have deliberately failed to take reasonable and timely steps to prevent the likely

23
.sk of harm caused by those deficient medical services.
24

25

Exhaustion of Administrative Remedies.

26

Plaintiffs have exhausted such administrative remedies as are available to them.

27 CLASS ACTION ALLEGATIONS
28

13

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 14 of 24 Plaintiffs bring this action on behalfofthemselves and all others similarly situated, pursuant Plaintiffs seek to represent a class consisting of "all prisoners who are now or will in the
iolations of their constitutional rights as described in this Complaint. Plaintiffs represent a class fpersons seeking declaratory and injunctive relief to eliminate or remedy Defendants' policies, ractices, acts, and omissions depriving them of those rights. he Named Plaintiffs
14

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 15 of 24

1

Because Mr. Riker is not receiving adequate care for his RA, he suffers chronic and

2 evere protopathic nerve pain. ESP medical staff have told him that treating chronic pain is
3 gainst the policy of the prison. Such a policy or practice contradicts medical ethics and
4
5 ommunity standards of care in the State of Nevada. Medical staff do not provide him with pain

6 edication. Instead, he was told he could buy ibuprofen from the prison store, a medicine which

7 .s completely inadequate for treating his chronic and severe nerve pain.
8

9

Mr. Riker takes or has taken several medications that require careful monitoring for

10 ossible side effects and complications, including Plaquinel and Methotrexate, but ESP medical
11 taff fail to perform the regular testing required to ensure that Mr. Riker is not harmed by his
12
13 edications.

14

Mr. Riker's medical records also demonstrate that he is prescribed medication that is

15 lternately stopped for no reason or the refills are not given on time so he is frequently forced to
16

17 o without them. For example, he has been prescribed Propanolol for both migraines and blood

18 ressure control and this medication is often discontinued suddenly. Propanolol is a beta blocker

19 d if stopped abruptly can cause a heart attack.
20

21

Mr. Riker is not receiving adequate treatment for his serious medical conditions at ESP

22 d he is at great risk of suffering and has suffered serious medical harm.
23 Plaintiff Roger Libby has a right inguinal hernia. Mr. Libby suffers a great deal of pain
24
25 d discomfort due to his hernia. The hernia is causing him problems with digestion and

26 ifficulty with bowel movements. Over time his condition has gotten worse and the hernia is 27
ow the size of a softball. The proper treatment for this condition is surgery if the patient can
28

15

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 16 of 24

olerate it.

2

Mr. Libby repeatedly requested surgery for his hernia, but Defendants have denied this

3 edically necessary treatment. His medical records show no medical reason why Mr. Libby
4

5 hould not have a hernia operation.

6

The only treatment Defendants have provided for the hernia is a truss, which is not good

7

edical practice. It weakens the inguinal ring and musculature and over time makes the hernia

8

j.
I

I

9

I I·

10

Mr. Libby is not receiving adequate treatment for his serious medical condition at ESP

11 d he is at great risk of suffering and has suffered serious medical harm.
12

13

Plaintiff Terrence Brothers suffered from untreated open sores on his scalp for

14 pproximately ten years at ESP. After years of requesting treatment without success, Mr. 15
rothers finally received a prescription shampoo that helped his condition in 2006. But due to 16 17 he years of inadequate treatment, his scalp is permanently scarred, discolored and a large keloid

18 ormed on the back of his head. This keloid often swells, bleeds and is very painful. Despite

19 epeated requests, Defendants still refuse to treat this condition.
20

21

Mr. Brothers is not receiving adequate treatment for his serious medical condition at ESP

22 nd he is at great risk of suffering and has suffered serious medical harm.

23 Plaintiff Jeffrey Hosmer suffers from chronic severe back and neck pain and numbness
24

25 n his left side. Despite repeated requests for care, Mr. Hosmer's condition is not being

26 dequately treated. He frequently waits weeks or months to be seen by a doctor even though he
27
's housed in ESP's infirmary.
28

16

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 17 of 24

1

Mr. Hosmer's pain medication refills are often delayed for days or weeks at a time

2 ausing him to suffer excruciating pain.
3 Mr. Hosmer is bi-polar and his medications for that condition are frequently interrupted
4
5 r discontinued thereby worsening his condition.

6

Mr. Hosmer is not receiving adequate treatment for his serious medical conditions at ESP

7 nd he is at great risk of suffering and has suffered serious medical harm.
8

9

Plaintiff Mark Whittington requires thyroid replacement therapy and he has suffered

10 om chest and stomach pain and insomnia for months without adequate treatment despite

11 epeated requests for care.
12

13

While incarcerated at ESP, Mr. Whittington has experienced continual problems with

14 iscontinued medications, dosages of prescribed medications running out, and on at least one 15
ccasion he was given the wrong medication by medical staff and suffered serious physical and 16 17 ental side effects as a result.

18

Mr. Whittington is not receiving adequate treatment for his serious medical conditions at

19 SP and he is at great risk of suffering and has suffered serious medical harm.
20

21

The requirements of Rule 23(a) are met with regard to the putative class. Specifically:

22

a. There are currently over 1000 prisoners confined in ESP. The members of the

23 class are too numerous, and the membership ofthe class too fluid, to permit
24

25

joinder of all members.

26

b. Common questions oflaw and fact exist as to all class members. These common

27 questions include, but are not limited to, whether the systemically inadequate
28

17

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 18 of 24

1

medical care provided to ESP prisoners violates their rights under the Eighth and

2

Fourteenth Amendments to the United States Constitution.

3 c. The claims of the named plaintiffs are typical ofthose of the ESP Class as a
4

5

whole. They do not have access to minimally adequate medical care at ESP and

6

are subject to such grossly callous denial of basic medical care that every class

7 member is either suffering from, or at great risk of suffering, agonizing pain,
8

9

injury and potentially premature death.

10

d. Plaintiffs will fairly and adequately represent the interests of the class. The

11 interests of the Plaintiffs are consistent with those of the class, and they are
12

13

represented by counsel who are experienced in class action, civil rights, and

14

prison conditions litigation.

15 The further requirements of Rule 23(b)(2) are met in this cause in that at all times
16

17 efendants have acted and refused to act on grounds generally applicable to the class, thereby

18 aking appropriate final injunctive and declaratory relief with respect to the class as a whole.

19 CLAIM FOR RELIEF
20

21

Eighth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.c. § 1983

22

Defendants' policies, practices, acts, and omissions place Plaintiffs and the ESP class at

23 nreasonab1e, continuing and foreseeable risk of serious medical problems.
24

25

Defendants have acted with deliberate indifference to Plaintiffs' and the ESP class's serious

26 edical needs by implementing, sanctioning, approving, ratifying, or failing to remedy policies,
27 ractices, acts and omissions that deny, delay or intentionally interfere with medical treatment.
28

18

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 19 of 24

1

Defendants' deliberate indifference to Plaintiffs' and the ESP class's serious medical needs

2 uts Plaintiffs and the ESP class at substantial risk ofinjury, causes avoidable pain, mental suffering,
3 nd deterioration of their health, and in some cases it has resulted or may result in premature death.
4
5 efendants' conduct constitutes unnecessary and wanton infliction ofpain on the Plaintiffs and the

6
7 Defendants' policies, practices, acts, and omissions evidence and constitute deliberate
8 9 'ndifference to the serious medical needs of prisoners and violate the Cruel and Unusual

10 unishments Clause ofthe Eighth Amendment, made applicable to the States through the Fourteenth

11 mendment to the Untied States Constitution.
12

13

As a proximate result ofDefendants' unconstitutional policies, practices, acts and omissions,

14 laintiffs and the ESP class have suffered and will continue to suffer immediate and irreparable
15 'njury, including physical, psychological and emotional injury and risk ofdeath. Plaintiffs have no
16
17 lain, adequate or complete remedy at law to address the wrongs described herein. The injunctive

18 elief sought by Plaintiffs is necessary to prevent continued and further injury.

19 PRAYER FOR RELIEF
20

21

WHEREFORE, Plaintiffs respectfully request that the Court:

22

1. Issue an order certifying this action to proceed as a class action pursuant to Rules

23 3(a) and (b)(2) of the Federal Rules of Civil Procedure;
24

25

2.

Issue a judgment declaring that the actions of Defendants described herein are

26 nlawful and violate Plaintiffs' rights under the Constitution and laws of the United States;

27

3.

Enjoin Defendants, their subordinates, agents, employees, and all others acting in

28

19

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 20 of 24

oncert with them, from subjecting Plaintiffs to the conditions set forth in this Complaint;

2

4. Grant Plaintiffs theirreasonable attomeyfees and costs pursuant to 42 U.S.C. § 1988

3 d other applicable law; and
4

5

5.

Grant such other relief as the Court considers just and proper.

6

r-f1'/

7 ate: APrill!e 2008

8

BY:

9

10

c vice pending) I

11

Margaret Winte pro hac vice pending)

THE NATIONAL PRISON PROJECT OF

12

THE ACLU FOUNDATION, INC.

13

915 15th Street, N.W., Seventh Floor

Washington, D.C. 20005

14

Tel. (202) 393-4930; fax (202) 393-4931

15

afettig@npp-ac1u.org

mwinter@npp-aclu.org

16

17

18

19

i.

ACLU of Nevada

20

NV Bar No.1 0209

21

1280 Terminal Way, Suite 46

Reno, NV 89502

22

Tel (775) 786-1033; fax (775) 786-0805

23

rowland@aclunv.org

24

Allen Lichtenstein

25

General Counsel, ACLU of Nevada

NV Bar No. 3992

26

27 I Attorneys Winter, Fettig and Hanlon will comply with LR IA 10-2 within 45 days of the
28 riginal :filing ofthe Complaint in this matter.

20

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 21 of 24

1

3315 Russell Road, No. 222

Las Vegas, Nevada 89120

2

Tel. (702) 433-2666; fax (702) 433-9591

3

alichtensteinlaw@aol.com

4

Stephen F. Hanlon (pro hac vice pending)

5

HOLLAND & KNIGHT LLP

2099 Pennsylvania Avenue, N.W.

6

Washington, D.C. 20006

7

Tel. (202) 955-3000; fax (202) 955-5564

8

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Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 22 of 24

1 Amy Fettig (pro hac vice pending) 2 Margaret Winter (pro hac vice pending)
THE NATIONAL PRISON PROJECT 3 OF THE ACLU FOUNDATION, INC. 4 915 15th Street, N.W., Seventh Floor
Washington, D.C. 20005 5 Tel. (202) 393-4930; fax (202) 393-4931 6 afettig@npp-aclu.org
mwinter@npp-aclu.org 7
8 Lee Rowland ACLU of Nevada
9 NY Bar No. 10209 10 1280 Terminal Way, Suite 46
Reno, NV 89502 11 Tel (775) 786-1033; fax (775) 786-0805 12 rowland@aclunv.org

13 Allen Lichtenstein 14 General Counsel, ACLU of Nevada
NV Bar No. 3992 15 3315 Russell Road, No. 222 16 Las Vegas, Nevada 89120
Tel (702) 433-2666; fax (702) 433-9591 17 alichtensteinlaw@aol.com
18 Stephen F. Hanlon (pro hac vice pending)
19 HOLLAND & KNIGHT LLP 20 2099 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 21 Tel. (202) 955-3000; fax (202) 955-5564
22 Counsel for Plaintiffs
23

24

25

26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

27

28 DAVID RIKER, ROGER LIBBY, TERRENCE BROTHERS, )

JEFFREY HOSMER, MARK WHITTINGTON

)

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 23 of 24

1

on their own behalf and on behalf of those

)

2 similarly situated,

)

3 Plaintiffs,
4

) Docket #: 3:08-CV-115-LRH-VPC ) ) CERTIFICATE OF SERVICE

5

)

v.

)

6

)

7

)

JAMES GIBBONS, Governor of Nevada; ROSS MILLER, )

8 Secretary of State of Nevada; CATHERINE CORTEZ

)

9 MASTO, Attorney General of Nevada;

)

HOWARD SKOLNIK, Director, Nevada Department

)

10 of Corrections; ROBERT BANNISTER, Medical Director, )

11 Nevada Department of Corrections; and

)

E. K. MCDANIEL, Warden, Ely State Prison,

)

12

)

13

Defendants.

)

)

14

15 Pursuant to Fed. Rule of Civ. Proc. 5(b), I hereby certify that on this 16th Day of April,
16
17 2008, I served a copy of the foregoing document, Plaintiffs' Amended Class Action

18 Complaint, by electronic submission to the parties on electronic file in this case as follows:
19 Janet Traut
20 Senior Deputy Attorney General 21 Bureau of Public Affairs
Public Safety Division 22 100 No. Carson Street 23 Carson City, NV 89701-4717

24

25

26

27

I.e owland

28

ACLU of Nevada

NV Bar No. 10209

Case 3:08-cv-00115-LRH-VPC Document 15 Filed 04/16/08 Page 24 of 24

1280 Terminal Way, Suite 46

Reno, NV 89502

1

Tel (775) 786-1033; fax (775) 786-0805

rowland@aclunv.org

2

3

4

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3

 
 REPORT PREPARED FOR THE
NATIONAL PRISON PROJECT OF THE ACLU: Review of Medical Records from Ely State Prison
Dr. William Noel
INTRODUCTION
At the request ofthe National Prison Project of the American Civil Liberties, I reviewed the medical records of thirty-five prisoners from Ely State Prison (ESP) in Ely, Nevada. One of these men died in custody at Ely in April 2006; the other thirty-four are currently incarcerated there. It is my understanding that the Nevada Department of Corrections (NDOC) represents that the records I reviewed are the complete working file and archived medical file for each pnsoner.
On October 8-9, 2007, at the request of the Nevada Department of Corrections, I traveled to the prison to discuss my findings with the Department's Medical Director, Dr. Robert Bannister. During my visit I was able to speak with some ofthe men whose cases I identified in the record as especially urgent. These visits were unfortunately not confidential. NDOC denied my request to interview the patients privately and my patient visits were done in the presence of Dr. Bannister and several other ESP staff. At the prison I was also able to review the most current medical records for the men I spoke with during my visit. These files were generally a month behind in progress notes and medication sheets. During my visit I discussed my findings with Dr. Bannister, in particular those concerning the most urgent cases I had reviewed.
My credentials and qualifications to review these files are as follows: I am a Doctor of Osteopathic medicine with thirty five years clinical experience. I received my D.O. degree in 1972 from the University of Health Sciences College of Osteopathic Medicine and Surgery in Des Moines, Iowa. I am board certified in Family Practice by the American Osteopathic Board of Family Practice (ABOFP) and I maintain my medical license in the State of Nevada (#377). The vast majority of my practice has been in Primary Care and Emergency medicine in rural areas. I practiced in Ely, Nevada, the community where ESP is located, from 1991 to 1994. Thus, in reviewing these files, I was applying the community standard of care in the community where the prison is located. Since my retirement from active practice in 1996, I have accumulated at least 50 hours every year of class I-A and 2-A Continuing Medical Education hours and maintain my Board Certification with ABOFP. State and Federal Courts in Colorado, Nevada and Idaho have qualified me to testify as an expert witness
FINDINGS
Based on my review ofthe medical records and my interviews at Ely State Prison, it is my opinion that the medical care provided at Ely State Prison amounts to the grossest possible medical malpractice, and the most shocking and callous disregard for human life and human
1

suffering, that I have ever encountered in the medical profession in my thirty-five years of practice.
I believe it is highly unlikely that these thirty-five cases are aberrations. These cases show a system that is so broken and dysfunctional that, in my opinion, everyone of the prisoners at Ely State Prison who has serious medical needs, or who may develop serious medical needs, is at enormous risk.
I realize that many ofthe prisoners at Ely State Prison have committed horrible crimes. Indeed, several ofthem are on death row. But as a doctor I took an oath that all physicians are sworn to follow in the practice of medicine, "1 will make no judgments as to character or morality, but 1 will treat the disease." I honor that oath and so must every doctor in this country.
I have provided below a detailed summary of my findings with respect to the individual cases I reviewed.
I. Grossly Callous Denial of Basic Medical Care Resulting in Agonizing Pain, Injury and High Risk of Premature Death
Patrick Cavanaugh, was an insulin dependent diabetic, who lived in the Ely State Prison infirmary for at least two years before his agonizing death on April 10,2006. Immediately after his death he was transported to a funeral home. There is no record of an autopsy or a mortality review in his file.
The cause of death was complications of Diabetes Mellitus, peripheral gangrene of both lower extremities, hypertension, and congestive heart failure - all untreated. In the best of circumstances (hospitalization, quick antibiotics, and early detection) gangrene has a 30% mortality rate, but untreated, it is essentially 100% fatal. Mr. Cavanaugh received almost no treatment for his illnesses, so his slow, painful death in the ESP infirmary was virtually assured. Given the profound and unmistakable smell of putrefying flesh, there can be no question that every medical provider and correctional officer in that infirmary was acutely aware of Patrick Cavanaugh's condition.
Although Mr. Cavanaugh was an insulin-dependent diabetic, there is an order in his chart stopping all his medications, including his insulin on August 28, 2003. There is no indication as to why this was done. The order is unsigned. Insulin was ordered sporadically thereafter but was never given - for 3 years! During this entire period Mr. Cavanaugh's blood sugars were dangerously high, running from 300 to 400. In fact, he developed leg ulcers due to diabetes as early as 2001, indicating that his disease was quite severe and negligently managed for years.
There is no indication anywhere in the record I reviewed that a single consideration was ever given to surgically removing the gangrenous limbs. Yet, this procedure could have saved Mr. Cavanaugh's life. Instead, ESP medical staffliterally left him to rot to death.
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The records suggest that Mr. Cavanaugh "would not let" people corne into his cell. And that he started refusing all medications except for aspirin. Progress notes in his chart detail increasing paranoia and probable dementia. Moreover, gangrene is known to derange the mind. Given Mr. Cavanaugh's demented state, an order was obtained to use force if necessary to move Mr. Cavanaugh from cell to cell once a week so that excrement, trash, food and other filth could be cleaned up. In contrast, there is no order to force life-sustaining medications. Although a typed "chronological for forced med panel" is present in the chart, there is no response from the panel and no evidence that such an order was ever sought. On April 19, 2002 his medications were being crushed and put in his food for a brief period of time. Why this practice was discontinued is unclear.
Curiously, although a signed and notarized full, non-limited Power of Attorney Authorization giving power to Elizabeth Ann Dougherty is present in his chart, there is no indication that Mr. Cavanaugh's guardian was ever contacted regarding his medical care and the need to treat his various grave medical conditions, despite his dementia. Apparently prison officials decided not to force life-sustaining medications on Mr. Cavanaugh, even though he clearly was not able to make medical decisions himself, and they did so without consulting his legal guardian. This decision amounted to a death sentence for Patrick Cavanaugh, and one of prolonged agony and unnecessary suffering.
Even during his last days before death, where an order is given for 5 mgs. of morphine sulfate every 4 to 5 hours to alleviate his terrible pain and suffering, there is no evidence that this palliative order was ever carried out. Instead, it was ignored. And Patrick Cavanaugh was left to suffer.
In sharp contrast to the other 34 records I reviewed, this chart is neatly written and organized. But much ofthe chart is missing. There is essentially little to no record of the 1980's or 1990's, even though Mr. Cavanaugh entered the Nevada Department of Corrections in January of 1985. Moreover, the nurse's notes have large temporal gaps that are impossible to explain in the normal course of nurse note taking. For example, the notes go from August 7, 2003 to December 25, 2002 with nothing written in between. And notes on the same sheet go from December 11, 2002 to August 7, 2001, then back to August 6, 1996. Such notes simply do not make any sense. The Physician Progress Notes are also very sparse, starting on March 2,2002 and ending on the date of death. And the medication sheets only start at February 24,2002 and end at date of death. There are also no laboratory reports in the entire chart. This is very difficult to explain for a man with Mr. Cavanaugh's dangerous health problems. In fact, the entirety of care reflected in these records makes little medical sense. The "medical" care given to Patrick Cavanaugh at ESP amounts to the grossest possible medical malpractice I have ever encountered and deliberate acts of unconscionable cruelty.
The provider progress notes prefer to label the nature ofMr. Cavanaugh's illness as "cellulitus" but it is clear that he suffered from severe, untreated gangrene. Calling Mr. Cavanaugh's disease "cellulitus" is akin to calling "9/11" a "high rise fire." By stopping his medications, it was perfectly clear to all concerned - except Patrick Cavanaugh - that he would die, and die a most
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miserable death. In my 35 years in the medical profession I have never heard of such behavior on the part of medical providers. It is almost too horrible to believe.
Mr. Al is an insulin dependent diabetic. Incredibly, like Mr. Cavanaugh, his insulin was stopped for no reason, and apparently without a physician's order. As a result of this egregious treatment, Mr. A went into a ketoacidotic coma on March 20,2006 and was hospitalized in Ely until March 23,2006. It is simply incredible that medical staff at ESP are cutting diabetics off life-sustaining insulin. Any person with medical training should know that this will lead to death.
Unlike Mr. Cavanaugh, Mr. A has been the recipient of forced medications in the past after he refused to take his psychiatric medications. He has been prescribed strong anti-psychotics. Over time his kites become less and less coherent and this may be the result of the drugs he was forced to take.
Mr. A's medical records during the period 2003-2006 are very sparse. After he goes into a coma as a result of having his insulin discontinued, the records become fairly complete, but prior to that time they are strangely inadequate.
Mr. B has severe seizure disorder and must wear a helmet to prevent head injury from seizures. This helmet has actually broken during the violence of his seizures. After his helmet breaks, it frequently takes ESP staff months and months before getting him a new one, regardless of repeated pleas by Mr. B and the dire nature of his attacks.
Despite the severity of his disorder, there is a standing order in his chart to wait until a seizure lasts 30 minutes before giving him 10 mgs. of valium. There is no medically justifiable reason for waiting 30 minutes while this man seizes. Such a practice can lead to irreversible damage to Mr. B or death. When Mr. B has a seizure, medical staff should give him valium at once and it should be intravenously.
Shockingly, this man has tested positive for syphilis three times, but there is no evidence in the medical record that he was ever given a course of penicillin to cure this disease. There is no evidence of any antibiotic being given to Mr. B in all his years in prison. This lack of treatment exposes staffto the disease unnecessarily, especially given Mr. B's seizure disorder. At this time, Mr. B is also showing symptoms of final stage neurosyphilis - seizures, headaches, neck stiffness. This is a slow, progressive destructive infection of the brain that leads to dementia and possible psychotic symptoms such as hallucinations and paranoia.
Mr. B also has a ventral hernia that is untreated and causes him constant pain. Given the torment this man lives in, it is not surprising that he has made multiple suicide attempts.
The names of prisoners who do not wish to have their identities made public have been changed for their protection.
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Follow-up with Mr. B: During my visit to ESP I also spoke with Mr. B. Mr. B presented as somewhat confused and fearful during our interview with him. I noted that tears were streaming down his face while I spoke with him. Of course, because I was not allowed to speak confidentially with patients and NDOC medical staff and guards were always present during my discussions with patients, it was difficult to eliminate patient fears of retaliation and intimidation. In Mr. B's case, it is clear that he needs mental health care that is not reflected in his records.
During our consultation, Mr. B indicated that he had been treated for syphilis in Montana years ago, although I found no evidence ofthis in his medical file. Given that he has subsequently tested positive for the disease on several occasions and that his antibody titers show fluctuations, he must either be given a course oftreatment or ESP must do three months of antibody titers testing to ensure that he does not have active syphilis. Why he has not simply been given a course of penicillin to ensure that the disease is eliminated and not infecting his brain is an example of the grossest medical abuse.
During our meeting I questioned Mr. B regarding his seizures and his answers that he loses bowel and bladder control and can't accurately remember auras before his seizures indicate to me that it is very likely that his seizures are genuine. Dr. Bannister attempted to justify the practice of not treating Mr. B until 30 minutes after the commencement of a seizure by stating that there are questions regarding the authenticity of his seizures. The condition in question is enormously serious and life-threatening. If questions regarding his actual diagnosis exist, a neurologist should be consulted and testing should be done. Grossly negligent medical practices should not be ordered and condoned on the basis of some unconfirmed suspicions of malingering by low level medical staff. The bald-faced assumption that Mr. B is somehow staging his seizures is entirely insufficient to justify the failure to treat him appropriately for a condition that could kill him. Again and again at ESP I see that denial of treatment and a belief that patients are always faking their illnesses is the first and over-riding assumption of medical staff. But staff act on this assumption without any empirical proof and very rarely do anything to establish that their treatment assumptions are correct. This is not smart medicine. This is a deliberate unwillingness to do the job.
David Riker suffers from rheumatoid arthritis (RA), fibromyalgia, and chronic fatigue syndrome. Mr. Riker's conditions were all extensively documented by the California Department of Corrections, including successful treatment regimens. These records were sent to ESP and NDOC's Director of Medical Services by the Federal Defender - twice. Despite this, Mr. Riker does not receive any care for his multiple conditions. He has repeatedly been told that Ely medical does not give pain medications, even though he has well-documented diseases that cause debilitating and chronic pain. Moreover, when an RMF doctor did review his records and conditions in August of2006 and finally prescribed some appropriate medications and ordered xrays, her orders were not followed. Mr. Riker never received x-rays and the order for a dosage increase in his medication was not implemented at ESP. Instead, the new Physician's Assistant at ESP, Max Carter, took him off the medications ordered by the RMF doctor and told him that he does not have rheumatoid arthritis, a conditi.on previously treated and diagnosed by several Rheumatologists in California.
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Mr. Riker's protopathic nerve pain is a living hell and must be treated. It is simply unimaginable that medical staff would tell a patient like Mr. Riker that they will not treat his chronic pain. Yet his medical records show that ESP medical staffhave actually told him that treating chronic pain is against the policy of the prison. Such a policy or practice contradicts medical ethics and all community standards of care I know of in this country. It is certainly contrary to practice in the State of Nevada. I am unaware of any doctor or medical provider in this day and age who would follow such a practice with a chronic care patient like Mr. Riker.
In reviewing Mr. Riker's medical records I also noted:
• Mr. Riker undoubtedly has rheumatoid arthritis. A simple review of the Merck Manual demonstrates that he has 6 of7 criteria for rheumatoid arthritis. And only 4 of the 7 are required for an RA diagnosis.
• He is not being adequately treated for his rheumatoid arthritis. For example, 5 mg prednisone a day is a stalwart and standard treatment for RA - in fact 10 mg a day is fine - but ESP took him off Prednisone due to "serious side effects." Clearly the medical providers at ESP do not understand the treatment of RA. Prednisone is manageable although it has side effects that simply need to be monitored. But monitoring is not done at ESP.
• Mr. Riker must see a rheumatologist periodically but there is no record that he has ever seen one in Nevada.
• While incarcerated in California Mr. Riker received excellent care and his RA was caught early so he hasn't suffered much deformity yet. In contrast, the care in Nevada is sporadic and entirely inadequate.
• Mr. Riker suffers severe depression for which he is prescribed EscalithiLithium. He needs to have quarterly lithium checks done but has not had one since 1997.
• He takes Plaquinel and needs to have thyroid checks, but none are given. • He is prescribed Propanolol for migraines but the medication is frequently stopped for no
reason. This medication is a beta blocker and if stopped abruptly can cause a heart attack. • Mr. Riker is also prescribed Propanolol for his blood pressure, but his refills are frequently not sent on time so he is forced to go without his medications. You cannot stop this medication abruptly because it can cause a heart attack. • Mr. Riker is also on methotrexate and does not get the regular cbc's he needs. • Mr. Riker suffers from Gastric Hyperacidity (Riker self-reports that he takes about 20 Motrin a day that causes his stomach to bum up. Because Ely won't treat chronic pain, prisoners are told to get Motrin from the canteen). Motrin is useless for the type of pain Mr. Riker suffers and he should not be encouraged to take it as a substitute for genuine medical treatment of his condition.
Follow-up with David Riker: During my visit to ESP, Dr. Bannister and I discussed David Riker's case and we met with him briefly to discuss his condition. Mr. Riker indicated that the Remicaide treatment he received in prison in California worked best for his condition. His last dose was in September of 2005 and since that time his condition has gradually worsened in
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elbows, hands, knees, and neck. His fingers were visibly swollen during our consult with him. In contrast to the Remicaide, he stated that the Plaquinel he receives at ESP does not seem to help his pain. He is now receiving Prednisone which is helping a little. And his prescription for Propanolol is not being interrupted as much as in the past. Although his care is somewhat improved from that reflected in the earlier records, he clearly still experiences unnecessary levels of pain.
After our meeting, Dr. Bannister stated that Mr. Riker "probably has rheumatoid arthritis." At the same time he told the PA, Max Carter, who was also in the room, "not that it wasn't a good idea for you to question the diagnosis." Mr. Carter asserted that Mr. Riker had told him that he didn't want Remicaide. I found this statement highly incredible given the numerous instances in the medical record in which Mr. Riker literally begs for Remicaide treatment and attempts to explain the efficacious care he received in California for RA.
ESP has offered no good reason not to treat Mr. Riker's RA with Remicaide. There can be no justification for not trying to alleviate his painful suffering and retard the progress of a terrible disease.
John Snow has severe degenerative hip disease and requires surgery. An orthopedist recommended hip surgery for Mr. Snow years ago but this procedure was denied as "not lifethreatening." Ifhe is not given surgery, Mr. Snow's bones will eventually wear through his acetabulae, which are the large sockets at the base of the hip bones into which the head of the femur fits. In fact, those bones could wear clear through to the pelvis, but it is hard to imagine anyone enduring such agonizing pain that long. Because ofMr. Snow's condition, he is in constant, excruciating pain but he is given NO pain medications. There is no medically justifiable reason for leaving this man to suffer in agony.
Instead of properly treating this man's pain, he is only given Indocin for inflamation and steroids. But Mr. Snow's kidneys are failing and prescribing him Indocin is making them fail faster. This medicine should not be prescribed to Mr. Snow given his kidney issues. In fact, based on my experience, Indocin is almost never used on humans anymore because of its harsh side effects. This medication is mostly used to treat animals, such as race horses.
Mr. Snow also tested positive for heliobacter pylori in 1998, but has never been treated. As a result, he suffers chronic stomach acid problems and is likely infectious to other prisoners and staff.
Follow-up with John Snow: Dr. Bannister described Mr. Snow as a good patient. He has taken him off the Indocin as I suggested and is now starting a pain regimen for him. I noted in Mr. Snow's new records that shortly after the ACLU copied his file, he was started on pain medications beginning August 16, 2007. And Dr. Bannister put him on a nightly narcotic to control the pain of his osteoarthritis. This is a start, but Mr. Snow still needs to be given pain medications to ease his pain throughout the day. There is no reason to make this man suffer
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any hour of the day. And without constant pain management, Mr. Snow experiences excruciating pain throughout the day.
Mr. Snow has no cartilage in his hips, so walking causes his bones to scrape and grate back and forth on each other. Because any movement causes great pain, there was concern that requesting a visit with Mr. Snow would force him to endure agonizing pain just to see me. The ACLU therefore asked Howard Skolnik, Director ofthe Nevada Department of Corrections, to allow Mr. Snow to be escorted in a wheelchair to our meeting rather than forcing him to walk in chains. This request was denied. Clearly prisons have security issues, but the fact that in this case and others, prison officials make absolutely no accommodations for severely disabled prisoners is unacceptable medical practice and no doubt unlawful.
The only way to stop Mr. Snow from suffering on a permanent basis is to give him hip replacement surgery. Dr. Bannister is apparently considering surgery but wants to exhaust pain management through medications first. It is clear, however, that Dr. Bannister is reluctant to agree to surgery - despite the recommendations of an orthopedic surgeon. He mentioned Mr. Snow's age and "lifestyle" as barrier to hip replacement surgery. But Mr. Snow is only 65 years old. And the fact that he is a prisoner should not preclude him from surgery or effective follow-up treatment. Without surgery he will eventually be unable to move at all.
Mr. Snow's medical records also revealed that he was being treated for gout with Allopurinol but this medication was stopped and he is no longer receiving treatment - even though his uric acid is 8.7. This needs to be addressed immediately.
Keven Lisle has deep vein thrombosis in both legs; status post myocardial infarction, angina pectoris, hypertension, anxiety disorder and depression. Many ofthese conditions are potentially life threatening. Yet the records I reviewed indicated that no testing was completed on Mr. Lisle, the documentation by medical staff was extremely poor at best, and he is receiving no appropriate treatment for his multiple health problems - except for aspirin. In addition:
• Mr. Lisle is on clonidine for his blood pressure and the pharmacy keeps running out of it, so they stop his medications abruptly for several days until the pharmacy can get some more. If you stop this medication abruptly your blood pressure skyrockets and a stroke or myocardial infraction can result. Therefore, Mr. Lisle's life is being placed at great risk with the improper administration of this medication.
• Vital signs rarely noted in his records. • Pain levels never noted despite the fact that pain level is now considered the 5th standard
vital sign of patients; for example, the records at Ely clinics list pain levels. Those at ESP never do. • Lisle's kites consistently complain about pain but the responses to those kites always ignore that complaint. Deep vein thrombosis is extremely painful. • The responses to Mr. Lisle's kites are frequently unprofessional, for example, the medical provider will respond to his health concerns by saying "what's your point?"
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• This patient should be on the blood thinner Coumadin and monitored constantly with blood tests to determine his clotting parameters, if not he will probably develop more clotting difficulties and be at great risk of death.
• Mr. Lisle's records show no annual exams. • No Hepatitis C screening is evident in the record despite the patient's elevated liver
enzymes. • Mr. Lisle had a fungal infection that was never addressed. He was consistently
prescribed the same ineffective cream to treat the fungus and it spread over his entire body as a result.
It is frankly amazing that this man is still alive. These records reveal that medical staff are documenting Mr. Lisle's DVT and heart attacks, but they are not treating these conditions. In fact, the treatment Mr. Lisle receives from ESP medical is often worse than no treatment at all.
Follow-up with Kevin Lisle: After reviewing Mr. Lisle's records I urged NDOC to improve his care immediately. As I advised, Dr. Bannister had Mr. Lisle taken off Clonidine and placed on Coumadin. During my visit to ESP I met with Mr. Lisle and he confirmed that he is now taking Coumadin. He also indicated that he has urinated blood recently and this should be checked immediately. Patients on Coumadin need regular INR testing to monitor the thinness of the blood. If left unrnonitored, the medication can lead to serious health problems. Initially the monitoring should be done every week until the medication is stabilized and thereafter it can be done monthly and then every three months. However, no such testing is evident in Mr. Lisle's current records. The blood in his urine may be a result of the Coumadin dosage, indicating that the dosage is too high and should be changed. However, it might also be a kidney stone or a cancerous polyp in his bladder as well. He should be sent to a urologist to find out.
Dr. Bannister indicated that Mr. Lisle is a difficult patient who has "cheeked" his medications in the past - meaning that he pretended to take his medications but did not. For this reason, Dr. Bannister apparently doesn't believe there is any way to tell if Mr. Lisle has genuine pain. As a result, Mr. Lisle's pain is not treated at all. I find this an astounding way to practice medicine. It is clear that the medical care given to Mr. Lisle by ESP has been grossly inadequate. In fact, it has almost killed him. During my interview with Mr. Lisle he stated that he stopped taking some of his medications when he noticed they were making him sicker, but the medical staffjust ignored this fact and refused to change his medications or indeed listen to him at all. Under the circumstances, Mr. Lisle's decision not to take his medications was not an unreasonable response, and it certainly should not be used as an excuse to deny him necessary treatment now. It also must be noted that Mr. Lisle's conditions, such as deep vein thrombosis, are known to cause extreme pain. I therefore find it astonishing that Dr. Bannister would assert that it is impossible to know ifMr. Lisle's pain is real. There is simply no medical excuse for not trying to alleviate Mr. Lisle's suffering.
Greg Leonard suffers from HIV, diabetes mellitus, hypertension, two spinal injuries and a botched back surgery resulting in chronic, debilitating pain, and kidney disease. In addition, even though a RMF doctor ordered a consultation with a nephrologist due to the alarmingly high protein in his urine, that consultation never occurred and he was sent back to ESP without care.
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Mr. Leonard's records also indicate:
• He is an insulin-dependent diabetic but shockingly he's been given no regular sugar checks since 2003. He should be given daily sugar tests; the fact that he is not is an example of gross malpractice.
• The fact that Mr. Leonard hasn't had an incident with his blood sugar even though he's not being tested regularly likely means that he's being very under-treated for the diabetes.
• Mr. Leonard only receives his HIV medications sporadically which potentially undermines their efficacy in treating the virus and puts him at great risk for resistance to entire classes of HIV medications, thereby dangerously limiting treatment options.
• Mr. Leonard should have his high blood pressure tightly controlled, but his prescriptions are rarely refilled in a timely manner and he consistently runs out of his medications despite his vigilant efforts to obtain refills without a lapse.
• This patient suffers severe and chronic pain with no treatment. • Mr. Leonard finally saw a nephrologist on 6/1/07, and that doctor requested that he be
taken off all ibuprofen-type medications because they are destroying his kidneys. The ibuprofen-type medications are being prescribed to Mr. Leonard for pain instead of medications that could actually treat his extreme pain. • A lab report from June 15,2007 shows a large quantity of protein in urine (indicated severe kidney disease). • Mr. Leonard's triglycerides are dangerously high. He should be on Lopid to help control this problem. His chart reveals that he was on the medication for short periods oftime in 2006 but then the medication was discontinued for no apparent reason. • When Mr. Leonard was put on insulin on 4/2/03, he was left on metformin (oral agent to lower blood sugar) even though the metformin can cause ketoacidosis in insulin dependent diabetics. • Like most ESP medical records, Mr. Leonard's chart is frequently illegible. And vital signs are rarely taken or recorded. • His medical records are missing an unusual event file even though the other charts I reviewed all have them. This seems strange given his multiple, severe health issues.
Given the grossly inadequate medical treatment revealed in Mr. Leonard's records, I find it astonishing that he is still alive.
Follow-up with Greg Leonard: I met with Mr. Leonard during my tour of ESP. He indicated that his medications have been refilled on time recently but he still experiences medication stoppages whenever he is transferred to Carson City for specialty care. He has also been taken off all ibuprofen-type medications as directed by the nephrologist.
When I met Mr. Leonard, a large goiter on his neck was immediately noticeable and it was clearly tender to the touch. The patient indicated that swallowing is often difficult, his neck is often very painful, and he experiences throbbing pain during the night. In response to my questioning why nothing is being done about this alarming goiter, Dr. Bannister asserted that Mr. Leonard's thyroid recently tested normal in May 2007. But regardless of one test from five
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months ago, the state of this large, tender goiter on Mr. Leonard's neck indicates that he must have a thyroid scan immediately. This man's health is simply too fragile to delay care in the face of such a visible problem.
Mr. Leonard stated that he experiences chronic back pain due to his botched back surgery and numbness in his left foot. His feet and ankles have also been swollen since about January 2007 due to diabetic neuropathy. The pain caused by these conditions remains largely untreated for no apparent reason. And the one effort to treat Mr. Leonard's pain in the new medical records I reviewed indicate that he was prescribed a Medrol dose pack in June of2007. These are steroids and very bad for diabetics like Mr. Leonard. While treating pain and diabetic neuropathy is medically indicated for Mr. Leonard, medical staff at ESP should not be prescribing medications that are contraindicated for his other serious medical conditions.
During our meeting, Mr. Leonard indicated that his blood pressure has recently improved because he is now prescribed Atenolol three times a day and his medications have recently been delivered on time and without lapses. When I checked his recent medical records, I noted that the patient is receiving Atenolol and Clonidine for blood pressure. This combination, if prescribed consistently and not allowed to run out as in the past, does seem to be working. It should be noted, however, that Clonidine is an alpha blocker and patients should never be taken off such a drug without graduated removal. Therefore, any sudden medication stoppages would be extremely dangerous for Mr. Leonard. Given the history of unfilled refills and medication delays at ESP, there is cause to worry that Mr. Leonard's Clonidine might be discontinued suddenly with potentially disastrous results.
When I reviewed Mr. Leonard's medication records on October 9,2007, I also noted that like many of the recent records I reviewed that day, his medication records were a month behind. In Mr. Leonard's case, the last medication record noted in his file was on September 10, 2007. This constitutes unacceptable and dangerously negligent charting practice.
Michael Mulder had a stroke in prison in 2001. He suffers paralysis of his right side and has difficulty talking. Based on the medical records I reviewed, it appears that he had a stroke on March 15,2001 but he wasn't transferred to the infirmary in ESP until March 31,2001. And the next note in his chart on April 2, 2001 states simply "transfer to RMF (regional medical facility) ASAP!" Based on the records, it appears that this man received no acute treatment for his stroke at all. This is not the correct way to treat strokes. If medical providers at ESP had treated his stroke adequately, he would not suffer the paralysis he does today.
Follow-up with Michael Mulder: Dr. Bannister also reviewed Mr. Mulder's case with me. He told me that Mr. Mulder had actually been sent immediately to UMC for care. I do not know how the actual medical charts could support that assertion. But after meeting Mr. Mulder in person, I am even more concerned about his current care.
Mr. Mulder was severely disabled by his stroke and he has been given absolutely no physical therapy to repair that damage. His right side is extremely impaired and he has difficulty
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walking and talking. His right arm, hand and fingers are also hideously contorted in an agonizing position that will only grow worse without treatment. The medical term for this disabling process is contracture. Without intervention Mr. Mulder's arm will contract until it rips itself from its own socket and his hand will bend in upon itself until the wrist breaks. It is unconscionable that this man has not even been given a simple brace to prevent the terrible contracture that has already occurred on his right side. A nurse tried to excuse this gross malpractice during my consult with the patient, but Mr. Mulder tried desperately to tell me with the greatest possible difficulty and frustration of speech that in the past the medical staff had ordered a brace that would not fit over his gnarled hand so that he could not use it. Dr. Bannister then asserted a vague security justification for not treating this man's disability, but given that the security justification does not seem to apply to braces ordered out of incompetence and indifference to the actual needs of the patient, his assertion seems a hollow excuse.
During my visit with Mr. Mulder he also told me that he is unable to shower because he cannot manage the step into the shower stalls and he has fallen unassisted several times. This problem was affirmed by staff and Dr. Bannister asserted that a ramp could be provided to compensate for Mr. Mulder's disability. I hope that Dr. Bannister has followed through on this suggestion. I am frankly shocked that no provisions seem to be made for disabled inmates at ESP. And it is extremely unlikely that of the 1000+ men at ESP, Mr. Mulder is the only one that requires special accommodation. Mr. Mulder must also be immediately provided with an appropriate brace to prevent further contracture in his right arm and hand, and he should be given therapy to undo some of the damage that has been done through ESP's medical malpractice.
Robert Ybarra suffers from deep vein thrombosis (DVT) and chronic, non-healing venous stasis ulcers on both lower legs and ankles. Prior to December 2006, Mr. Ybarra was placed in leg irons that cut into his flesh creating wounds that do not heal. Yet he receives no pain medications even though he is forced to live with open wounds.
I also noted the following in Mr. Ybarra's records:
• Because of his DVT, Mr. Ybarra should be treated with Coumadin, but he receives no treatment at all. This puts his life at great risk of pulmonary embolism.
• Mr. Ybarra's chronic leg ulcers could be cured in three weeks in a hyperbaric chamber, yet he's suffered with them untreated for years. He lives with open, draining wounds and using hydrogen peroxide and dressings are a useless treatment for this problem. Without adequate treatment, Mr. Ybarra wi11loose his feet and legs.
• DVT is extremely painful and Ybarra clearly suffers severe and chronic pain that is not treated.
• Vital signs rarely recorded. • Mr. Ybarra suffers severe migraines without treatment. • Mr. Ybarra is severely hypothyroid because his thyroid gland was destroyed for
hyperthyroidism on 5/2/83.
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• He was previously prescribed Seroquel for his manic depression and he responded to this treatment. But this drug was stopped and replaced with Trazidone. He hasn't done well since this change. Basically he was given a junk drug to replace a more expensive drugthis appears common at Ely State Prison.
Follow-up with Robert Ybarra: During my visit at ESP I had hoped to meet with Mr. Ybarra as he is clearly an urgent case. He had just been sent to Carson City, however, for a consultation with a Vascular Surgeon. Dr. Bannister discussed the possibility of skin grafts to deal with Mr. Ybarra's chronic ulcerations, but I still recommend treatment in a hyperbaric chamber as a first step. Skin grafts are generally the treatment oflast resort. I must note that I was pleased to see that Mr. Ybarra is finally being seen by an appropriate doctor after years and years of needless suffering. But sadly, that does not mean that the problem is solved. In my review of ESP medical records I repeatedly saw specialists recommending that prisoners receive an urgent procedure or treatment that ESP never followed through with or that was later denied for some unexplained reason. In Mr. Ybarra's case there can be no legitimate medical reason for not treating his condition.
II. Grossly Inappropriate and Inadequate Medical Care
Mr. Gis 45 years old and he suffers from an enlarged prostate and difficulty urinating. He is on medications to shrink the size of his prostate, but he must be given a urology consult to ensure that he does not have prostate cancer. Without an ultrasound and biopsy it is impossible to know ifhis condition is benign.
Mr. G is prescribed Flomax, but obtaining refills for the medication is a constant problem so that he is on a dangerous medical yo-yo.
His medical kites also reveal ear problems that are ignored by medical staff. Their stock response to these problems is that his conditions is not "urgent."
His charts also reveal that he has severe skin rashes that are totally refractive to treatment. And the severity of his untreated rashes appears to be driving him crazy. But providers will not refer him to a dermatologist. He needs a dermatological consult and a biopsy. Overall, Mr. G's medical issues seem to be largely ignored by the medical staff at ESP.
Follow-up with Mr. G: Although I requested to meet with Mr. G, he was not at ESP during my visit. I discussed his case with Dr. Bannister, however, and he told me that Mr. G had tested with a PSA of 0.2 and that a digital exam found that his prostrate was moderately enlarged. Given that an enlarged prostrate of and by itself is not necessarily a sign of cancer, Dr. Bannister thinks it unlikely that Mr. G has prostate cancer. This PSA test was not in the records I reviewed for Mr. G, but regardless of that, the PSA can be an ineffectual measure and does not preclude the need for further testing to ensure that Mr. G does not have a deadly cancer.
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Dr. Bannister also speculated that Mr. G may have urinary problems related to medications, but there is no proof in Mr. G's record lending credence to that theory without further followup. This patient still requires a urology consult and this should be done immediately.
Rickey Sechrest has chronic intermittent Herpetic Iritis of his right eye which is not treated promptly. When not treated promptly this disease leads to scarring and blindness. Given the care at ESP, Mr. Sechrest is at great risk of going blind.
Syphilis testing was also recommended for this man but never done. Mr. Sechrest is also extremely hypothyroid but he receives no treatment. And he has chronic lower leg swelling which is untreated as well. Moreover, he experiences chronic urinary tract infections.
Despite long-standing elevated liver enzymes no testing was ever done until 2005 when he was finally diagnosed with Hepatitis C. But he has never been treated for Hepatitis C. Moreover, he is frequently placed on steroids, which is contraindicated for patients with Hepatitis C. There is no indication in his medical records that he has ever been evaluated under a treatment protocol to determine whether or not he is a good candidate for Hepatitis C treatment.
Mr. Sechrest's file has no record of his age, the progress notes are extremely scanty, and there is almost no mental health record. His chart seems extremely incomplete for a man with considerable health problems.
Follow-up with Rickey Sechrest: During my visit with Dr. Bannister he informed me that Mr. Sechrest does not have iritis in his eye at this time. He agreed, however, that if the iritis is Herpetic, Mr. Sechrest needs antibiotics. Because Mr. Sechrest did not come to the patient consultation during my visit, I was unable to do a consultation with him or examine his eye. Dr. Bannister must follow-up with this patient and ensure that he is given all the antibiotics that he needs. Moreover, a full review of his health problems should be done and suitable treatment prescribed.
Miguel Castro is 52 years old and he has a dense cataract in his right eye, and a mild cataract in his left eye. Prison officials will only approve surgery ifMr. Castro pays for the procedure himself, although he faces certain disability without the surgery. Strangely, when he was given a physical exam on May 7,2007, the record indicates that he has no disability even though he is already blind in his right eye.
Mr. Castro tested positive for heliobacter pylori, and was treated in 2001 but he was never retested to see if the bacteria were wiped out.
He also suffers from a degenerative joint disease in his neck and will need surgery shortly.
This record has large, unexplained gaps.
14

Mr. I is an insulin dependent diabetic but he is on beta blocker drugs for hypertension. Beta blockers make diabetes mellitus very hard to control and should never be prescribed to patients like Mr. I if other, less harmful drugs can be used. In this case, it is hard to believe that another, safer option is unavailable. He is also frequently given steroid injections, and these steroids make his diabetes mellitus very hard to control. The use of these contraindicated medications is contributing to the fact that Mr. I has very poorly controlled diabetes.
The lab reports in Mr. I's file are essentially unreadable.
Also, like many of the patient records I reviewed, Mr. I is on chronic stomach acid blockers but has never been tested for heliobacter pylori even though it is apparently an epidemic at ESP.
Antonio Doyle is very anemic with a low white count and he has sickle cell trait as well. The combination of these conditions places him at high risk of infection.
He was supposedly seen by a cardiologist for his hypertension, and by an Internist for his anemia and low white count. However, I could only find a single EKG from the Cardiology consult and no report at all from the Internal Medicine consult.
He has severe lactose intolerance and medical providers treated him very badly in 2002 for this problem.
Mr. Doyle also has a hernia and is treated with a truss even though trusses are ultimately damaging to this condition.
Mr. K is a diabetic and like Mr. I, ESP medical is treating him with steroids that make his diabetes hard to control. Mr. K also suffers from diabetic neuropathy which is extremely painful. But he is never given any pain medication. In 2001 Mr. K was put on Fluvastatin (cholesterol lowering drug) and Lopid (triglyceride lowering drug) at the same time. This can cause rhabdomyolisis (muscles dissolve and proteins plug up kidneys and destroy kidneys). All doctors should know that this drug combination is potentially very, very dangerous for a patient. Mr. K was on these drugs for almost a year, maybe longer, as the record is mostly illegible.
Follow-up with Mr. K: Mr. K is a highly motivated patient. Although his medical records did not reflect this, he has made significant health strides by exercising religiously and watching his diet. He says that he's lost 50 pounds in the last year. In fact, when I met him for his consultation, he had just come back from the exercise yard. Mr. K has not taken medication for his diabetes since January 2007 and his blood pressure medications were just discontinued. While he has obviously made strides in is health, the medical department needs to continue monitoring his sugars and blood pressure to make sure that he can maintain good health without medications.
15

His recent medical records also revealed an LDL cholesterol of 102 which is very concerning and must be monitored. Also, a blood sugar taken on February 1, 2007 was 105 (not fasting). This is 6 points over normal but much, much lower than a blood sugar taken on March 17, 2006 which was 316.
Mr. K indicated that he was given Elavil for his diabetic neuropathy and that this has helped his left foot. His right foot, however, is still painful. A prescription for Neurontin might benefit this problem immediately. Mr. K now takes Priolosec but his dosage was cut in half suddenly and his acid reflex problem has returned.
Mr. L has a right inguinal hernia and is wearing a truss. Having a patient wear a truss for a hernia is not good medical practice. It weakens the inguinal ring and musculature and will, over time, make the hernia worse. The proper treatment is surgery if the patient can tolerate it. There appears to be no reason why Mr. L could not have a hernia operation.
Mr. L's physical exams are marked "normal" even though he has a large hernia. He also has chronic back pain that seems to be merely treated with ibuprofen.
Although Mr. L is on Mellaril (an antipsychotic medicine), and his hallucinations and paranoia are constantly being referred to, he is listed as having no mental illness in his mental health records. This is even stranger because the psychiatrist is signing the medical charts. Such poor record keeping practices can lead to improper or even disastrous medical care.
Mr. L's medical file is also strangely sparse. There are essentially no progress notes from 20022007.
Roy Moraga is an insulin dependent diabetic who also has Hepatitis C. He is not being treated for his Hepatitis. He also has hydradenitis supprativa (abscessed sweat glands) on buttocks, with large boils on back, neck, and under both arms, with cylinder shaped abscesses on scalp. This condition is extremely painful. In 2006, his untreated condition became so bad that he was forced to have a surgical excision of abscesses on buttocks. Accutane was recommended by a specialist, but the prison will not approve the drug. And it is probably the only thing that will clear Mr. Moraga's condition up. In addition MRSA (methcillin resistant staph aureus) has been cultured from his abscesses but is untreated. MRSA is a terrible threat to all staff and prisoners at ESP and should never be allowed to go untreated. Mr. Moraga's records also show that medical staff at ESP have actually refused to treat his skin infections for months at a time, and on at least one occasion stopped all of his medications without cause.
Finally, Mr. Moraga's records show that he is severely allergic to fish and has been on a "No Fish" diet for a long time. But inexplicably medical staff at ESP refused to renew this special diet without stating a cause.
16

Follow-up with Mr. Moraga: I met with Mr. Moraga during my visit to ESP and found that his skin condition is much improved. His diabetes remains difficult to control and unless his blood sugar can be brought down, it will be difficult to ever rid him of the MRSA virus when his skin abscesses. The providers indicated that Mr. Moraga sometimes refuses his insulin so I asked him why. He indicated that his medications are often brought to him at 3 am and he is not given food until 6 am. Without any food in his stomach, forcing him to take insulin at that time makes him sick. So, he declines that morning dose and takes a dose in the afternoon with food.
It is inappropriate medical care to give patients medications without food when those medications may cause wide blood sugar swings. ESP may be a large correctional institution, but it should be able to manage basic care with adequate staffing and planning. This type of medical negligence is an example of a totally unjustified indifferent practice.
III. Unprofessional Conduct and Grossly Improper Medical Charting Practices
The remaining records I reviewed were often too illegible to discern the type of care being provided or too sparse to know if the patient has significant health concerns. Below I give a brief overview of my concern with these records.
Charles Randolph's medical records are very illegible. Ten oftwenty-six lab reports are unreadable. And most of his medical kites cannot be deciphered. But one in particular is readily discernible.
Mr. Randolph submitted this medical kite to the Physician's Assistant, Max Carter, on June 14, 2007. The kite asks why his medication was changed because he felt the medication worked for him and he had been taking it for many years. Mr. Randolph had been prescribed atenolol and it was apparently discontinued for another medication, lisinopril, without informing the patient why the change was made. The PA's responded as follows to Mr. Randolph's question:
I direct you to a recent cardiology study (if needed) which shows that atenolol as monotherapy resulted in increased cardiac deaths - but then you are still alive and I'll be happy to put you back on the medicine so that your chances of expiring sooner are increased ... In fact I am putting you back on atenolol, don't kite for a change since you don't trust my knowledge of medicine.
Mr. Randolph's records show that PA Carter in fact did put him back on atenolol subsequent to this kite so that not only does Mr. Carter threaten the patient with a medication he claims is deadly, he then proceeds to deliberately put him back on the medication out of spite. This is outrageous, inexcusable conduct by a medical professional, but an excellent example ofthe overriding ethos of medical care at ESP.
James Beverly is prescribed an albuterol inhaler but it is impossible to know why from reading this chart. His lab reports are also illegible. He is given cortizone shots in both shoulders which
17

may be done because he has arthritis, but you can't tell by reading his medical records. There is also a mass at the base of his skull, but this too is unexplained in his chart.
Terrence Brothers' medical records are also largely illegible. He is 36 years old and apparently developed a bulging protusion after hernia surgery. It is unclear what, if anything has been done. X-rays in his records have conclusions that are deliberately blacked out and the practitioner signed them a year after they were taken. Like many others, this record is strangely sparse.
Mr. N has Hepatitis C and is totally untreated. There is no indication in his chart why he is untreated or if any protocol for treatment has been used to evaluate his case. This prisoner has been on administrative segregation since 4/8/02, but no reason is given in the chart. He has intermittent abdominal pain, but the cause is unknown. This chart lacks basic information like the prisoner's age. It is also strangely sparse, especially given that he's been in prison since 1996.
Robert Chappell has an inguinal hernia and is wearing a truss. I have given my views on trusses. He also asked for surgery on the hernia but was refused. The lab reports in this record are totally illegible. He suffers from hemochromotosis, a condition in which a person has too much iron in their body. It is impossible to tell from his records, however, what, if any treatment or monitoring he gets for this disease.
Mr. 0 suffers from back pain and chronic headaches. Provider responses in these records tell him that ESP medical will not treat chronic pain. His record also shows that he injured his right hand but no orthopedic consult was allowed.
Much of his chart seems to be missing. He had an MRI on 7124/96, but there is no MRI report in his chart and there is a reference in the records to a CAT of his head in 1996, but no report in the chart. Medical record reviews and photocopying dates are blacked out for no apparent reason.
Marty Fitzgerald has chronic neck pain that is caused by a congenitally narrow cervical canal. An MRI for his chronic neck pain was requested by an orthopedic consultant in June, 2006, but this was refused by the prison. He takes chronic acid blockers (Zantac), but has never been tested for heliobacter pylori even though it is virtually an epidemic at ESP.
Mr. Fitzgerald is on Indirol. Indirol is a very old drug and lots of patients at ESP are on this drug. But Indirol is a betablocker so that suddenly stopping the drug puts a patient at risk for heart attack. Given the problems with refills from the pharmacy and delays in giving medications at ESP, this is an especially dangerous drug to prescribe.
Marritte Funches suffers from chronic disuria (painful urine) and a moderately enlarged prostate. His medical records are largely illegible. The medical kites are difficult to read as are the physician notes. In 2004 there is a kite in which the patient is begging for help and the doctor refuses any pain medications. In another legible kite, Mr. Funches states that staff told him to beg for his medications. Based on the state of this record, it is impossible to discern any true picture ofMr. Funches' health
18

Jimmy Kirksey had leg pain in 2005 and saw the neurologist. He told the neurologist that his urine stream was irregular and exited sideways. As a result, the neurologist requested that he be seen by a urologist. But no referral was made by the prison doctors, there is no evidence of any urological consult in his chart, and he was never given any definitive treatment for his leg and groin pain. There appears to be a large amount of information missing from this record.
James Mack has Hepatitis C, but has never been treated for the disease. Like other Hepatitis C positive inmates at ESP, there is no indication in his file as to why he is not receiving treatment or whether or not a treatment protocol was applied to his case.
Mr. Mack is hypothyroid. In 2005 he was given surgery to try to destroy his thyroid. His file contains two letters from Internist, John Sutton, complaining that he cannot obtain the lab reports or medication lists from ESP that he needs to treat Mr. Mack and that these incompetent practices are endangering Mr. Mack's health.
The inmate complaint section of most ofMr. Mack's kites are also illegible, but the provider remarks can be read. Most of the lab reports in his record are also illegible.
Dennis McCabe has had several surgeries, and has suffered stab wounds. He is chronically anemic. He had three consults in 2004 for erythemia multiformi (large red raised areas that are related to allergy and autoimmune disorders). There are, however, no consult reports in his chart. Mr. McCabe was on vistaril (an antihistamine type drug used as calmative and for allergies) long-term for his erythema multiformi. The medication appeared to work but the record shows that the prison doctor refused to give vistaril to Mr. McCabe, stating that he "doesn't believe in it." Mr. McCabe is now on prednisone for his erythema multiformi. Prednisone has serious side effects and therefore patients on the drug must be monitored.
All ofMr. McCabe's lab reports before 2003 are unreadable. There are no progress notes in this chart after 2006.
Mr. Q's records contain very little information. He has an abdominal hernia, most of his colon was removed and he suffers from depression. There is no clinical history in this chart.
Lawrence Seville Parks tested positive to heliobacter pylori in 2003 but medical providers have never given him any treatment or follow-up for that condition. He's also been prescribed Indocin for years which can suppress bone marrow, and is very hard on kidneys and liver. Despite this, he has never had any indicated laboratory tests to ensure that he is not suffering those side effects. As I've stated earlier, this drug is rarely used on human beings anymore and should be used sparingly at most.
Donald Phillips is an HIV+ prisoner who cannot seem to get enough food to maintain his
weight. He also has Hepatitis C but has never been treated for the disease. Like other Hepatitis C positive inmates at ESP, there is no indication in his file as to why he is not receiving treatment or whether or not any treatment protocol was used to evaluate him as a candidate for Hepatitis C treatment.
19

Mr. R is another prisoner on large doses of Indocin without any of the required lab follow-up. He is also on chronic stomach acid blockers but has never been tested for heliobacter pylori. He was treated in 2006 with oral ketoconazole (an anti-fungal) but this treatment was not followed with required lab testing to ensure that no liver damage results from taking the drug. Mr. R suffers from an over-active bladder which could be treated, but he's never been given any medications to alleviate his problem.
Norman Powell has a prosthetic in his right eye and glaucoma in his left eye. His glaucoma medications are almost never refilled on time which is unnecessarily straining the remaining eye. His vision comes and goes in the left eye, and it is sometimes gone for 48 hours. This temporary blindness in the left eye has been diagnosed as ophthalmic artery migraine. He suffers from chronic low back pain which is treated with ibuprofen and given plavix for his ophthalmic artery migrame.
Cary Williams is 44 years old and he has chronic dyspepsia. He was treated several times for heliobacter pylori but he is still on constant stomach acid blockers. Starting in 1990 he's suffered severe labrynthitis periodically. Although Mr. S has been incarcerated since 1982, there are only 68 kites in his whole medical file and his chart has very few physician orders or progress notes for such a long incarceration.
Matthew White is a 25-year old man with little medical contact documented in his file. He tested borderline positive for Hepatitis C in 2001. His kites indicate that he's been alternately told that he's positive and negative for the virus. Needless to say, this would be concerning for any patient. And a definitive answer should be sought. In order to determine his actual Hep. C status a viral count needs to be taken.
CONCLUSION
The pervasive disregard for human suffering and the shocking medical malpractice revealed in the 35 case files I reviewed is almost unbelievable. In my opinion these show a system that is so broken and dysfunctional that everyone of the prisoners at Ely State Prison who has serious medical needs, or who may develop serious medical needs, is at enormous risk.
I would strongly recommend the following to address the crisis in the delivery of medical care at Ely State Prison: (1) The Nevada Department of Corrections should immediately hire a qualified full-time physician to oversee the medical department at ESP. This doctor must have the authority to order consults and testing and ensure that these orders are carried out. (2) An independent, highly qualified auditor should be retained to conduct a thorough audit of the system of delivery of medical care at ESP, with written findings and recommendations. (3) Following the initial audit, there needs to be regular independent monitoring to ensure that necessary reforms are implemented and an adequate standard of care maintained.
20

(4) A standard a standard record-keeping protocol must be implemented to ensure that the records at Ely State Prison are no more than a week behind. (5) An outside prisoner advocate should be appointed immediately to monitor prisoner requests for medical attention and the responses they received, and to provide reports to the auditor. William K. Noel, DO
21

 
 LEGAL DEPARTMENT NATIONAL PRISON PROJECT

I

VIA EMAIL AND U.S. Mail

December 5, 2007

Howard Skolnik, Director Nevada Department of Corrections Central Administration Stewart Facility 5500 Snyder Avenue, Bldg. 17 Carson City, Nevada 89701

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
PLEASE RESPOND TO, NATIONAL PRISON PROJECT 915 15TH STREET, NW 7TH FLOOR WASHINGTON, DC 20005-2112 T/202,393,4930 F/202.393.4931 WWW,ACLU,ORG
ELIZABETH ALEXANDER DIRECTOR ATTORNEY AT LAW
NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 TI212,549.2500
OFFICERS AND DIRECTORS NADINE STROSSEN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR
RICHARD ZACKS TREASURER

Dear Mr. Skolnik:
We are attaching with this letter Dr. William Noel's report on his review of medical care at Ely State Prison (ESP). The report, which we had Dr. Noel prepare at your request, is based on his review of the medical records of thirtyfive ESP prisoners and his two-day visit to ESP to meet with NDOC's Medical Director, Dr. Bannister. Dr. Noel briefed Dr. Bannister at that time on the urgent cases he had identified.
Dr. Noel's report sets forth in considerable detail the pattern of gross medical abuse at ESP, and the callous and wanton infliction of pain and suffering on patients with very serious medical needs, that we summarized for you immediately after the record review. Dr. Noel's report concludes that at least one man has already died an unnecessary, slow and agonizing death and that in all likelihood there will be more such deaths and unnecessary suffering if immediate and systemic changes are not made in the provision of health care at ESP.
During their meeting at Ely, Dr. Bannister agreed with many of Dr. Noel's treatment recommendations for the most urgent cases but we have not received any update from the Department as to whether these measures were actually implemented. In fact, what we are hearing from the patients is that they are still not receiving essential treatments that Dr. Noel recommended, and Dr. Bannister agreed to provide, nearly two months ago. In some cases medical treatment has actually gotten worse since that meeting.

Even ifNDOC medical staff were to finally provide the care so urgently needed in the individual cases Dr. Noel discussed with Dr. Bannister, this would not solve the major systemic deficiencies in the delivery of health care to the thousand men at ESP. You explained to us when we met last June that NDOC's budget is so tight that it won't even allow the Department to offer a salary high enough to attract a qualified full-time doctor willing to work at ESP. Since the medical crisis at ESP extends far beyond the lack of a doctor on site, it seems unrealistic to

~,-::.::- @

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

expect that NDOC will be able to summon the resources to resolve critical deficiencies in the delivery of health care without the assistance of the Governor and the Nevada Legislature.

During the Nevada Legislature's 2005 and 2006 interim, the Legislative Commission's Subcommittee to Study Sentencing and Pardons, Parole and Probation heard testimony from a number of Nevada citizens regarding grossly inadequate medical care for prisoners with serious illnesses, in particular those at ESP. The witnesses provided so many harrowing examples that on October 2006 Chairman Home, at the recommendation of the Subcommittee, sent a formal request to the Governor that the Executive Branch carry out an evaluation of the adequacy of inmate access to medical care. The Governor's Office apparently took no action on the Legislature's request, and more than a year later the crisis has only deepened.

We believe that a great deal might be accomplished in a meeting between you, the Governor, and the ACLU to discuss a plan for systematically addressing these urgent issues. We will forward Dr. Noel's report to Governor Gibbons with a request for such a meeting. We appreciate your openness to hearing our concerns and your interest in resolving them. We hope to be able to avoid prolonged litigation and further unnecessary suffering and deaths at Ely State Prison.

Sincerely,

~g fVU ut1~_1~~

Staff Counsel

Asso6Z'e Director

National Prison Project of the ACLU

rlu.. e~

.

Lee Rowland Jif ~~ fir.i~,~

Maggie McLetchie1

ACLU ofNevada

enclosure

cc: Senator Terry Care Senator Mike McGinness

1 Not yet admitted to practice law in Nevada.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Senator Dennis Nolan Senator Valerie Wiener Assemblyman Bernie Anderson Assemblyman John Carpenter Assemblyman William Home Assemblywoman Sheila Leslie Assemblyman Gam Mabey Assemblyman Harvey Munford Assemblyman David Parks Assemblyman Tick Segerblom Catherine Cortez-Masto, Attorney General Janet Traut, Deputy Attorney General

 
 LEGAL DEPARTMENT NATIONAL PRISON PROJECT

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
PLEASE RESPOND TO: NATIONAL PRISON PROJECT 915 15TH STREET. N W 7TH FLOOR WASHINGTON. OC 20005-21 12 Tl202.393.4930 F1202 393.4931 WWW.ACLU.ORG
ELIZABETH ALEXANDER DIRECTOR ATTORNEY AT LAW
NATIONAL OFFICE 1 2 5 B R O A D STREET. 18TH FL N E W YORK. NY 10004-2400 Tl212.549.2500
OFFICERS AND DIRECTORS NADINE STROSSEN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR
RICHARD ZACKS TREASURER

December 6,2005
VIA U.S. MAIL AND EMAIL
Governor Jim Gibbons State Capitol 101 N. Carson Street Carson City, NV 89701
Dear Governor Gibbons:
For the last several months the ACLUYsNational Prison Project has been looking into allegations of deficient medical care at Ely State Prison (ESP). We retained a physician, Dr. William Noel, to help us evaluate these allegations. Dr. Noel has provided us with a written report of his findings, which we enclose here.
Dr. Noel's report sets forth in considerable detail a pattern of gross medical abuse at ESP, and of the callous and wanton infliction of pain and suffering on patients with very serious medical needs. The report concludes that at least one man has already died an unnecessary, slow and agonizing death and that in all likelihood there will be more such deaths and unnecessary suffering if immediate systemic changes are not made in the provision of health care at ESP.
We have shared Dr. Noel's report with NDOC Director Howard Skolnik, who is aware of our concerns, has facilitated our investigation, and has expressed an interest in addressing these problems with us in a collaborative manner. But we have been working with Mr. Skolnik for several months now, and so far the situation has not improved at ESP. Moreover, it appears that NDOC does not currently have the resources to carry out urgently needed systemic reforms, without the assistance of your office.
The Nevada Legislature drew the attention of the Governor's Office to the problem more than a year ago. The Legislative Commission's Subcommittee to Study Sentencing and Pardons, Parole and Probation heard testimony in the spring of 2006 from a number of Nevada citizens regarding grossly inadequate medical care for seriously ill prisoners, in particular at ESP. The witnesses provided so many harrowing examples that on October 6,2006, Chairman Home, at the recommendation of the Subcommittee, sent a formal request to your predecessor, Governor Guinn, to have the Executive Branch carry out an evaluation of the adequacy of inmate access to medical care. The Governor's Office apparently took no action on the Legislature's request. Meanwhile, gravely ill patients continue needlessly to suffer permanent injuries and excruciating pain while their serious medical conditions go untreated.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

State officials' deliberate indifference to prisoners' serious medical needs violates the Eighth Amendment prohibition against cruel and unusual punishment. There is ample evidence that Nevada officials are violating that constitutional ban at Ely State Prison. We realize that the State is facing a budget crisis but the courts have rejected lack of funding as an excuse for violating the U.S. Constitution.

Prolonged litigation against the State may still be avoided if all parties can work towards a common goal. Dr. Noel's report makes recommendations for the immediate reforms needed to address the crisis in delivery of medical care at ESP We believe that a great deal might be accomplished in a meeting between you, Director Skolnik, and the ACLU to consider a plan for addressing these recommendations and fixing the dysfunctional medical care system at ESP.

We hope to hear from you soon agreeing to such a meeting and suggesting possible dates in the near future.

Sincerely,

b* @ : g i

Staff Counsel

~ s & i a t e Director

National Prison Project of the ACLU

/# Lee Rowland

- W

Maggie ~ c ~ e t c h i e '

ACLU of Nevada

- 0

enclosure

cc: Senator Terry Care Senator Mike McGinness Senator Dennis Nolan Senator Valerie Wiener Assemblyman Bernie Anderson Assemblyman John Carpenter Assemblyman William Home Assemblywoman Sheila Leslie Assemblyman Garn Mabey

Assemblyman Harvey Munford Assemblyman David Parks Assemblyman Tick Segerblom Director Howard Skolnik Catherine Cortez-Masto,
Attorney General Janet Traut,
Deputy Attorney General

Not yet admitted to practice law in Nevada.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEVADA
(Class members who have exhausted administrative remedies), on their own behalf and on behalf of those similarly situated), Plaintiffs,
Governor, Secretary of State, Attorney General, Commissioner of Department of Corrections, Medical Director, ESP Warden, Max Carter, in their official capacities, Defendants.
CONSENT DECREE
Back-wound This Consent Decree addresses the Parties' concerns about systemic deficiencies in the delivery of medical care to prisoners at Ely State Prison that put prisoners at significant risk of serious injury. The Parties, in the interests of judicial economy and the rational use of the Parties' limited resources, agree to a resolution of these concerns on the following terms: Sti~ulationsand Settlement Terms (1) The Parties stipulate to the certification of the class of all prisoners who are now or will in the future be incarcerated at Ely State Prison. (2) The Parties stipulate that nothing in this Consent Decree constitutes either an admission of liability or any evidence of liability with respect to individual suits for damages. (3) Defendants shall comply, and shall ensure that their medical services providers comply, with

the National Commission on Correctional Healthcare (NCCHC) Standards for Health Services in Prison (2003). (4) Within sixty days of the parties' signing of this Consent Decree, Defendants shall retain a qualified full-time physician to work on-site at ESP. (5) Defendants shall ensure Plaintiffs' counsel and medical experts access, on reasonable notice, to ESP, and to medical records, documents, prisoners, and staff, for purposes of monitoring for compliance with the terms of this Consent Decree. Plaintiffs will notify Defendants as to any deficiencies they may identify. Plaintiffs will not seek any relief fiom the Court to enforce the terms of this Consent Decree without first attemptingto negotiate an informalresolution with Defendants. (6) The Court shall retain jurisdiction to enforce the provisions of this Consent Decree. (7) The Court may award reasonable attorney fees, expert fees, and costs incurred in enforcing the
terms of this Consent Decree, pursuant to 28 U.S.C. 5 1988 and this agreement.
(8) The remedies set forth in this Consent Decree are narrowly drawn, extend no further than necessary to prevent irreparable harm to Plaintiffs, and are the least intrusive means necessary to prevent an unreasonable risk of injury to Plaintiffs. (9 ) The Court finds, following hearing pursuant to Fed. R. Civ. P. 23 (e), that the relief set forth
above is appropriate and meets the standard set forth in 18 U.S.C. 5 3626(a).

By: Counsel for Plaintiffs

Date:

By: Counsel for Defendants

Date:

SO ORDERED, this day of

,2008.

UNITED STATES DISTRICT JUDGE

 
 American Civil Liberties Union : ACLU Calls on Nevada Governor to Address Grossly Inadequa... Page 1 of 2

URL: http://www.aclu.org/prison/medical/33011prs20071206.html
ACLU Calls on Nevada Governor to Address Grossly Inadequate Prison Health Care (12/6/2007)
Report by Medical Expert Details a Pattern of "Shocking Disregard for Human Life"
FOR IMMEDIATE RELEASE CONTACT: media@aclu.org
ELY, NV –The American Civil Liberties Union today called on Nevada Governor Jim Gibbons to investigate deficient medical care at Ely State Prison (ESP), home of Nevada’s death row where, according to a report by a medical expert commissioned by the ACLU, gravely ill prisoners are denied treatment for excruciatingly painful and potentially fatal medical conditions. The ACLU sent the report – along with a letter demanding that the state commit the resources necessary to carry out needed systemic reforms – to Gibbons today after conferring about the problem for several months with Nevada Department of Corrections Director, Howard Skolnik.
"We are deeply concerned that there doesn’t seem to have been any improvement in the delivery of medical care to the prisoners at Ely in the months since we brought these problems to the Department’s attentions and made recommendations for fixing the system," said Amy Fettig, staff counsel for the ACLU National Prison Project. "In fact, from the reports we are receiving from prisoners, we fear that medical care may have gotten worse."
ACLU attorneys sent Skolnik a letter yesterday requesting a meeting with him and Gibbons.
In the report the ACLU sent to Gibbons, Dr. William Noel, who reviewed the medical records of thirty-five prisoners, wrote that he found "a pattern of gross medical abuse at ESP," and said the treatment was "the most shocking and callous disregard for human life and human suffering, that I have ever encountered in the medical profession in my thirty-five years of practice." Noel describes the condition of David Riker, a prisoner whose protopathic nerve pain is going untreated, as "a living hell," and said he finds it "simply unimaginable" that a medical professional would refuse to treat such severe chronic pain.
The ACLU’s National Prison Project retained Noel to review the medical records because the ACLU of Nevada has been receiving an extraordinarily large number of complaints about grossly inadequate medical treatment at ESP.
"Prisoners at ESP write to us desperately seeking help," said Lee Rowland, a staff attorney with the ACLU of Nevada. "It’s clear that these aren’t isolated problems."
Among the cases cited in Noel’s report was that of Patrick Cavanaugh, a diabetic prisoner, who died a slow and agonizing death. Medical staff denied him insulin for three years, which caused him to develop gangrene that prison officials refused to treat, allowing him to rot to death. In the report, Noel called the death " almost too horrible to believe."
Another prisoner, Charles Randolph, asked medical staff why they had taken him off of the heart medicine he had been taking for 10 years, according to documents obtained by the ACLU. The physician’s assistant at the facility – there is no full-time physician on site – responded in writing that a recent study found that this medicine had "resulted in increased cardiac deaths," according to medical complaint form filed by Randolph. The physician’s assistant continued his response on the complaint form, "But you are still alive and I’ll be happy to put you back on the medicine so that your chances of expiring sooner are increased… In fact, I am putting you back on [the original

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American Civil Liberties Union : ACLU Calls on Nevada Governor to Address Grossly Inadequa... Page 2 of 2
medicine]."
"The ACLU tracks medical care in prison systems throughout the country, and what is happening at Ely may well be the most horrific example of the denial of basic medical treatment we have ever seen anywhere," said Margaret Winter, Associate Director of the ACLU National Prison Project. "The level of callousness and human suffering revealed in the medical records is stunning, well-documented and almost unbelievable. Nevertheless, we hope to resolve the issues in Noel’s report through collaborative efforts with the Nevada Department of Corrections and the governor’s office, rather than prolonged litigation."
Anti-death penalty advocates are concerned that untreated severe chronic pain and illness may be contributing to the staggering number of volunteer executions of death row prisoners in Nevada. Ten out of the last twelve prisoners to be executed in Nevada volunteered to be executed, including William Castillo, 35, who volunteered for execution just last month. His execution is currently stayed by the Nevada Supreme Court in light of questions about the constitutionality of lethal injection protocols.
"This troubling rate of volunteerism is many times greater than anywhere else in the country," said Brian Stull, staff attorney with the ACLU Capital Punishment Project. "For Nevada to execute seriously ill prisoners who give up their appeals and volunteer for execution after being worn down by untreated and unendurable pain is unconscionable and perverts the critically important appeal process."
The ACLU’s letter to Governor Gibbons is available online at: h www.aclu.org/prison/medical/32994lgl20071206.html
Dr. Noel’s report on medical care at ESP is available online at: www.aclu.org/prison/medical/33009lgl20071206.html
The ACLU’s letter to Nevada Department of Corrections Director Skolnik: www.aclu.org/prison/medical/32995lgl20071206.html
Today’s Los Angeles Times story about medical care at Ely State Prison can be found online at: www.latimes.com/news/nationworld/nation/la-na-ely6dec06,0,2957466.story?coll=la-home-center
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web siteof the American Civil Liberties Union and the
ACLU Foundation. Learn more about the distinction between these two components of
the ACLU.
User Agreement | Privacy Statement | FAQs

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3/10/2008

 
 American Civil Liberties Union : ACLU Calls on Nevada Prison Officials to Comply with Natio... Page 1 of 2

URL: http://www.aclu.org/prison/gen/33529prs20080107.html
ACLU Calls on Nevada Prison Officials to Comply with National Health Care Standards (1/7/2008)
FOR IMMEDIATE RELEASE CONTACT: media@aclu.org; (212) 549-2666
Citing Horrific Medical Care Problems at Ely State Prison, Group Seeks Court Decree Requiring Vast Health Care Improvements
ELY, NV – The American Civil Liberties Union today proposed to Nevada government officials, including Governor Jim Gibbons and Corrections Director Howard Skolnik, a series of basic reforms to dramatically improve prison health care at Ely State Prison (ESP).
Following a damning report by a medical expert hired by the ACLU, the ACLU is recommending that the Nevada Department of Corrections (NDOC) comply with the nationally recognized medical standards established by the National Commission on Correctional Healthcare (NCCHC). Additionally, the ACLU’s proposal mandates that NDOC hire a qualified, full-time physician to work on-site at ESP within 60 days and agree to allow the ACLU and medical experts to monitor ESP’s compliance with the nationally recognized NCCHC correctional health care standards.
“We are hopeful that Director Skolnik will embrace these much-needed changes given the irrefutable evidence that the health care system at Ely State Prison is absolutely abysmal,” said Amy Fettig, staff counsel for the ACLU National Prison Project. “Too many people have suffered unnecessarily already because of grossly inadequate medical care and it is time to make some dramatic improvements.”
Dr. William Noel, the medical expert retained by the ACLU, revealed in his report that gravely ill prisoners are denied treatment for excruciatingly painful and potentially life-threatening medical conditions, and that there is a woeful shortage at the prison of qualified medical personnel. The Los Angeles Times reported on Dec. 6 that “prisoners at Ely have been denied care for heart problems, diabetes and other serious medical conditions. Earlier this year, a nurse was fired after complaining about substandard care at the facility, which she said led to one inmate needlessly dying of gangrene.”
If the ACLU’s recommendations are agreed upon, they would be constructed into a binding court-sanctioned consent decree. If NDOC failed to comply with the terms of the agreement, the ACLU would have the right to seek court intervention.
“The complaints we receive from Ely State Prison about medical care are not only horrific, but also raise serious legal questions,” said Lee Rowland, staff attorney for the ACLU of Nevada. “We believe it is essential for NDOC to allow outside monitoring of the health care system at ESP in order to ensure that constitutional standards are met, and that nationally recognized practices for correctional health care are put in place.”
ESP is home to Nevada’s death row, where 10 out of the last 12 prisoners to be executed were volunteers. Advocates are concerned that this extraordinarily high rate of volunteerism may be related to grossly deficient medical care and unconstitutional conditions at ESP that have been recently exposed by the ACLU.
“There is a troubling rate of volunteerism in Nevada that is significantly higher than anywhere else in the country,”

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American Civil Liberties Union : ACLU Calls on Nevada Prison Officials to Comply with Natio... Page 2 of 2
said Brian Stull, a staff attorney with the ACLU's Capital Punishment Project. “It is unconscionable for Nevada to execute seriously ill prisoners who have been worn down by untreated and unendurable pain and who then forsake their appeals and volunteer for execution. It is a perversion of the critically important appeal process.”
Noel wrote in his report that medical care at ESP shows “the most shocking and callous disregard for human life and human suffering that I have ever encountered in the medical profession in my 35 years of practice.” According to the report, which was sent to Skolnik early last month, there is a horrific pattern of neglect, misguided health care policies, and little accountability for frequently under-qualified staff. Noel also noted numerous instances where important medical records were missing from prisoners’ medical files. Finally, Noel and the ACLU have raised serious concerns about prisoners who died and were cremated before autopsies were completed and their families notified.
The ACLU’s proposed agreement can be found online at: www.aclu.org/prison/medical/33496lgl20080104.html
Noel’s report on medical care at ESP is available online at: www.aclu.org/prison/medical/33009lgl20071206.html
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web siteof the American Civil Liberties Union and the
ACLU Foundation. Learn more about the distinction between these two components of
the ACLU.
User Agreement | Privacy Statement | FAQs

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3/10/2008

 
 American Civil Liberties Union : ACLU Lawsuit Charges Grossly Inadequate Medical Care At S... Page 1 of 2

URL: http://www.aclu.org/prison/medical/34366prs20080306.html
ACLU Lawsuit Charges Grossly Inadequate Medical Care At State Prison In Nevada (3/6/2008)
Prisoners At Risk Of Pain, Injury And Premature Death
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2582 or 2666; media@aclu.org
ELY, NV – The American Civil Liberties Union filed a class-action lawsuit today against the director of Nevada’s Department of Corrections and other top governmental officials in Nevada for failing to rectify a pervasive pattern of grossly inadequate medical care at the Ely State Prison that creates a substantial risk of serious medical harm for each of the prison’s 1,000 inmates. The lawsuit charges that the prison lacks the most basic elements of an adequate prison health care system and deprives prisoners of the minimal civilized measure of life’s necessities.
“The state just hasn't shown a sense of urgency in addressing the crisis at Ely,” said Amy Fettig, staff counsel with the ACLU’s National Prison Project. “They assured us that they were going to carry out far-reaching reforms to address the problems we brought to their attention, but that was months ago and they've made only half-hearted gestures to fix their broken system. We had hoped to avoid litigation but we can't in good conscience wait any longer, with the men at Ely still at such risk.”
The filing of today’s lawsuit comes nearly three months after the release of a medical report that documented how gravely ill prisoners at Ely are routinely denied treatment for excruciatingly painful and potentially fatal medical conditions and revealed what Dr. William Noel, the medical expert commissioned by the ACLU to investigate medical conditions inside Ely and author of the report, called “a pattern of gross medical abuse.”
On the heels of the report’s release last December, ACLU attorneys proposed in a consent decree a series of basic reforms that would have dramatically improved prison health care at Ely, including complying with nationally recognized standards for correctional health care. The proposed consent decree was rejected by Nevada’s Board of State Prison Commissioners.
The ACLU’s National Prison Project retained Noel to review the medical records of 35 prisoners at Ely because the ACLU of Nevada had been receiving an extraordinarily large number of complaints about grossly inadequate medical treatment at the prison.
“Prisoners at the Ely State Prison have written to us in desperate need of help, in desperate need of quality medical treatment,” said Lee Rowland, staff attorney with the ACLU of Nevada. “It is unfortunate that this action was necessary to prompt corrections officials to uphold their constitutional obligation of providing a basic level of medical care to the inmates in their care, but quality care is an immediate need that cannot be delayed any longer.”
The lawsuit, filed on behalf of all of Ely’s prisoners – more than 60 of whom are currently sitting on death row – contains six named plaintiffs, including 36-year-old David Riker who, according to the lawsuit, suffers from rheumatoid arthritis and fibromyalgia that cause debilitating chronic pain. The lawsuit alleges that Riker has never received prescribed medications and x-rays ordered by an outside physician and was told by Ely medical staff that treating chronic pain is against the policy of the prison.
In his report, Noel calls Riker’s untreated protopathic nerve pain “a living hell” and says he finds it “simply

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American Civil Liberties Union : ACLU Lawsuit Charges Grossly Inadequate Medical Care At S... Page 2 of 2
unimaginable” that a medical professional would refuse to treat such severe, chronic pain.
The ACLU names as defendants in its lawsuit Nevada Governor James Gibbons, Secretary of State Ross Miller, Attorney General Catherine Cortez Masto, Howard Skolnik, director of the Nevada Department of Corrections (NDOC), Robert Bannister, NDOC’s medical director, and E.K. McDaniel, the warden of Ely State Prison.
“The level of medical care provided at Ely is as horrific as any we have ever seen at any of the prison systems that we track across the country,” said Margaret Winter, Associate Director of the ACLU’s National Prison Project. “We have been stunned at the amount of human suffering that is allowed to go on there. And while we had hoped that working collaboratively with the Department of Corrections and the governor’s office would lead to the resolution of some of the most pressing issues at Ely, it simply has not.”
Other named plaintiffs in the lawsuit include 42-year-old Roger Libby, whose requests for surgery to repair his softball-sized hernia have been denied, 46-year-old Rickey Sechrest, whose chronic intermittent Herpetic Iritis of his right eye has gone untreated and could cause blindness and who has not received treatment for his Hepatitis C, 36year-old Terrence Brothers who has suffered from untreated open sores on his scalp for more than 10 years, 36-yearold Jeffrey Hosmer whose chronic severe back and neck pain and numbness on his left side have gone untreated despite his living in the prison’s infirmary and whose medication for bi-polar disorder is often interrupted, and 47year-old Mark Whittington, who has suffered continual problems with arbitrarily discontinued medications and dosages of prescribed medications running out for his serious medical conditions.
Additional information about the ACLU’s efforts to improve medical conditions at the Ely State Prison, including the ACLU’s lawsuit, the proposed consent decree, Dr. William Noel’s medical report, an ACLU letter to Nevada Gov. James Gibbons and an ACLU letter to Nevada Department of Corrections Director Howard Skolnik can be found online at: www.aclu.org/ely
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web siteof the American Civil Liberties Union and the
ACLU Foundation. Learn more about the distinction between these two components of
the ACLU.
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3/10/2008

 
 Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 1 of 29
CLOSED,P1
United States District Court District of Nevada (Reno)
CIVIL DOCKET FOR CASE #: 3:08−cv−00115−LRH−VPC

Riker et al v. Gibbons et al Assigned to: Judge Larry R. Hicks Referred to: Magistrate Judge Valerie P. Cooke Cause: 42:1983 Prisoner Civil Rights
Plaintiff
David Robert Riker

Date Filed: 03/06/2008 Date Terminated: 10/28/2010 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Allen Lichtenstein Allen Lichtenstein, Ltd 3315 Russell Rd Suite 222 Las Vegas, NV 89120−0000 702−433−2666 Fax: 702 433 9591 Email: alichtensteinlaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Fettig National Prison Project−ACLU 915 15th Street, NW Washington, DC 20005 202−548−6608 Fax: 202−393−4931 Email: afettig@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Winter National Prison Project−ACLU 915 15th Street, NW Washington, DC 20005 202−584−6605 Fax: 202−393−4931 Email: mwinter@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Hanlon Holland &Knight LLP 2099 Pennsylvania Avenue, NW Washington, DC 20006 202−828−1871 Fax: 202−955−5564 Email: shanlon@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland ACLU of Nevada 1325 AirMotive Way Suite 202 Reno, NV 89502 775−786−1033 Fax: 775−786−0805 Email: leeberks@gmail.com TERMINATED: 10/20/2010

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 2 of 29

Margaret A McLetchie 3434 Villa Hermosa Dr Las Vegas, NV 89121 (702)539−6851 Email: maggie@nvlitigation.com ATTORNEY TO BE NOTICED

Plaintiff Roger Libby

represented by Allen Lichtenstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Fettig National Prison Project−ACLU 915 15th Street, NW Washington, DC 20005 202−584−6608 Fax: 202−393−4931 Email: afettig@npp−aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ricky David Sechrest TERMINATED: 04/17/2008

represented by Allen Lichtenstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Plaintiff Terrence Brothers

represented by Allen Lichtenstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Winter

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 3 of 29

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeffrey Scott Hosmer

represented by Allen Lichtenstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mark Whittington

represented by Allen Lichtenstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address)

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 4 of 29

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Derek A. Constantino Class Action Member Plaintiff.

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Allen Richardson 62018 Ely State Prison PO Box 1989 Ely, NV 89301 Class Action Member Plaintiff.

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED
Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 5 of 29

David Owens Hooper Class Action Member Plaintiff.

Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
William Leonard Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jeremy A. Crozier Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address)

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 6 of 29

ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kitrich Aaron Powell 34212 Ely State Prison PO Box 1989 Ely, NV 89301 Class Action Member Plaintiff also known as Aaron Powell

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED
Amy Fettig (See above for address) ATTORNEY TO BE NOTICED
Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
James D. Ofeldt Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Antonio Doyle Class Action Member Plaintiff.

represented by Allen Lichtenstein (See above for address)

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 7 of 29

ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Frank M. Peck Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Marritte Funches Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 8 of 29

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Phillip Ruffa Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Said Elmajzoub Class Action Member Plaintiff

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Amy Fettig (See above for address) ATTORNEY TO BE NOTICED

Lee B Rowland (See above for address) TERMINATED: 10/20/2010

Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Steve Cox Class Action Member Plaintiff.

represented by Allen Lichtenstein (See above for address) ATTORNEY TO BE NOTICED

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 9 of 29
Amy Fettig (See above for address) ATTORNEY TO BE NOTICED
Lee B Rowland (See above for address) TERMINATED: 10/20/2010
Margaret A McLetchie (See above for address) ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) ATTORNEY TO BE NOTICED
Stephen F. Hanlon (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Governor James Gibbons

represented by Stephen D. Quinn Office of the Attorney General 100 North Carson Street Carson City, NV 89701−4717 775−684−1100 Fax: 775−684−1108 Email: squinn@ag.nv.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clark G Leslie Office of the Attorney General 100 N Carson St Carson City, NV 89701 775−684−1258 Fax: 775−684−1275 Email: cleslie@ag.nv.gov ATTORNEY TO BE NOTICED
Janet E Traut Nevada Attorney General's Office Bureau of Litigation Personnel Division 5420 Kietzke Lane, Suite 202 Reno, NV 89511 775−850−4107 Fax: 775−688−1822 Email: jtraut@ag.nv.gov TERMINATED: 08/24/2009
Michon A. Martin Office of the Attorney General 100 North Carson Street Carson City, NV 89701 775−684−1261 Fax: 775−684−1275 Email: mmartin@ag.nv.gov ATTORNEY TO BE NOTICED
William J Geddes State of Nevada Office of the Attorney

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 10 of 29

General Division of Public Safety 555 Wright Way Carson City, NV 89711 (775) 684−4606 Fax: (775) 684−4601 Email: will@TheGeddesLawFirm.com ATTORNEY TO BE NOTICED

Defendant Secretary of State Ross Miller

represented by Stephen D. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clark G Leslie (See above for address) ATTORNEY TO BE NOTICED

Janet E Traut (See above for address) TERMINATED: 08/24/2009

Michon A. Martin (See above for address) ATTORNEY TO BE NOTICED

William J Geddes (See above for address) ATTORNEY TO BE NOTICED

Defendant
Attorney General Catherine Cortez Masto

represented by Stephen D. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clark G Leslie (See above for address) ATTORNEY TO BE NOTICED

Janet E Traut (See above for address) TERMINATED: 08/24/2009

Michon A. Martin (See above for address) ATTORNEY TO BE NOTICED

William J Geddes (See above for address) ATTORNEY TO BE NOTICED

Defendant Howard Skolnik

represented by Stephen D. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clark G Leslie (See above for address) ATTORNEY TO BE NOTICED

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 11 of 29

Janet E Traut (See above for address) TERMINATED: 08/24/2009

Michon A. Martin (See above for address) ATTORNEY TO BE NOTICED

William J Geddes (See above for address) ATTORNEY TO BE NOTICED

Defendant Medical Director Robert Bannister

represented by Stephen D. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clark G Leslie (See above for address) ATTORNEY TO BE NOTICED

Janet E Traut (See above for address) TERMINATED: 08/24/2009

Michon A. Martin (See above for address) ATTORNEY TO BE NOTICED

William J Geddes (See above for address) ATTORNEY TO BE NOTICED

Defendant E.K. McDaniel

represented by Stephen D. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clark G Leslie (See above for address) ATTORNEY TO BE NOTICED

Janet E Traut (See above for address) TERMINATED: 08/24/2009

Michon A. Martin (See above for address) ATTORNEY TO BE NOTICED

William J Geddes (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/06/2008

# Docket Text
1 COMPLAINT Class Action Relief Sought against Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto (Filing fee $ 350 receipt number 09780000000000818768), filed by David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Certificate of Interested Parties due by 3/16/2008.

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 12 of 29

03/06/2008 03/06/2008 03/07/2008 03/07/2008
03/10/2008 03/10/2008 03/11/2008 03/12/2008 03/13/2008 03/14/2008
03/24/2008

Proof of service due by 7/4/2008. (Attachments: # 1 Civil Cover Sheet, # 2 Certificate of Interested Parties, # 3 Summons Bannister Summons, # 4 Summons Masto Summons, # 5 Summons Gibbons Summons, # 6 Summons McDaniel Summons, # 7 Summons Miller Summons, # 8 Summons Skolnik Summons)(Rowland, Lee) Modified on 3/7/2008 to reflect Summons issued on 3/7/2008 (PM). (Entered: 03/06/2008)
Case assigned to District Judge Brian E. Sandoval and Magistrate Judge Valerie P. Cooke. (WJ) (Entered: 03/06/2008)
2 ORDER OF RECUSAL. This action is referred to Chief Judge Roger L. Hunt for reassignment. Signed by Judge Brian Sandoval. (C. Lipparelli 03/06/2008)(Copies have been distributed pursuant to the NEF − CL) (Entered: 03/06/2008)
3 Summons Issued as to Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 as to Gibbons, # 2 as to Masto, # 3 as to McDaniel, # 4 as to Miller, # 5 as to Skolnik)(PM) (Entered: 03/07/2008)
4 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Roger L. Hunt, on 3/7/2008. IT IS ORDERED that this case is reassigned to Judge Edward C. Reed, Jr. for all further proceedings. Judge Brian E. Sandoval no longer assigned to case. All further documents must bear the correct case number 3:08−cv−115−ECR−VPC. (no image attached) (Copies have been distributed pursuant to the NEF − BLG) (Entered: 03/07/2008)
5 PROPOSED SUMMONS to be issued revised as to Gibbons and McDaniel, filed by Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Summons McDaniel Summons)(Rowland, Lee) Modified on 3/10/2008 to reflect Summons Issued on 3/10/2008 (PM). (Entered: 03/10/2008)
6 Summons Issued as to E.K. MCDANIEL, James Gibbons re: 5 Proposed Summons. (Attachments: # 1 McDaniel Summons Revised)(PM) (Entered: 03/10/2008)
7 MOTION to Certify Class by Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Responses due by 3/29/2008. (Attachments: # 1 Memorandum in Support of Class Certification)(Rowland, Lee) (Entered: 03/11/2008)
8 CERTIFICATE OF SERVICE for Complaint, Motion for Class Cert and Memorandum in Support of Class Cert by Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington re 7 MOTION to Certify Class. Served on Janet Traut, counsel for NDOC (Rowland, Lee) (Entered: 03/12/2008)
9 MINUTE ORDER IN CHAMBERS of the Honorable Judge Edward C. Reed, Jr, on 3/12/2008. This case is referred to the Chief Judge for reassignment to another Judge. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 03/13/2008)
10 MINUTE ORDER IN CHAMBERS of the Honorable Chief Judge Roger L. Hunt, on 3/14/2008. By Deputy Clerk: wayne julian. IT IS ORDERED that this case is reassigned to District Judge Larry R. Hicks for all further proceedings. District Judge Edward C. Reed, Jr no longer assigned to case. All further documents must bear the correct case number 3:08−cv−0115−LRH−VPC. (no image attached) (Copies have been distributed pursuant to the NEF − WJ) (Entered: 03/14/2008)
11 SUMMONS Returned Executed by David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington re 3 Summons Issued. Howard Skolnik served on 3/11/2008, answer due 3/31/2008; Robert Bannister served on 3/11/2008, answer due 3/31/2008; E.K. MCDANIEL served on 3/11/2008, answer due 3/31/2008; James Gibbons served on 3/11/2008, answer due 3/31/2008; Ross Miller served on 3/11/2008, answer due 3/31/2008; Catherine Cortez Masto served on 3/11/2008, answer due 3/31/2008. (Attachments: # 1 Summons Returned Executed − Miller, # 2 Summons Returned Executed −

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 13 of 29

03/28/2008 04/01/2008 04/02/2008
04/16/2008 04/16/2008 04/16/2008 04/16/2008 04/18/2008 04/18/2008 04/18/2008 05/15/2008

Skolnik, # 3 Summons Returned Executed − Bannister, # 4 Summons Returned Executed − McDaniel, # 5 Summons Returned Executed − Gibbons)(Rowland, Lee) (Entered: 03/24/2008)
12 STIPULATION re 1 Complaint,,, 7 MOTION to Certify Class ; by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Lichtenstein, Allen) (Entered: 03/28/2008)
13 NOTICE of Appearance by attorney Janet E Traut on behalf of Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. NOTICE OF APPEARANCE (Traut, Janet) (Entered: 04/01/2008)
14 MINUTE ORDER IN CHAMBERS of the Honorable Judge Larry R. Hicks, on 4/2/2008, approving 12 parties' Stipulation for extension of time for Defendants to file responsive pleadings to Plaintiffs' 1 Complaint and 7 Plaintiffs' MOTION for Class Certification. Defendants' shall have until 05/15/2008 to file responsive pleadings. The parties also stipulated that during the interim no named Plaintiff in this case will be moved from the Ely State Prison but for cause. (Copies have been distributed pursuant to the NEF − SL) (Entered: 04/02/2008)
15 AMENDED COMPLAINT against Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, filed by David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Removes parties. Proof of service due by 8/14/2008.(Rowland, Lee) (Entered: 04/16/2008)
16 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Amy Fettig and DESIGNATION of Local Counsel Lee Rowland (Filing fee $ 175 receipt number 09780000000000856016) by Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Motion ripe 4/16/2008. (Rowland, Lee) (Entered: 04/16/2008)
17 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Stephen Hanlon and DESIGNATION of Local Counsel Lee Rowland (Filing fee $ 175 receipt number 09780000000000856029) by Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Motion ripe 4/16/2008. (Rowland, Lee) (Entered: 04/16/2008)
18 VERIFIED PETITION for Permission to Practice Pro Hac Vice by Margeret Winter and DESIGNATION of Local Counsel Lee Rowland (Filing fee $ 175 receipt number 09780000000000856035) by Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Motion ripe 4/16/2008. (Rowland, Lee) (Entered: 04/16/2008)
19 ORDER GRANTING 16 Verified Petition for Permission to Practice Pro Hac Vice for attorney Amy Fettig , and approving Lee Rowland , Designation of Local Counsel. Signed by Judge Larry R. Hicks on 4/18/08. (Copies have been distributed pursuant to the NEF − KO) Modified on 4/21/2008 to correct file date(KO). (Entered: 04/21/2008)
20 ORDER GRANTING 17 Verified Petition for Permission to Practice Pro Hac Vice for attorney, Stephen F. Hanlon , and approving, Lee B. Rowland for Designation of Local Counsel. Signed by Judge Larry R. Hicks on 4/18/08. (Copies have been distributed pursuant to the NEF − KO) (Entered: 04/21/2008)
21 ORDER GRANTING 18 Verified Petition for Permission to Practice Pro Hac Vice for attorney, Margaret Winter , and approving Lee Rowland for Designation of Local Counsel. Signed by Judge Larry R. Hicks on 4/18/08. (Copies have been distributed pursuant to the NEF − KO) (Entered: 04/21/2008)
22 ANSWER to 15 Amended Complaint, ANSWER TO CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL filed by Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto.(Traut, Janet) (Entered: 05/15/2008)

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 14 of 29

05/15/2008 05/16/2008 05/29/2008 10/24/2008 10/28/2008 12/10/2008 01/07/2009 01/09/2009
01/13/2009 02/11/2009

23 MOTION to SEVER and RESPONSE to 7 MOTION to Certify Class, filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. OPPOSITION TO MOTION FOR CLASS CERTIFICATION AND MOTION TO SEVER Replies due by 5/29/2008. (Traut, Janet) Modified on 5/16/2008 to activate motion status. (BLG). (Entered: 05/15/2008)
24 NOTICE PURSUANT TO LOCAL RULE IB 2−2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO 85 Notice of Availability, Consent, and Order of Reference − Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website − link. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (KL) (Entered: 05/16/2008)
25 REPLY to Response to 23 MOTION to Sever ; filed by Plaintiff David Robert Riker. Reply Memo of Points &Authorities in Further Support of Plaintiffs' Mot. for Class Cert. and Opposition to Defs.' Mtn to Sever (Attachments: # 1 Declaration Decl. of A. Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 05/29/2008)
26 Joint MOTION to Extend Time regarding discovery/non dispositive matter by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. Motion ripe 10/24/2008. (Rowland, Lee) (Entered: 10/24/2008)
27 ORDER granting 26 parties' Joint Motion to Extend Time to file a proposed Scheduling Order. The parties shall file a proposed Scheduling Order within 30 days of the court's order re 7 MOTION to Certify Class. See order re specifics. Signed by Judge Larry R. Hicks on 10/27/08. (Copies have been distributed pursuant to the NEF − SL) (Entered: 10/28/2008)
28 MINUTE ORDER IN CHAMBERS of the Honorable Judge Larry R. Hicks on 12/10/2008. By Deputy Clerk: Rosemarie Miller. Oral argument on plaintiffs' Motion to Certify Class 7 and defendants' Motion to Sever 23 is scheduled on January 9, 2009 at 10:00 a.m. in Reno Courtroom 5 before Judge Larry R. Hicks. Each side shall be allotted one hour for argument. All parties have been notified of, and are in agreement with, the date and time of the hearing. (no image attached) (Copies have been distributed by NEF − RM) (Entered: 12/10/2008)
29 NOTICE by Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington re 7 MOTION to Certify Class. Notice of Supplemental Authorities in Support of Plaintiffs' Motion for Class Certification (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 01/07/2009)
30 MINUTES OF PROCEEDINGS − Motion Hearing held on 1/9/2009 before Judge Larry R. Hicks. Crtrm Administrator: Rosemarie Miller; Pla Counsel: Amy Fettig and Lee Rowland; Def Counsel: Janet Traut; Court Reporter/FTR #: Margaret Griener; Time of Hearing: 10:03 a.m. − 11:29 a.m.; Courtroom: 5. Court convenes. Oral argument is presented on plaintiffs' Motion to Certify Class 7 and defendants' Motion to Sever 23 . The motions stand submitted. Court adjourns. (no image attached) (Copies have been distributed by NEF − RM) (Entered: 01/09/2009)
31 ORDER identifying additional issues requiring further briefing by the parties re 7 Plaintiffs' MOTION to Certify Class pursuant to 01/09/2009 hearing. See order re specifics. Plaintiffs are granted 30 days to file an opening brief and a proposed Rule 23(c)(1)(B) Order. Defendants are granted 20 days to respond and Plaintiffs are granted 10 days to file a reply. ( Opening brief due by 2/12/2009.) Signed by Judge Larry R. Hicks on 1/13/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 01/13/2009)
32 SUPPLEMENT to 7 MOTION to Certify Class ; by Plaintiff David Robert Riker. (Attachments: # 1 Declaration Decl. of A. Fettig Pt 1 of 4, # 2 Declaration Decl. of A. Fettig Pt 2 of 4, # 3 Declaration Decl. of A. Fettig Pt 3 of 4, # 4 Declaration Decl. of A. Fettig Pt 4 of 4, # 5 Declaration Decl. of M. Winter, # 6 Declaration

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 15 of 29

03/03/2009 03/04/2009 03/17/2009
03/18/2009 03/20/2009 03/24/2009 03/27/2009 03/31/2009
04/23/2009 04/30/2009

Decl. of A. Lichtenstein, # 7 Declaration Decl. of F. Forsman, # 8 Declaration Decl. of S. Hanlon, # 9 Declaration Decl. of D. Riker, # 10 Declaration Decl. of R. Libby, # 11 Declaration Decl. of J. Hosmer, # 12 Declaration Decl. of M. Whittington, # 13 Proposed Order [Proposed] Order, # 14 Certificate of Service)(Fettig, Amy) (Entered: 02/11/2009)
33 STIPULATION re 31 Order,,, Set/Reset Deadlines,, ; STIPULATION AND ORDER TO ENLARGE TIME FOR RESPONSE TO SUPPLEMENTAL BRIEF FOR CLASS CERTIFICATION by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Traut, Janet) (Entered: 03/03/2009)
34 ORDER APPROVING 33 parties' Stipulation for two−week extension for defendants to file and serve their response to 32 supplemental brief re class certification. (Answering brief due by 3/17/2009.) Signed by Judge Larry R. Hicks on 3/4/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 03/04/2009)
35 STIPULATION re 31 Order,,, Set/Reset Deadlines,, 32 Supplement,, ; STIPULATION AND ORDER TO ENLARGE TIME FOR RESPONSE TO SUPPLEMENTAL BRIEF FOR CLASS CERTIFICATION (Second Request) by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Traut, Janet) (Entered: 03/17/2009)
36 ORDER approving 35 parties' Stipulation for a 3−day extension of time for Defendants to file their response to 32 Supplemental brief re class certification. NO FURTHER EXTENSIONS WILL BE GRANTED. ( Answering brief due by 3/20/2009.) Signed by Judge Larry R. Hicks on 3/18/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 03/18/2009)
37 RESPONSE to 7 MOTION to Certify Class, filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Supplemental Opposition to Class Certification Replies due by 4/3/2009. (Attachments: # 1 Exhibit Exhibits A−C)(Traut, Janet) (Entered: 03/20/2009)
38 ORDER re any reply by Plaintiffs to 37 Defendants' Supplemental Brief in Opposition to Class Certification is due on or before Friday, 3/27/2009. Signed by Judge Larry R. Hicks on 3/24/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 03/24/2009)
39 REPLY to Response to 7 MOTION to Certify Class ; filed by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Supp Reply to Defs Opp to Class Cert. [Dkt #37] (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 03/27/2009)
40 ORDER granting 7 Plaintiffs' Motion to Certify Class and denying as moot 23 Defendants' Motion to Sever. IT IS FURTHER ORDERED that the parties shall submit a proposed notice within 30 days that includes the following matters: (1) nature of the action; (2) definition of the class certified; (3) class claims, and (4) that a class member may enter an appearance through an attorney if the member so desires. See order re specifics. ( Notice of Compliance is due by 4/30/2009.) Signed by Judge Larry R. Hicks on 3/31/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 03/31/2009)
41 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 4/23/2009. By Deputy Clerk: LGM. A Rule 16 Case Management Conference is set for 5/19/2009 09:30 AM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. The parties shall jointly file the case mangement report no later than Tuesday, May 12, 2009. See the attached order for specifications. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 04/23/2009)
42 STIPULATION re 40 Order on Motion to Sever,,, Order on Motion to Certify Class,,,,,, Set/Reset Deadlines,, ; Joint Proposed Class Notice by Defendants

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 16 of 29

05/05/2009 05/12/2009 05/18/2009 05/19/2009
05/19/2009 05/19/2009 05/26/2009
06/22/2009 06/22/2009 06/24/2009

Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Proposed Order Draft Class Notice, # 2 Certificate of Service Stipulation CoS)(Rowland, Lee) (Entered: 04/30/2009)
43 ORDER APPROVING 42 parties' Stipulated Class Notice. Signed by Judge Larry R. Hicks on 5/5/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 05/05/2009)
44 STIPULATION re 41 Minute Order Setting Hearing, ; Discovery Plan and Scheduling Order by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 05/12/2009)
45 NOTICE of Corrected Image/Document re 43 Order by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto, Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Service of corrected image is attached). (Attachments: # 1 Attachment "A", # 2 Corrected Image − Attachment "A")(Traut, Janet) (Entered: 05/18/2009)
46 MINUTES OF PROCEEDINGS − Rule 16 Case Management Conference held on 5/19/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Janet Traut; Court Reporter/FTR #: 9:32:29 − 9:43:31; Time of Hearing: 9:32 a.m.; Courtroom: 1; The Court addresses the parties regarding the purpose of this hearing. The Court and the parties discuss various issues concerning the management of this case. The Court approves and signs in open court, the parties' stipulated discovery plan and scheduling order 44 . Counsel is directed to contact deputy court clerk, Lisa Mann at (775)686−5653 no later than Wednesday, May 27, 2009 to schedule monthly case management conferences in this case through the close of discovery. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 05/19/2009)
47 SCHEDULING ORDER re 44 Stipulated Discovery Plan and Scheduling Order. Discovery due by 2/10/2010 and Dispositive Motions due by 3/12/2010. Signed by Magistrate Judge Valerie P. Cooke on 5/19/09. (Copies have been distributed pursuant to the NEF − KO) (Entered: 05/19/2009)
48 ORDER approving 45 Notice of Corrected Image/Document re 43 Order. Signed by Judge Larry R. Hicks on 5/19/09. (Copies have been distributed pursuant to the NEF − SL) (Entered: 05/19/2009)
49 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 5/26/2009. By Deputy Clerk: LGM. Pursuant to this Court's order (#46), IT IS ORDERED that monthly case management conferences are scheduled as follows: 6/25/2009 10:30 AM, 7/31/2009 09:00 AM, 8/27/2009 09:30 AM, 9/24/2009 09:30 AM, 10/29/2009 09:30 AM, 11/23/2009 09:00 AM, 12/18/2009 09:00 AM, 1/28/2010 09:30 AM, and 2/25/2010 09:30 AM all in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. The parties shall file status reports no later than three (3) business days prior to each case management conference. If there are no disputes for the Court's consideration, the parties are directed to file a stipulation to vacate any case management conference. IT IS SO ORDERED.(no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 05/26/2009)
50 Monthly STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Exhibit Ex 1 − Decl of A. Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 06/22/2009)
51 STATUS REPORT by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Traut, Janet) (Entered: 06/22/2009)
52 STIPULATION Regarding Access to and Confidentiality of Medical Records by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 17 of 29

06/25/2009
06/25/2009 07/08/2009 07/10/2009 07/13/2009 07/16/2009 07/16/2009 07/16/2009 07/28/2009 07/28/2009 07/28/2009 07/31/2009

Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 06/24/2009)
53 MINUTES OF PROCEEDINGS − Case Management Conference held on 6/25/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Janet Traut; Court Reporter/FTR #: 10:38:15 − 10:45:59; Time of Hearing: 10:38 a.m.; Courtroom: 1; The Court addresses the parties regarding the purpose of this hearing. The Court signs in open court the parties' stipulation regarding access to and confidentiality of medical records. Ms. Traut addresses the Court and counsel regarding concerns concerning responses to plaintiffs' written discovery. The Court advises counsel if they are unable to resolve Ms. Traut's concerns regarding written discovery, they are directed to outline such dispute in their discovery status report for the July 31, 2009 case management conference. Court adjourns. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 06/25/2009)
54 PROTECTIVE ORDER. Stip/Order re access to and confidentiality of medical records. Signed by Magistrate Judge Valerie P. Cooke on 06/25/09. (Copies have been distributed pursuant to the NEF − LG) (Entered: 06/26/2009)
55 NOTICE of Appearance by attorney Margaret A McLetchie on behalf of Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (McLetchie, Margaret) (Entered: 07/08/2009)
56 NOTICE of Appearance by attorney Stephen D. Quinn on behalf of Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Notice of Appearance and Notice of Change of Lead Attorney (Quinn, Stephen) (Entered: 07/10/2009)
57 NOTICE of Appearance by attorney William J Geddes on behalf of Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (NOTICE OF APPEARANCE by Deputy Attorney General William J. Geddes on Behalf of Defendants.) (Geddes, William) (Entered: 07/13/2009)
58 NOTICE of Appearance by attorney Michon A. Martin on behalf of Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Martin, Michon) (Entered: 07/16/2009)
59 NOTICE of Appearance by attorney Clark G Leslie on behalf of Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Leslie, Clark) (Entered: 07/16/2009)
60 ERRATA to 58 Notice of Appearance ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Martin, Michon) (Entered: 07/16/2009)
61 STATUS REPORT by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit Exhibits A and B)(Quinn, Stephen) (Entered: 07/28/2009)
62 STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Declaration Exhibit 1, # 2 Declaration Exhibit 2)(Fettig, Amy) (Entered: 07/28/2009)
63 CERTIFICATE OF SERVICE for Status Report by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington re 62 Status Report. (Fettig, Amy) (Entered: 07/28/2009)
64 MINUTES OF PROCEEDINGS − Case Management Conference held on 7/31/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Stephen Quinn, William Geddes, Clark Leslie, and Michon Martin; Court Reporter/FTR #: 9:08:31 − 10:02:22; Time of Hearing: 9:08 a.m.; Courtroom: 1; The Court and the parties discuss the parties' status reports. The Court finds it necessary to review the recording of the case management conference held before this Court on June 25,

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 18 of 29

08/04/2009 08/04/2009
08/05/2009 08/07/2009 08/11/2009 08/11/2009 08/11/2009 08/11/2009 08/13/2009

2009. The parties are directed to meet and confer and determine what issues are outstanding, how they propose to proceed with such outstanding issues, and file a joint or separate discovery status report no later than 5:00 PM P.D.T. on Thursday, August 11, 2009. A Discovery Status Conference is set for 8/13/2009 02:00 PM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. See the attached order for specifications. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 08/04/2009)
65 MOTION to Amend/Correct 64 Miscellaneous Hearing,,,,. Mtn to Clarify Minute Order by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Responses due by 8/22/2009. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 08/04/2009)
66 TRANSCRIPT of Proceedings, 64 Miscellaneous Hearing, held on 07/31/09, before Magistrate Judge Valerie P. Cooke. Court Reporter/Transcriber: Donna Davidson, 775−329−0132. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/25/2009. Redacted Transcript Deadline set for 9/4/2009. Release of Transcript Restriction set for 11/2/2009. (DD) (Entered: 08/04/2009)
67 OBJECTION to 64 Miscellaneous Hearing,,,, ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit A and B)(Leslie, Clark) (Entered: 08/05/2009)
68 MOTION for Leave to File Additional Interrogatories by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Responses due by 8/25/2009. (Leslie, Clark) (Entered: 08/07/2009)
69 MOTION to Seal Declaration in Support of Defendants Motion for Reconsideration by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Motion ripe 8/11/2009. (Leslie, Clark) (Entered: 08/11/2009)
70 STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Exhibit Decl. of A. Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 08/11/2009)
71 MOTION Reconsideration of Notice to Class Members and Objectionable Discovery by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Responses due by 8/29/2009. (Attachments: # 1 Declaration C. G. Leslie, # 2 Exhibit part 1, # 3 Exhibit part 2)(Leslie, Clark) (Entered: 08/11/2009)
73 NOTICE by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto re 71 MOTION Reconsideration of Notice to Class Members and Objectionable Discovery, 69 MOTION to Seal Declaration in Support of Defendants Motion for Reconsideration. Of Filing In Camera (Leslie, Clark) (Entered: 08/11/2009)
74 MINUTES OF PROCEEDINGS − Discovery Status Conference held on 8/13/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Stephen Quinn, Clark Leslie, William Geddes, and Michon Martin; Court Reporter/FTR #: 2:03:33 − 3:03:39; Time of Hearing: 2:03 p.m.; Courtroom: 1; The Court and the parties discuss the pending issues in this action. Defendants shall file points and authorities to justify why the declaration of Ms. Traut shall remain as an in camera document, or file a notice of non−opposition that the declaration shall be unsealed no later than 5:00 P.M. on Wednesday, August 19, 2009. Plaintiffs shall have until Wednesday, August 26, 2009 to file any response. Plaintiff's shall have until Thursday, August 20, 2009 to file an opposition to defendants' motion for reconsideration 71 and defendants shall have until Wednesday, August 26, 2009 to reply. See the attached order for specifications. (Copies have been distributed

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 19 of 29

08/19/2009 08/20/2009 08/21/2009 08/24/2009 08/24/2009 08/24/2009 08/24/2009 08/26/2009 08/26/2009 08/27/2009
09/02/2009

pursuant to the NEF − LGM) (Entered: 08/13/2009)
75 MEMORANDUM filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto re 69 MOTION to Seal Declaration in Support of Defendants Motion for Reconsideration. Points and Authorities in Support of #69 (Leslie, Clark) (Entered: 08/19/2009)
76 RESPONSE to 71 MOTION Reconsideration of Notice to Class Members and Objectionable Discovery, filed by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Replies due by 9/3/2009. (Attachments: # 1 Exhibit DECL A FETTIG, # 2 Exhibit DECL G BERNTH, # 3 Exhibit DECL S VASSALLO, # 4 Certificate of Service)(Fettig, Amy) (Entered: 08/20/2009)
77 NOTICE by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto Notice of Withdrawal of Janet E. Traut as Attorney of Record for Defendants (Quinn, Stephen) (Entered: 08/21/2009)
78 RESPONSE to 68 MOTION for Leave to File Additional Interrogatories, filed by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Replies due by 9/7/2009. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 08/24/2009)
79 Monthly STATUS REPORT August 24, 2009 Case Managment Conference Report by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Quinn, Stephen) (Entered: 08/24/2009)
80 Monthly STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Ricky David Sechrest, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Rowland, Lee) (Entered: 08/24/2009)
83 ORDER re 77 Notice (Other) filed by Ross Miller, Catherine Cortez Masto, Robert Bannister, E.K. MCDANIEL, Howard Skolnik, James Gibbons terminated counsel Traut. Signed by Magistrate Judge Valerie P. Cooke on 08/24/09. (Copies have been distributed pursuant to the NEF − LG) (Entered: 08/26/2009)
81 RESPONSE to 69 MOTION to Seal Declaration in Support of Defendants Motion for Reconsideration, filed by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Replies due by 9/9/2009. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 08/26/2009)
82 REPLY to Response to 71 MOTION Reconsideration of Notice to Class Members and Objectionable Discovery ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit Dec of Leslie and Exhibits I, J, and K)(Leslie, Clark) (Entered: 08/26/2009)
86 MINUTES OF PROCEEDINGS − Case Management Conference held on 8/27/2009 before Magistrate Judge Valerie P. Cooke and District Judge Larry R. Hicks. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Stephen Quinn; Court Reporter/FTR #: 9:39:00 − 10:17:58 and 10:27:28 − 10:36:37; Time of Hearing: 9:39 a.m.; Courtroom: 1; The Court finds that the site visit scheduled to commence on August 31, 2009 will not take place. Instead, counsel are directed to discuss the issues concerning the site visit, develop a protocol, and to the extent this causes counsel to reconsider any pending discovery motions, advise the Court of such in their case management reports for the next case management conference. The Court further directs counsel to discuss a revised discovery plan and scheduling order in anticipation of the September 24, 2009 case management conference. See the attached order for specifications. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 09/09/2009)
84 REPLY to Response to 69 MOTION to Seal Declaration in Support of Defendants Motion for Reconsideration ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 20 of 29

09/02/2009 09/21/2009 09/22/2009 09/23/2009 09/23/2009 09/23/2009
09/23/2009
09/24/2009
09/24/2009

Masto. (Leslie, Clark) (Entered: 09/02/2009)
85 REPLY to Response to 68 MOTION for Leave to File Additional Interrogatories ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit A)(Leslie, Clark) (Entered: 09/02/2009)
87 STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Declaration A. Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 09/21/2009)
88 STATUS REPORT Case Management Conference Report by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit A)(Quinn, Stephen) (Entered: 09/22/2009)
89 Supplemental STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 09/23/2009)
90 RESPONSE to 89 Status Report ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit A)(Leslie, Clark) (Entered: 09/23/2009)
91 MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement) by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Responses due by 10/11/2009. (Attachments: # 1 Exhibit D−MTN 001 − NDOC Unauthorized Notice to Inmate Burt, # 2 Exhibit D−MTN 004−021 − Declaration of Greg Cox (with Attached Exhs))(Geddes, William) (Entered: 09/23/2009)
92 MOTION for Sanctions (Defendants' Motion for Sanctions Regarding the Dissemination of Confidential Documents and Information to NDOC Inmates) by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Responses due by 10/11/2009. (Attachments: # 1 Exhibit D−MTN 001 − NDOC Unauthorized Notice to Inmate Burt, # 2 Declaration D−MTN 004−021 − Declaration of Greg Cox (with attached exhibits))(Geddes, William) Modified on 9/24/2009 to reflect duplicate PDF of 91 . (BLG). (Entered: 09/23/2009)
93 NOTICE by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto re 92 MOTION for Sanctions (Defendants' Motion for Sanctions Regarding the Dissemination of Confidential Documents and Information to NDOC Inmates) MOTION for Sanctions (Defendants' Motion for Sanctions Regarding the Dissemination of Confidential Documents and Information to NDOC Inmates) MOTION for Sanctions (Defendants' Motion for Sanctions Regarding the Dissemination of Confidential Documents and Information to NDOC Inmates). (Defendants' Notice of Withdrawal of Motion for Sanctions (Docket No. 092).) (Geddes, William) (Entered: 09/24/2009)
94 MINUTES OF PROCEEDINGS − Case Management Conference held on 9/24/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Clark Leslie, William Geddes, and Michon Martin; Court Reporter/FTR #: 9:39:43 − 10:41:04; Time of Hearing: 9:39 a.m.; Courtroom: 1; The Court advises that counsel shall conduct themselves with professionlism and civility and that nothing less will be tolerated. Defendants' counsel is cautioned to consider whether to proceed with motions 91 and 92 . The Court notes which items shall be the subject of a forthcoming written order. See the attached order for specifications. The Court and counsel discuss the parties' case management reports. With respect to plainitffs' counsels communications and meetings with inmate plaintiffs, counsel are directed to file briefs no later than 5:00 p.m. on Monday, October 5, 2009. Counsel are further directed to meet and confer and file a joint or separate proposal proposing a protocol regarding suggestions counsel have made during this hearing no later than 5:00 p.m. on Monday, October 5, 2009. With respect to alleged violations of

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 21 of 29

09/28/2009 09/29/2009 09/30/2009
10/01/2009 10/05/2009 10/05/2009 10/09/2009 10/14/2009

attorney−client privilege: inmate mail, plaintiffs shall file points and authorities concerning this issue no later than Monday, October 5, 2009, defendants shall respond no later than Tuesday, October 13, 2009, and the Court will consider the papers. Defendants' motion for leave to file additional interrogatories 68 is WITHDRAWN. See the attached order for specifications. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 09/28/2009)
95 MINUTE ORDER withdrawn 92 Motion for Sanctions. Signed by Magistrate Judge Valerie P. Cooke on 09/28/09. (Copies have been distributed pursuant to the NEF − LG) (Entered: 09/29/2009)
96 MOTION to Submit "Burt Letter" Under Seal in Support of Motion to Enforce Confidentiality Agreement [#91] re 91 MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement) MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement) by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Responses due by 10/17/2009. (Geddes, William) (Entered: 09/29/2009)
97 ORDER: IT IS ORDERED that defendants' 71 motion for reconsideration is DENIED as to all issues, EXCEPT the interview/questioning of correctional staff or any employee or agent of defendants. The site tour of ESP by plaintiffs' counsel and experts shall go forward pursuant to the 47 Stipulated Discovery Plan/Scheduling Order, subject to modifications to paragraph 13. FURTHER ORDERED that the parties shall meet and confer to develop a protocol for interviews and/or questioning of correctional staff and for the presence of defense counsel, as specified above. Such protocol shall be submitted to Magis. Judge Cooke, concurrent with the filing of the parties' case management reports, and shall be discussed at the next case management conference. FURTHER ORDERED that defendants' 69 motion to seal the Traut declaration is GRANTED . The Clerk of Court shall keep the 72 Declaration of Janet Traut under seal. See Order for specifics. Signed by Judge Larry R. Hicks on 09/30/09. (Copies have been distributed pursuant to the NEF − MLC) Modified on 9/30/2009 to correct space in docket entry. (MLC). (Entered: 09/30/2009)
98 NOTICE by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto re 94 Order on Motion,,,,,,, Miscellaneous Hearing,,,,,,. JOINT PROPOSAL PURSUANT TO COURT ORDER ENTERED SEPTEMBER 24, 2009 (Quinn, Stephen) (Entered: 10/01/2009)
99 RESPONSE to 94 Order on Motion,,,,,,, Miscellaneous Hearing,,,,,, ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit A &B)(Leslie, Clark) (Entered: 10/05/2009)
100 MEMORANDUM Regarding Legal Mail and Visits filed by Plaintiffs David Robert Riker, Roger Libby, Terrence Brothers, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Declaration Declaration of Margaret A. McLetchie, # 2 Exhibit Exhibit 1 to McLetchie Declaration, # 3 Exhibit Exhibit 2 to McLetchie Declaration, # 4 Declaration Declaration of Amy Fettig)(McLetchie, Margaret) (Entered: 10/05/2009)
101 RESPONSE to 91 MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement) MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement), filed by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Replies due by 10/23/2009. (Attachments: # 1 Declaration A. Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 10/09/2009)
102 RESPONSE to 100 Memorandum, ; (Defendants' Brief Regarding Legal Mail (In Response to Plaintiff's Brief Regarding Legal Mail of Docket No. 100)) filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit AR 722, # 2 Exhibit LCC OP 722)(Geddes, William) (Entered: 10/14/2009)

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 22 of 29

10/14/2009
10/23/2009 10/23/2009 10/23/2009
10/26/2009 10/26/2009 10/29/2009 10/29/2009 10/29/2009
10/29/2009

103 First MOTION to Extend Time regarding discovery/non dispositive matter (Defendants' Motion for 1−Day Enlargement of Time to File Defendants' Brief Regarding Legal Mail (In Response to Plaintiff's Brief Regarding Legal Mail of Docket No. 100) (Nunc Pro Tunc)) re 102 Response − Other, by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. Motion ripe 10/14/2009. (Attachments: # 1 Exhibit Notice of Electronic Filing)(Geddes, William) (Entered: 10/14/2009)
104 ORDER granting 103 Motion for one−day extension of time to file defendants' brief regarding legal mail 102 . Signed by Magistrate Judge Valerie P. Cooke on 10/23/09. (Copies have been distributed pursuant to the NEF − DN) (Entered: 10/23/2009)
105 STATUS REPORT Defendants' October Case Status Report by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Quinn, Stephen) (Entered: 10/23/2009)
106 REPLY to Response to 91 MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement) MOTION Motion to Enforce Confidentiality Agreement re 54 Protective Order (Defendants' Motion to Enforce Confidentiality Agreement) ; filed by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Defendants' Reply to Plaintiff's Opposition to Defendants' Motion to Enforce Confidentiality Agreement) (Geddes, William) (Entered: 10/24/2009)
107 Joint UNOPPOSED MOTION Revised Scheduling Order (first request) by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. Motion ripe 10/26/2009. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 10/26/2009)
108 STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Declaration A. Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 10/26/2009)
109 ORDER RE: 65 Motion to Amend/Correct. Plaintiffs move the Court to consider the recordings of both the 53 06/25/09 status hearing and the 46 05/19/09 case management conference. IT IS SO ORDERED. Signed by Magistrate Judge Valerie P. Cooke on 10/29/09. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 10/29/2009)
110 ORDER RE: JOINT PROPOSAL Pursuant to 94 Court Order entered 09/24/2009 by the parties. IT IS SO ORDERED. Signed by Magistrate Judge Valerie P. Cooke on 10/29/09. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 10/29/2009)
111 ORDER approving 107 Joint Motion to Revise Scheduling Order. Amending pleadings/adding parties due by 01/08/2010; Plaintiffs' expert disclosures due by 03/15/2010; Defendants' expert disclosures due by 04/14/2010; Rebuttal experts due by 05/14/2010; Discovery due by 7/13/2010; Dispositive Motions due by 8/12/2010. IT IS SO ORDERED. Signed by Magistrate Judge Valerie P. Cooke on 10/29/09. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 10/29/2009)
113 MINUTES OF PROCEEDINGS − Case Management/Motions Hearing held on 10/29/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Michon Martin, Stephen Quinn, and Clark Leslie; Court Reporter/FTR #: 9:35:43 − 10:44:43 and 11:02:02 − 11:30:37; Time of Hearing: 9:35 a.m.; Courtroom: 1; The Court and the parties discuss various pending issues. Counsel are directed to file a stipulated proposed plan for the Ely site visit or, alternatively, submit separate versions outlining their respective concerns by no later than Friday, November 6, 2009. A Status Conference is set for 11/9/2009 11:00 AM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. Defendants' motion 91 is DENIED. Counsel shall meet and confer concerning the issue of inmate visits with attorneys, private investigators, and paralegals. If counsel are unable to resolve this matter, they shall indicate such in their November case management report for the

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 23 of 29

11/02/2009 11/06/2009 11/06/2009 11/06/2009
11/18/2009 11/18/2009 11/19/2009 11/23/2009
12/15/2009
01/13/2010 01/15/2010

November 23, 2009 case management conference. To the extent plaintiffs' brief 100 is a motion; such motion is DENIED as moot. See the attached order for specifications. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 11/06/2009)
112 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 10/29/2009. IT IS ORDERED, Defendants' 96 motion to submit "Burt letter" under seal is DENIED as moot. (Copies have been distributed pursuant to the NEF − KO) (Entered: 11/03/2009)
114 STIPULATION re: staff interview protocol by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 11/06/2009)
115 ORDER ON STIPULATION re 114 Stipulation re: Protocol for Interviews of Ely State Prison Staff. IT IS SO ORDERED. (See Order for specifics) Signed by Magistrate Judge Valerie P. Cooke on 11/06/09. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 11/06/2009)
116 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 11/6/2009. By Deputy Clerk: LGM. In light of the Court's order approving the parties' stipulated protocol for interviews of Ely State Prison staff 115 , IT IS ORDERED that the status conference set for Monday, November 9, 2009 at 11:00 A.M. is VACATED. Counsel have been telephonically notified. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 11/06/2009)
117 STATUS REPORT by Plaintiffs David Robert Riker, Roger Libby, Jeffrey Scott Hosmer, Mark Whittington. (Attachments: # 1 Exhibit Declaration of A Fettig, # 2 Certificate of Service)(Fettig, Amy) (Entered: 11/18/2009)
118 STATUS REPORT by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Attachments: # 1 Exhibit A and B)(Quinn, Stephen) (Entered: 11/18/2009)
119 Supplemental STATUS REPORT by Defendants Howard Skolnik, Robert Bannister, E.K. MCDANIEL, James Gibbons, Ross Miller, Catherine Cortez Masto. (Geddes, William) (Entered: 11/19/2009)
120 MINUTES OF PROCEEDINGS − Case Management Conference held on 11/23/2009 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Stephen Quinn; Court Reporter/FTR #: 9:04:41 − 9:27:39; Time of Hearing: 9:04 a.m.; Courtroom: 1; The Court and counsel discuss the parties' case management reports. The Case Management Conference currently set for 12/18/2009 at 9:00 AM is VACATED. Counsel shall contact the deputy court clerk to reschedule the December conference for a date and time in January 2010. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 12/01/2009)
121 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 12/15/2009. By Deputy Clerk: LGM. At the November case management conference the Court vacated the December case management conference and directed that counsel contact the deputy court clerk to reschedule that conference for a date and time in January 2010 120 . The Court previously set a case management conference for Thursday, January 28, 2010 at 9:30 AM 49 ; therefore, an additional case management conference in January is not necessary at this time. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 12/15/2009)
122 Joint MOTION to Stay Discovery &Scheduling Order by Plaintiffs Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Mark Whittington. Motion ripe 1/13/2010. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 01/13/2010)
123 ORDER. IT IS ORDERED, all discovery and the outstanding deadlines of the Scheduling Order in this case are stayed until January 28, 2010. The parties shall inform this Court of the status of their current settlement negotiations and a

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 24 of 29

01/25/2010 01/28/2010
02/22/2010 02/22/2010 02/24/2010 02/25/2010
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proposed date by which settlement negotiations are expected to be concluded at the next status conference in this case currently scheduled for January 28, 2010. Signed by Magistrate Judge Valerie P. Cooke on 1/15/2010. (Copies have been distributed pursuant to the NEF − KO) (Entered: 01/19/2010)
124 Joint STATUS REPORT by Plaintiffs Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 01/25/2010)
125 MINUTES OF PROCEEDINGS − Case Management Conference held on 1/28/2010 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Michon Martin, William Geddes, and Stephen Quinn; Court Reporter/FTR #: 9:30:43 − 9:38:56; Time of Hearing: 9:30 a.m.; Courtroom: 1; The Court addresses the parties regarding the purpose of this hearing. The parties advise the Court they are currently conducting settlement negotiations and request 90 days to continue the process. IT IS ORDERED that discovery is STAYED for an additional 60 days until Monday, March 29, 2010. Counsel shall report on the status of settlement negotiations in their case management reports for the February 25, 2010 case management conference. The Court advises counsel if it can be of any assistance, it is amenable to scheduling a settlement conference. The Court further advises that depending on the progress of settlement, the Court will consider revisiting an extension of the discovery plan and scheduling order. Court adjourns. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 02/10/2010)
126 STATUS REPORT by Plaintiffs Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 02/22/2010)
127 STATUS REPORT by Defendants Robert Bannister, James Gibbons, E.K. MCDANIEL, Catherine Cortez Masto, Ross Miller, Howard Skolnik. (Martin, Michon) Modified on 2/23/2010 links added to 49 &125 . (BLG). (Entered: 02/22/2010)
128 UN−FILED &RETURNED LETTER from Jeremy A. Crozier #77906 dtd 2/21/2010. (DRM) Modified on 2/26/2010 (MLC) to reflect: ORIGINAL LETTER RETURNED TO PLAINTIFF CROZIER in compliance w/Order 130 . Modified on 3/1/2010 to reflect unfiled, and PDF removed. (BLG). (Entered: 02/25/2010)
129 MINUTES OF PROCEEDINGS − Case Management Conference held on 2/25/2010 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Michon Martin; Court Reporter/FTR #: 9:35:12 − 9:50:56; Time of Hearing: 9:35 a.m.; Courtroom: 1; The Court addresses the parties regarding the purpose of this hearing. The Court and counsel discuss the parties' status reports. The stay of discovery is continued to April 28, 2010. Counsel shall file a status report no later than Monday, March 22, 2010. The Court advises it shall not schedule a case management conference in March unless counsel make such a request. A Case Management Conference is set for 4/28/2010 at 09:00 AM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. The Court advises counsel it continues to remain available to conduct a settlement conference, if necessary. Court adjourns. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 02/25/2010)
130 ORDER. IT IS ORDERED that the Clerk SHALL UNFILE the letter from inmate Jeremy A. Crozier 128 filed 02/24/2010. The Clerk SHALL RETURN the letter to inmate Crozier, UNFILED. The letter shall bear the Clerk's stamp RECEIVED on 02/24/2010. FURTHER ORDERED that class member plaintiffs SHALL proceed by and through their counsel of record. FURTHER ORDERED that class member plaintiffs SHALL NOT submit pro se styled letters or other documents to this Court, either addressed to the Clerk or to an individual Judge of this Court, unless otherwise specifically directed by this Court. Failure to obey this instruction will result in sanctions on the individual class members. FURTHER ORDERED that any further letters or documents submitted by class members plaintiffs, rather than their counsel, SHALL NOT BE FILED in this action. Any such

Case: 3:08-cv-115 As of: 10/16/2014 09:38 AM PDT 25 of 29

03/22/2010 03/22/2010 03/24/2010
03/29/2010 04/26/2010 04/28/2010
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05/26/2010 06/02/2010 06/10/2010

documents SHALL BE STAMPED "RECEIVED" by the Clerk, but they SHALL NOT BE FILED. The Clerk SHALL RETURN, UNFILED, any such letters or documents to the class member plaintiffs. Signed by Judge Larry R. Hicks on 02/26/2010. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 02/26/2010)
131 STATUS REPORT by Plaintiffs Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 03/22/2010)
132 STATUS REPORT by Defendants Robert Bannister, James Gibbons, E.K. MCDANIEL, Catherine Cortez Masto, Ross Miller, Howard Skolnik. (Martin, Michon) (Entered: 03/22/2010)
133 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 3/24/2010. By Deputy Clerk: LGM. This Court has reviewed plaintiffs' case status report 131 and defendants' case management conference report 132 . Counsel are advised if they wish to have this Court schedule a status conference or a settlement conference they have leave to request a status conference or settlement conference. Counsel are further advised the Court will attempt to accomodate the parties' request, if possible, to schedule the matter during the time period requested. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 03/24/2010)
134 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 3/29/2010. By Deputy Clerk: LGM. Due to a conflict with the Court's calendar, IT IS ORDERED that the Case Management Conference currently set for 4/28/2010 shall commence at 10:30 AM instead of 9:00 AM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 03/29/2010)
135 Joint STATUS REPORT by Plaintiffs Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Mark Whittington. (Attachments: # 1 Certificate of Service)(Fettig, Amy) (Entered: 04/26/2010)
136 MINUTES OF PROCEEDINGS − Case Management Conference held on 4/28/2010 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Amy Fettig and Lee Rowland; Def Counsel: Michon Martin, Stephen Quinn, and William Geddes; Court Reporter/FTR #: 10:30:40 − 10:35:34; Time of Hearing: 10:30 a.m.; Courtroom: 1; Counsel report on the status of settlement negotiations and request to confer with the Court off the record. The Court and counsel meet privately. The Court STAYS the deadlines set forth in the discovery plan and scheduling order until further order of the Court. Counsel are directed to submit to chambers a joint or separate settlement status report by no later than Friday, May 21, 2010. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 04/29/2010)
137 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 5/26/2010. By Deputy Clerk: LGM. A Settlement Conference is set for 6/10/2010 at 10:00 AM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. Counsel are directed to file a joint or separate status report outlining the issues for the Court's consideration by no later than the close of business on Monday, June 7, 2010. See the attached order for specifications. (Copies have been distributed pursuant to the NEF − LGM) (Entered: 05/26/2010)
139 STRICKEN AND RETURNED PER 140 ORDER. LETTER and exhibits from Michael Davitt re mental health care treatment at ESP. (DRM) Modified on 6/2/2010 to reflect stricken and returned. (MLC). (Entered: 06/01/2010)
140 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 6/2/2010. By Deputy Clerk: Lisa Mann. IT IS ORDERED that Michael Davitt's letter dated 05/08/2010 139 shall be STRICKEN AND RETURNED to Mr. Davitt at Ely State Prison. (Copies have been distributed pursuant to the NEF − MLC) (Entered: 06/02/2010)
141 MINUTES OF PROCEEDINGS − Settlement Conference held on 6/10/2010 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla

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Counsel: Lee Rowland and (By telephone) Amy Fettig; Def Counsel: Michon Martin, Stephen Quinn, and William Geddes; Court Reporter/FTR #: None; Time of Hearing: 10:00 a.m.; Courtroom: 1; The Court and the parties confer privately. The parties advise the Court they will continue with settlement negotiations. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 06/10/2010)
142 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 6/29/2010. By Deputy Clerk: LGM. A Telephonic Status Conference is set for 6/29/2010 at 02:00 PM in Reno Courtroom 1 before Magistrate Judge Valerie P. Cooke. Counsel have been telephonically notified.(no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 06/29/2010)
143 MINUTES OF PROCEEDINGS − Telephonic Status Conference held on 6/29/2010 before Magistrate Judge Valerie P. Cooke. Crtrm Administrator: LGM; Pla Counsel: Amy Fettig and Lee Rowland; Def Counsel: Michon Martin, Stephen Quinn, and William Geddes; Court Reporter/FTR #: 2:01:43 − 2:15:24; Time of Hearing: 2:01 p.m.; Courtroom: 1; The Court and counsel discuss the parties continued efforts at settlement. IT IS ORDERED that the recording of this proceeding is SEALED. (no image attached) (Copies have been distributed pursuant to the NEF − LGM) (Entered: 07/02/2010)
144 UNOPPOSED MOTION Approval of Settlement Agreement by Plaintiffs Terrence Brothers, Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Ricky David Sechrest, Mark Whittington. Motion ripe 7/15/2010. (Attachments: # 1 Appendix Appendix A, # 2 Appendix Appendix B, # 3 Proposed Order)(Rowland, Lee) (Entered: 07/15/2010)
145 CERTIFICATE OF SERVICE for Motion for Approval of Settlement Agreement by Plaintiffs Terrence Brothers, Jeffrey Scott Hosmer, Roger Libby, David Robert Riker, Ricky David Sechrest, Mark Whittington re 144 UNOPPOSED MOTION Approval of Settlement Agreement. (Rowland, Lee) (Entered: 07/15/2010)
146 ORDER: The parties Joint Motion to: (1) Approve Form and Manner of Class Notice; (2) Set Date for Class Objections; (3) Set Date for Fairness Hearing; and (4) Set Date for Party Reports to the Court is hereby GRANTED, and, IT IS THEREFORE ORDERED that the Notice attached to the 144 Motion is Approved and shall be given as specified in Sections IV(B), (C) of the proposed Settlement Agreement; and IT IS FURTHER ORDERED, this case is set for a fairness hearing on 10/25/10 at 10:00 A.M. in Courtroom #5 at the Bruce R. Thompson Federal Building and U.S. Courthouse in Reno, Nevada; and IT IS FURTHER ORDERED, class members must file OBJECTIONS to the proposed Settlement Agreement by mail to the Clerk of the Court, with copies to counsel for all parties, no later than 9/13/10 and IT IS FURTHER ORDERED, the date and location of the fairness hearing and the deadline for filing class objections shall be included in the Notice to the Class ORDERED by this Court; and IT IS FINALLY ORDERED that any response to class member objections prepared by the parties in advance no later than 10/15/10. See Order for Specifics. (Image/PDF Attached) Signed by Judge Larry R. Hicks on 7/28/10. (Copies have been distributed pursuant to the NEF − BLG) Modified on 7/28/2010 to add additional text to entry and to include TIME OF THE HEARING − 10:00 A.M. on 10/25/10. NEF−Regenerated. (BLG). (Entered: 07/28/2010)
147 COURT APPROVED: NOTICE OF PROPOSED CLASS ACTION SETTLEMENT Riker v. Gibbons, Case No. 3:08−CV−00115−LRH−VPC (D. Nev.)TO: ALL PRISONERS AT THE ELY STATE PRISON, ELY, NV, THE PURPOSE OF THIS NOTICE IS TO INFORM YOU OF: THE TERMS OF THE PROPOSED SETTLEMENT AGREEMENT; THE REASONS WHY CLASS COUNSEL BELIEVE THAT SETTLEMENT IS IN THE BEST INTERESTS OF THE CLASS; YOUR RIGHT TO OBJECT TO THE SETTLEMENT. (See Attached Notice for Specifics) (IMAGE/PDF ATTACHED) Signed by Judge Larry R. Hicks on 7/28/10. (Copies have been distributed pursuant to the NEF − BLG) (Entered: 07/28/2010)
148 ORDER. IT IS ORDERED that the fairness hearing is set for October 25, 2010, at 10:00 a.m. in Courtroom 5, at the Bruce R. Thompson Federal Building and

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U.S. Courthouse in Reno, NV. Signed by Judge Larry R. Hicks on 8/2/2010. (Copies have been distributed pursuant to the NEF − PM) (Entered: 08/02/2010)
149 OBJECTION re 147 Class action settlement, filed by Class Action Member Plaintiff Michael Allen Richardson. (DRM) (Entered: 08/10/2010)
150 OBJECTION to 147 Class action settlement, filed by Class Action Member Plaintiff Derek Constantino. (DRM) (Entered: 08/10/2010)
151 OBJECTION to 147 Proposed Settlement Agreement, filed by Class Action Member Plaintiff David Owens Hooper. (DRM) (Entered: 08/13/2010)
152 OBJECTION to 147 Proposed Settlement Agreement filed by Class Action Member Plaintiff William Leonard. (MLC) (Entered: 08/13/2010)
153 OBJECTION to 147 Order. Rejection of the "Proposed Settlement Agreement.", filed by Class Action Member Plaintiff, Jeremy A. Crozier. (KO) (Entered: 08/18/2010)
154 OBJECTION to 147 Proposed Class Action Settlement, filed by Class Action Member Plaintiff Kitrich Aaron Powell. (DRM) (Entered: 08/19/2010)
155 OBJECTION to 147 Proposed Class Action Settlement, filed by Class Action Member Plaintiff James D. Ofeldt. (KO) (Entered: 08/20/2010)
156 OBJECTION to 147 Proposed Class Action Settlement, filed by Class Action Member Plaintiff Antonio Doyle. (BLG) (Entered: 08/24/2010)
157 OBJECTION to 147 Order. Objections to Proposed Settlement Agreement, filed by Plaintiff Frank Peck. (KO) (Entered: 08/27/2010)
158 OBJECTION to 147 Order. Objection to Proposed Settlement Agreement, filed by Plaintiff Marritte Funches. (KO) (Entered: 08/27/2010)
159 OBJECTION to 147 Order. Objection to Proposed Settlement, filed by Class Action Member Plaintiff David Phillip Ruffa. (DRM) (Entered: 08/30/2010)
160 OBJECTION to 147 Order. Objection(s) to Proposed Settlement, filed by Class Action Member Plaintiff Said Elmajzoub. (DRM) (Entered: 09/02/2010)
161 NOTICE − Exclusion Notice ( File With Objection ) , by Class Action Member Plaintiff David Owens Hooper. Ref. 151 Objection. (DRM) (Entered: 09/08/2010)
162 STRICKEN PER # 173 ORDER : MOTION − Pro Se, "Sua Sponta" Petition to "Amend" Additional Plaintiff\Prisoner to ACLU's Class Action Civil Suit, by Class Action Plaintiff Michael Steve Cox. Responses due by 10/17/2010. (DRM) Modified on 9/30/2010 to correct file date (DRM). Modified on 10/26/2010 to denote STRICKEN (DRM). (Entered: 09/30/2010)
163 STRICKEN PER # 173 ORDER : MOTION − Petition to"Amend" Addendum To : Pro Se's Sua Sponte Petition to Amend Additional Plaintiff\Prisoner to ACLU's Class Action Civil Suit, by Class Action Member Plaintiff Michael Steve Cox. Responses due by 10/23/2010. (DRM) Modified on 10/26/2010 to denote STRICKEN (DRM). (Entered: 10/07/2010)
164 REQUEST for Transcript of Proceeding, scheduled for October 25, 2010, by Plaintiff Frank M. Peck. Responses due by 10/24/2010. (KO) (Entered: 10/08/2010)
165 NOTICE by Plaintiffs Terrence Brothers, Derek A. Constantino, Michael Steve Cox, Jeremy A. Crozier, Antonio Doyle, Said Elmajzoub, Marritte Funches, David Owens Hooper, Jeffrey Scott Hosmer, William Leonard, Roger Libby, James D. Ofeldt, Frank M. Peck, Kitrich Aaron Powell, Michael Allen Richardson, David Robert Riker, David Phillip Ruffa, Mark Whittington Notice of Withdrawal of Lee Rowland (Rowland, Lee) (Entered: 10/12/2010)
166 MOTION Settlement Approval/Fees re 147 Order,, 148 Order, by Plaintiffs Jeffrey Scott Hosmer, Roger Libby, David Robert Riker. Responses due by 10/31/2010. (Attachments: # 1 Memo of Law, # 2 Proposed Order, # 3 Declaration A. Fettig, #

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4 Certificate of Service)(Fettig, Amy) (Entered: 10/14/2010)
167 STRICKEN PER # 173 ORDER : MOTION − Extraordinary Writ\Petition by Pro Se Sponte\Amended Request by Plaintiff (Per 2nd Addendum to Amend to ACLU's Class Action Suit) on Improved Stationary to "Object\Oppose" in Part "Settlement Proposal" Doc # 147 ). , by Class Action Member Plaintiff Michael Steve Cox. Responses due by 10/31/2010. (DRM) Modified on 10/26/2010 to denote STRICKEN (DRM). (Entered: 10/14/2010)
168 MOTION Approval of Class Action Settlement by Defendants Robert Bannister, James Gibbons, Catherine Cortez Masto, E.K. McDaniel, Ross Miller, Howard Skolnik. Responses due by 11/1/2010. (Martin, Michon) (Entered: 10/15/2010)
169 MEMORANDUM filed by Defendants Robert Bannister, James Gibbons, Catherine Cortez Masto, E.K. McDaniel, Ross Miller, Howard Skolnik re 168 MOTION Approval of Class Action Settlement. (Attachments: # 1 Exhibit A &B)(Martin, Michon) (Entered: 10/15/2010)
170 STRICKEN PER # 173 ORDER : NOTICE to ..Clarify 10−10−10's Affidavit (# 167 ) Error... by Class Action Member Plaintiff Michael Steve Cox. (DRM) Modified on 10/20/2010 to add plaintiff description (DRM). Modified on 10/26/2010 to denote STRICKEN (DRM). (Entered: 10/20/2010)
171 ORDER re 165 Notice re Withdrawal of Attorney Lee B Rowland. ( Lee B. Rowland, Esq. terminated as to all represented Ps ) Signed by Magistrate Judge Valerie P. Cooke on 10/18/2010. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 10/22/2010)
172 MINUTES OF PROCEEDINGS − Hearing re Settlement held on 10/25/2010 before Judge Larry R. Hicks. Crtrm Administrator: Dionna Negrete; Pla Counsel: Amy Fettig; Def Counsel: Stephen Quinn, Michon Martin, and William Geddes; Court Reporter/FTR #: Donna Davidson; Time of Hearing: 10:00 − 10:43 a.m.; Courtroom: 5. Court convenes. Counsel for Plaintiff and Defendants present argument in support of settlement. IT IS ORDERED that the settlement is approved as fair and adequate. The Court will issue a written order. Court adjourns. (no image attached) (Copies have been distributed pursuant to the NEF − DN) (Entered: 10/25/2010)
173 ORDERED that the Clerk of Court SHALL STRIKE the pro se documents filed by inmate Michael Steven Cox, at Docket # 162 , # 163 , # 167 , and # 170 . FURTHER ORD that class member Ps SHALL proceed by and through their counsel of record in this action. FURTHER ORD that class member Ps SHALL NOT submit pro se styled letters or other documents to this Court in this action, either addressed to the Clerk of Court or to an individual Judge of this Court, unless otherwise specifically directed by this Court. Failure to obey this instruction will result in sanctions on the individual class members. Signed by Judge Larry R. Hicks on 10/25/2010. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 10/26/2010)
174 ORDERED that the proposed settlement agreement (Docket #[144−]1) is APPROVED as fair, reasonable, and adequate, pursuant to Fed. R. Civ. P. 23(e). IT IS FURTHER ORDERED that the negotiated attorneys fees and costs in the lump sum amount of $325,000 are APPROVED. Ps' motion for attorneys fees and costs is GRANTED, pursuant to Fed. R. Civ. P. 23(h), Fed. R. Civ. P. 54(d)(2), and Local Rule 54−16. IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT in this action as SETTLED. The Clerk's judgment SHALL INCLUDE the following description of the plaintiff−class members: "The class is defined as all prisoners who are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in Ely, Nevada.". Signed by Judge Larry R. Hicks on 10/27/2010. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 10/28/2010)
175 JUDGMENT − The proposed settlement agreement (Docket #144−1) is APPROVED as fair, reasonable, and adequate, pursuant to Fed. R. Civ. P. 23(e). IT IS FURTHER ORDERED that the negotiated attorneys' fees and costs in the lump sum amount of $325,000.00 are APPROVED. Plaintiffs' motion for attorneys' fees

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and costs is GRANTED, pursuant to Fed. R. Civ. P. 23(h), Fed. R. Civ. P. 54(d)(2), and Local Rule 54−16. IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the class is defined as all prisoners who are now, or in the future will be, in the custody of the Nevada Department of Corrections at Ely State Prison in Ely, Nevada. Signed by Clerk of Court, Lance S. Wilson on 10/28/2010. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 10/28/2010)
176 ORDER DENYING 164 Motion for preparation of a transcript at government expense. Individuals may obtain a transcript of proceedings in this case by tendering the appropriate fees to the court reporter, along a transcript order form, which is available from the Clerk of Court. Signed by Judge Larry R. Hicks on 10/27/2010. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 10/28/2010)
177 Mail Returned as Undeliverable "Refused by Inmate" re 173 Order addressed to Michael Allen Richardson, #62018, at ESP. (DRM) (Entered: 11/09/2010)
178 Mail Returned as Undeliverable re 171 Order addressed to Kitrich Aaron Powell at ESP. ( Document not re−mailed inasmuchas Ps are represented by counsel in this action ) (DRM) (Entered: 11/09/2010)
179 TRANSCRIPT of Proceedings, 172 Miscellaneous Hearing, held on 10/25/10, before Judge Larry R. Hicks. Court Reporter/Transcriber: Donna Davidson, 775−329−0132. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/7/2010. Redacted Transcript Deadline set for 12/17/2010. Release of Transcript Restriction set for 2/14/2011. (DD) (Entered: 11/16/2010)
180 MOTION − PETITION/MOTION for Subpoenas of Records/Witnesses for Evidentiary Hearing by Plaintiff Michael Steve Cox. Responses due by 8/18/2011. (MLC) (Entered: 08/01/2011)
181 MOTION for Hearing − PETITION/MOTION for Evidentiary Hearing Review to Overturn Settlement Proposal 147 Defunct ESP/Max Medical Care/Implementation (Orders)/Appointment of Master's Oversight by Plaintiff Michael Steve Cox. Motion ripe 8/1/2011. (MLC) (Entered: 08/01/2011)
182 ORDER DENYING inmate Steve Cox's ## 180 , 181 Petitions/Motions. IT IS FURTHER ORDERED that inmate Cox SHALL FILE NO FURTHER DOCUMENTS in this closed action. Signed by Judge Larry R. Hicks on 8/16/2011. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 08/17/2011)
183 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 2/22/2013, re return of document. (Attachments: # 1 Letter) (Copies have been distributed pursuant to the NEF − JC) (Entered: 02/22/2013)