Hooper, et al v. Schriro, et al

Filing 155

ORDER granting 153 Stipulation Allowing Confidential Contact Visit with Petitioner. (see attached PDF for further details). Signed by Senior Judge Stephen M McNamee on 5/14/2015. (ACL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Murray Hooper, Petitioner, 10 11 12 13 No. CV-98-02164-PHX-SMM DEATH PENALTY CASE v. Charles L. Ryan, et al., ORDER Respondents. 14 15 16 17 Pending before the Court is Murray Hooper’s Stipulation for Order Allowing Confidential Contact Visit with Petitioner. (Doc. 153.) Mr. Hooper’s counsel and 18 19 counsel for the Arizona Department of Corrections (“ADOC”) have now stipulated to 20 the terms of the order allowing a confidential contact visit between Mr. Hooper and Dr. 21 Robert Heilbronner, a psychologist. 22 23 Mr. Hooper, through counsel, has requested that ADOC allow Dr. Heilbronner 24 to have a confidential contact visit with Mr. Hooper. Mr. Hooper, a death row inmate, 25 is currently housed in the Browning Unit, a maximum security prison facility located in 26 27 28 the Arizona State Prison Complex, Eyman, in Florence, Arizona. Because of the nature of the prisoners housed in this facility, Browning Unit has a no-contact-visit policy 1 2 absent a court order. The Ninth Circuit has held that ADOC’s non-contact visitation policy at its high security prisons is rationally related to its legitimate penological 3 4 5 6 concerns. Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993) (“The ADOC policy is a reasonable response to the legitimate institutional concerns posed by full contact visitation: prevention of escape, assault, hostage-taking, and the introduction of 7 8 9 10 11 contraband.”). Mr. Hooper, through counsel, acknowledges that ADOC has a legitimate penological interest in requiring that any contact visit be conditioned on following certain security measures. To assist this Court in determining the extent of the visitation/examination, as well as to protect ADOC’s interest in securing its prisons, 12 13 14 15 the limitations on the visit are listed below. IT IS ORDERED that the Stipulation for Order Allowing Confidential Contact Visit with Petitioner is GRANTED. 16 17 18 19 IT IS FURTHER ORDERED that Dr. Robert Heilbronner be permitted to have a confidential contact visit with Mr. Hooper for psychological evaluation under the following terms: 20 21 1. 22 each day. 23 2. Visitation shall take place on June 11, 2015, from 9:00a.m. to 3:00p.m. 24 Mr. Hooper’s counsel affirms that he made advance arrangements with Warden James O’Neil (“the Warden”), Arizona State Prison - Eyman Complex 25 26 27 28 Browning Unit, or his designee, to schedule such visits. 3. Mr. Hooper’s counsel affirms that Warden O’Neil, or his designee has agreed that Dr. Heilbronner is permitted to bring pens and pencils, a notepad, clipboard, -2- 1 2 stopwatch, test manuals, response sheets, cardboard cards, a finger tapping apparatus, grooved pegboard. The Warden, through his staff, may require Dr. Heilbronner to 3 4 5 6 subject all instruments, equipment, manuals and the like to an inspection and inventory prior to and subsequent to any meeting with Mr. Hooper. 4. If requested by Dr. Heilbronner, the Warden, through his staff, shall 7 8 9 10 11 remove handcuffs from Mr. Hooper so that Mr. Hooper may complete certain tests. However, Mr. Hooper shall at all times remain in leg irons. ADOC may require Mr. Hooper to wear a stun belt during the meetings. 5. Both Mr. Hooper and ADOC recognize that Mr. Hooper’s decision not to 12 13 contest ADOC’s practice of using a stun belt on Mr. Hooper is due to the time 14 constraints placed upon Mr. Hooper’s counsel and in no way constitutes a waiver of the 15 “stun belt issue” in any future request for a contact visit in this case or in another case. 16 17 18 19 ADOC’s willingness to stipulate hereto should not be considered a waiver of any aspect of ADOC’s non-contact visitation policy. 6. Dr. Heilbronner will be required to wear all protective gear, including any 20 21 protective vest and/or safety goggles provided by ADOC. Dr. Heilbronner will be 22 allowed to wear a suit jacket over the protective vest. If requested, Dr. Heilbronner 23 shall be allowed to remove the protective vest and safety goggles if, in his opinion, the 24 vest and/or the goggles interfere with the testing and evaluation of Mr. Hooper. 25 26 27 28 7. The meetings between Mr. Hooper and Dr. Heilbronner shall be confidential and take place in a room that allows for privacy. The room in which the meetings take place shall have a door that remains closed during the meeting. The -3- 1 2 room may have windows which allow the Warden, through his staff, to observe the meeting. Dr. Heilbronner shall sit in the chair closest to the door, and Mr. Hooper shall 3 4 5 6 not go between him and the door without permission. The room in which the meetings take place shall have three chairs and a table no larger than three feet in width. 8. Dr. Heilbronner shall be allowed to have physical contact with Mr. 7 8 9 10 11 Hooper as is necessary to conduct testing. 9. Before being allowed the contact visit authorized herein, Dr. Heilbronner shall certify in a written release to ADOC that he has investigated and ascertained the risks to his personal safety associated with the visit as authorized by and under the 12 13 circumstances described in this order; that he agrees to assume those risks; that he 14 releases and holds harmless ADOC, the state of Arizona, and their officers and 15 employees from any claim arising from death or injury associated with the risks 16 17 18 19 assumed. However, such release shall not operate as a release of gross negligence on the part of ADOC. 10. Dr. Heilbronner has submitted his full name, date of birth and social 20 21 22 23 24 security number to ADOC. In the event that he has had a prior arrest or conviction for any felony offense, he will not be permitted into the institution. 11. ADOC’s willingness to stipulate to the contact visit hereto shall not be considered a waiver of any aspect of ADOC’s non-contact visitation policy. 25 26 27 28 IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order to counsel of record; and to Michael Gottfried, Assistant Attorney General, Arizona Department of Corrections, 1275 West Washington, Phoenix, AZ 85007; and to Warden -4- 1 2 James O’Neil, Arizona State Prison, Eyman Prison Complex, Browning Unit, 4374 East Butte Avenue, Florence, Arizona 85232. 3 4 DATED this 14th day of May, 2015. 5 6 Honorable Stephen M. McNamee Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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