Complaint Kelly, Sean

Case 2:09-cv-00824-DGC Document 14 Filed 06/26/09 Page 1 of 12
1 LORONA, STEINER,
DUCAR & HOROWITZ, LTD.
2 3003 North Central Avenue, Suite 1800
Phoenix, Arizona 85012-2909
3 Telephone: (602) 277-3000
Facsimile: (602) 277-7478
4
Jess A. Lorona, #009186
5 Attorneys for Plaintiffs
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF ARIZONA
8
Eileen Kelly, as the Surviving Parent of CASE NO. CV09-824-PHX
9 Sean Desmond Kelly; Donna Ashcraft
as Conservator of Athena Ashcraft,
10 natural daughter of Sean Desmond FIRST AMENDED COMPLAINT
3003 NORTH CENTRAL AVENUE, SUITE 1800
11 Kelly; Lynn Butcher as the

PHOENIX CORPORATE CENTER
PHOENIX, ARIZONA 85012-3909
Representative of the Estate of Sean [Jury Trial Requested]

LORONA, STEINER,
Desmond Kelly,
ATTORNEYS AT LAW
12
(602) 277-3000
13 Plaintiffs,
vs.
14
15 State of Arizona, acting by and through
the Arizona Department of Corrections;
16 Dora B. Schriro, Director of Prisons
for the State of Arizona and John Doe
17 Schriro, husband and wife; Berry
Larson, Warden of Arizona State
18 Prison Complex – Lewis and John Doe
19 Larson, husband and wife; John and
Jane Does I-X,
20
Defendants.
21
22 For their causes of action, Plaintiffs, by and through undersigned counsel,
23 hereby allege as follows:
24
25
1
1 PARTIES AND JURISDICTION

2
1. Plaintiff, EILEEN KELLY, is the surviving mother of decedent Sean
3
Desmond Kelley, who died on June 29, 2008 while in the care, custody, and control of
4
the Arizona Department of Corrections.
5
2. Plaintiff DONNA ASHCRAFT is the natural grandmother and Conservator
6
7 of ATHENA ASHCRAFT, who is the surviving minor daughter of decedent, Sean
8 Desmond Kelly. DONNA ASHCRAFT brings this action on behalf of her
9 granddaughter, ATHENA ASHCRAFT.

10 3. Plaintiff LYNN BUTCHER is the Representative of the Estate of Sean
11
Desmond Kelly and is the natural sister of the decedent. LYNN BUTCHER brings this
LORONA, STEINER,
ATTORNEYS AT LAW
12
action on behalf of Sean Desmond Kelly’s Estate.
(602) 277-3000
13
4. Pursuant to A.R.S. §§ 12-612 and 14-3110, Plaintiffs are authorized to
14
bring this action. Plaintiffs were, at all times relevant to this Complaint, residents of
15
Maricopa County, Arizona.
16
17 5. Defendant, STATE OF ARIZONA (“ADC”), acting by and through the
18 ARIZONA DEPARTMENT OF CORRECTIONS, operates and maintains the Arizona
19 State Prison Complex – Lewis Facility, which is located in Buckeye, Maricopa County,
20 Arizona.
21 6. Defendant, DORA B. SCHRIRO (“Schriro”), is the Director of the Arizona
22
Department of Corrections and upon information and belief, Defendant SCHRIRO and
23
John Doe Schriro are residents of Maricopa County, Arizona. All actions taken by
24
Defendant SCHRIRO were done for the benefit of the marital community.
25
2
1 7. Defendant BERRY LARSON, at all time relevant hereto, is the Warden of
2 the Arizona State Prison Complex – Lewis, and upon information and belief, Defendant
3 LARSON and John Doe LARSON are residents of Maricopa County, Arizona. All
4
actions taken by Defendant LARSON were done for the benefit of the marital
5
community.
6
8. Defendants, JOHN and JANE DOES I-X are individual employees of the
7
Arizona Department of Corrections, individual employees, state actors, or representatives
8
9 of the named Defendants, or other individuals who are or may be individually liable for
10 acts of negligence, but their identities and/or their specific acts of negligence are
11
unknown to Plaintiffs at this time.


LORONA, STEINER,
ATTORNEYS AT LAW
12 9. All actions complained of herein occurred in Maricopa County, Arizona,

(602) 277-3000
13
within the District of Arizona.
14
10. Subject Matter Jurisdiction is proper pursuant to 28 U.S.C. § 1331.
15
11. Defendants are subject to the personal jurisdiction of this Court.
16
12. Pursuant to 28 U.S.C. § 1391, venue is proper in this Court.
17
18 GENERAL ALLEGATIONS
19 13. Plaintiffs incorporate each and every allegation above as if more fully set
20 forth herein.
21 14. On or about November 14, 2001, Sean Kelly began serving a 9-year
22 prison term for possession of dangerous drugs and conspiring to promote prison
23 contraband and was placed in the custody and care of the Arizona Department of
24 Corrections. Sean initially was incarcerated in the Arizona State Prison Complex,
25
3
1 Douglas facility, a correctional institution operated by the Arizona Department of

2 Corrections.
15. On March 30, 2002, Sean requested Protective Segregation at the
3
ASPC-Douglas/Mohave Unit as he had been threatened by another inmate. He was
4
asked to assault/shank another prisoner and was told that if he refused this request, he
5
would be assaulted and his lightning bolt tattoo would be removed by force. The
6 name of the inmate who threatened Sean is unknown to Plaintiffs at this time.
7 16. Sean refused this inmate’s request and as a result, became a target of the
8 inmate’s white supremacist gang, The Aryan Brotherhood, which has members in
9 factions throughout the Arizona state prison system.
10 17. This inmate was placed on Sean’s Do-Not-House-With (“DNHW”) list,

and Sean was placed on the inmate’s DNHW list.

11
18. At the time of Sean’s murder, this inmate was housed at same unit where
LORONA, STEINER,
ATTORNEYS AT LAW
12
Sean was housed, the ASPC-Morey Unit. Upon information and belief, this inmate
(602) 277-3000
13 was one of the two who stabbed Sean to death.

14 19. On May 10, 2002, Sean was placed at ASPC-Yuma/Cheyenne Unit as
15 an alternative to Protective Segregation. Five days later, Sean was assaulted.
16 20. Sean again requested Protective Segregation stating he had been
17 assaulted because of his earlier refusal to carry out the request that was made of him at
the ASPC-Douglas/Mohave Unit. The inmate who assaulted him was also member of
18
the Aryan Brotherhood.
19
21. On June 12, 2002, Sean was transferred to ASPC-Sanfford/Tonto Unit
20
as an alternative to Protective Segregation. Just two days later, Sean requested
21 Protective Status again because he was threatened on the yard by another inmate. This
22 inmate was placed on Sean’s DNHW list, and on July 17, 2002, Sean was transferred
23 to ASPC-Florence/East Unit as an alternative to Protective Segregation.
22. On July 17, 2002, Sean refused to be housed at ASPC-Florence/East
24
and requested Protective Segregation because an Aryan Brotherhood member, whom
25
4
1 he had previous problems with, was housed there. Kelly stated he thought his life
2 would be in danger.
23. His request for PS was denied; however, on August 22, 2002, Sean was
3
transferred to ASPC-Lewis/Barchey Unit as an alternative to Protective Segregation.
4
24. Sean was eventually transferred to a prison out of state, where he had no
5
requests for Protective Segregation and remained there until his July 6, 2007 transfer
6 back into the Arizona State Prison system.
7 25. On April 7, 2008, Sean was transferred to the ASPC-Lewis/Morey Unit,
8 where inmates on his DNHW list were housed.
9 26. On June 29, 2008, a multi-faith religious service was being held on the
10 Red Yard at the Morey Unit. The service concluded and the attending inmates began
returning to their assigned cells.

11
27. The prison was understaffed, and upon information belief the decision to
LORONA, STEINER,
ATTORNEYS AT LAW
12
under staff was made by Defendant SHRIRO and/or Defendant LARSON. There were
(602) 277-3000
13 only three officers available on the Red Yard to escort the inmates to their appropriate
14 cells and ensure the inmates entered the correct housing unit, and no officer was
15 posted at the scanner in front of the building to search for contraband prior to the
16 inmates entering the cell block.
17 28. No officers were available to secure the returning inmates into Housing
Unit 3C/D which was where Sean was housed. The available floor officers were
18
securing inmates in Housing Unit 3A/B and left Sean Kelly’s unit to be secured by the
19
Control Room Officer. The Control Room Officer was the only officer present in
20
Sean’s Housing Unit and was unable to leave the control room to introduce a physical
21 presence in the pods.
22 29. During the process of returning from the multi-faith service, two inmates
23 who were not housed in Housing Unit 3C/D, passed through the unmonitored metal
detector with three metal shanks and entered into Housing Unit 3C/D and into Sean
24
Kelly’s cell.
25
5
1 30. The two inmates, one being a member of the Aryan Brotherhood on
2 Sean’s DNHW list, and the other a member of the Skinhead group, brutally murdered
Sean. Sean was stabbed no less than 116 times.
3
31. Upon information and belief, approximately 19 minutes passed between
4
the time the inmates entered the Housing Unit 3C/D and the time Sean was found
5
dead. No officers noticed that these inmates were in the wrong housing unit until after
6 Sean was stabbed over 116 time and the offenders were on there way out of Housing
7 Unit 3C/D.
8 COUNT ONE
9 CIVIL RIGHTS VIOLATIONS 42 U.S.C. § 1983
10 32. Plaintiff incorporates each and every allegation above as if fully set forth
11
herein.

LORONA, STEINER,
ATTORNEYS AT LAW
12
33. Defendants have a clearly-established constitutional duty to protect
(602) 277-3000
13
inmates in their care and custody from a substantial risk of harm. This duty is based
14
on the cruel and unusual punishments clause of the Eighth Amendment and the due
15
16 process clause of the Fourteenth Amendment.
17 34. As a consequence, prisons are designed to facilitate observation and
18 supervision of inmate behavior and activities, and are equipped to facilitate prompt
19 response to violent behavior. Prison staff is trained, and operational procedures are
20
maintained, to keep inmates under frequent, if not constant, observation and to detect
21
any sign of trouble. In short, prison design, training and procedure are all intended, to
22
the maximum extent possible, to prevent anything from happening in the prison
23
24 without the knowledge of those in charge.
25
6
1 35. Defendants STATE OF ARIZONA, acting by and through the Arizona
2 Department of Corrections, DORA SHIRO, BERRY LARSON and other employees of

3 the Arizona Department of Corrections, violated Sean Kelly’s Eighth Amendment and
4
Fourteenth Amendment right by demonstrating a deliberate indifference to a known,
5
substantial risk of serious harm.
6
36. Defendants knew that Sean Kelly had been threatened and targeted by
7
8 other inmates, in fact, they knew that Sean’s life had been threatened previously by
9 one of the inmates who murdered Sean. Upon information and belief, this particular
10 inmate was on Sean’s Do-Not-House-With list. Yet they allowed this inmate to
11
access a yard that led directly to Sean’s Housing Unit and failed to control and
LORONA, STEINER,
ATTORNEYS AT LAW
12
supervise his movement on the yard.
(602) 277-3000
13
37. Defendants, in direct violation of the Arizona Department of Corrections
14
Policy 701.5 and Yard Security Post Orders, failed to monitor the activities of the
15
16 murderous inmates on the yard.
17 38. Furthermore, in direct violation of the Department policies and Post

18 Orders, Defendants failed to escort these inmates to their appropriate Housing Units
19
thus allowing the murderous inmates to enter Sean Kelly’s Housing Unit. Defendants
20
allowed inmates to pass through metal detectors without security staff present, also in
21
violation of Post Orders.
22
23 39. In violation of Department Policies, Defendants failed to provide the
24 appropriate level of staff needed to follow Post Orders and ensure the safety of Sean
25 Kelly.
7
1 40. Upon information and belief, Defendant SCHRIRO and/or Defendant
2 LARSON intentionally and willfully understaffed the prison with a reckless disregard
3
for the safety of Mr. Kelly and other inmates.
4
41. The policy, actions, and omissions of Defendants STATE OF
5
ARIZONA, acting by and through the Arizona Department of Corrections, DORA
6
SHIRO, BERRY LARSON and other employees of the Arizona Department of
7
8 Corrections, violated Sean Kelly’s Eighth Amendment right to protection from the
9 violence of other prisoners. The constitutional harm to Sean Kelly was caused by the
10 policymakers’ and the actors’ adherence to or failure to follow the then-existing

11
policy.
LORONA, STEINER,
ATTORNEYS AT LAW
12
42. Acting under the color of state law, Defendants STATE OF ARIZONA,
(602) 277-3000
13
acting by and through the Arizona Department of Corrections, DORA SHIRO, BERRY
14
LARSON and other employees of the Arizona Department of Corrections were
15
16 deliberately indifferent and grossly negligent of their responsibility to Sean Kelly,
17 while he remained in the care, custody and control of the Arizona Department of
18 Corrections, including failure to train and failure to supervise ADOC employees to

19
adhere to and follow department policies and procedures regarding inmate safety.
20
43. Defendants also made knowing and intentional decisions to under staff
21
the prison with a conscious disregard and deliberate disregard to the safety of Sean
22
Kelly and other inmates.
23
24 44. This deliberate indifference and gross negligence resulted in the
25 violation of the Sean Kelly’s civil rights, rendering Defendants STATE OF ARIZONA,
8
1 acting by and through the Arizona Department of Corrections, DORA SHIRO, BERRY
2 LARSON and other employees of the Arizona Department of Corrections liable to

3 Plaintiffs under 42 U.S.C. § 1983.
4
COUNT TWO
5
WRONGFUL DEATH
6
45. Plaintiffs incorporate each and every allegation above as if fully set forth
7
herein.
8
9 46. Defendants STATE OF ARIZONA, acting by and through the Arizona
10 Department of Corrections, DORA SHIRO, BERRY LARSON and other employees of

11
the Arizona Department of Corrections, had a duty to protect Sean Kelly from a

LORONA, STEINER,
ATTORNEYS AT LAW
12 substantial risk of serious harm.

(602) 277-3000
13
47. Defendants breached this duty by (1) failing to properly supervise two
14
prisoners that obtained access to Sean Kelly despite the Defendants’ knowledge of the
15
risk they posed to him; (2) Failing to provide the security necessary to prohibit the two
16
prisoners from obtaining access to Sean Kelly; (3) Failing to provide adequate staff and
17
appropriately supervise and train those employees that were responsible for maintaining
18
19 security at the prison; (4) Failing to properly monitor video cameras which are placed in
20 prisoner’s cells and other areas of the prison that allow Defendants to observe the
21 movements of prisoners; (5) Failing to monitor the two other prisoners’ movement within
22 an area in the prison which they were not permitted, thereby allowing them access to
23
Sean; (6) Failing to properly monitor the metal detectors that are placed at the entry of the
24
Housing Units to detect weapons such as the metal shanks used to stab Sean Kelly; (7)
25
9
1 failing to utilize appropriate security measures to determine whether the inmates that
2 killed Sean Kelly had shanks on their persons up to and immediately prior to the time
3
they had access to Sean.
4
48. As a direct and proximate result of Defendants’ negligence, carelessness
5
and recklessness, Sean Kelly died.
6
49. As a result of his death, Sean Kelly, who was forty-one years of age at the
7
8 time of his death, suffered a complete destruction of his capacity to carry on and enjoy
9 life’s activities.
10 50. Sean Kelly left surviving him Plaintiffs Eileen Kelly and Athena Ashcraft,
11
both of whom were dependent on him for support, guidance, comfort, solace, advise,

LORONA, STEINER,
ATTORNEYS AT LAW
12 protection, etc.
(602) 277-3000
13
51. As a result of Sean Kelly’s premature death, Plaintiffs suffered damages.
14
52. As a further result of Sean Kelly’s premature death, Plaintiffs also suffered
15
expenses for his funeral and burial.
16
COUNT THREE
17
18 GROSS NEGLIGENCE
19 53. Plaintiffs incorporate each and every allegation above as it fully set forth
20 herein.
21 54. STATE OF ARIZONA, acting by and through the Arizona Department of

22 Corrections, DORA SHIRO, BERRY LARSON and other employees of the Arizona
23
Department of Corrections, negligently and without reason: (1) failed to properly
24
supervise two prisoners that obtained access to Sean Kelly despite the Defendants’
25
10
1 knowledge of the risk they posed to him; (2) Failed to provide the security necessary to
2 prohibit the two prisoners from obtaining access to Sean Kelly; (3) Failed to provide
3 adequate staff and appropriately supervise and train those employees that were
4
responsible for maintaining security at the prison; (4) Failed to properly monitor video
5
cameras which are placed in prisoner’s cells and other areas of the prison that allow
6
Defendants to observe the movements of prisoners; (5) Failed to monitor the two other
7
prisoners’ movement within an area in the prison which they were not permitted, thereby
8
allowing them access to Sean Kelly; (6) Failing to properly monitor or use metal detectors
9
10 that are placed at the entry of the Housing Units to detect weapons such as the metal
11 shanks used to stab Sean Kelly; (7) failed to utilize appropriate security measures to

LORONA, STEINER,
ATTORNEYS AT LAW
12 determine whether the inmates that killed Sean Kelly had shanks on their persons up
(602) 277-3000
13 to and immediately prior to the time they had access to Sean Kelly.
14
55. The injuries and damages to Sean Kelly and Plaintiffs were caused by the
15
negligence of the STATE OF ARIZONA, acting by and through the Arizona Department
16
of Corrections, DR. DORA SCHRIRO, BERRY LARSON and other employees of the
17
Arizona Department of Corrections.
18
19 WHEREFORE, Plaintiffs pray for Judgment against Defendants as follows:
20 A. For compensatory damages, plus special and incidental damages in such
21 a sum as may be proven at trial;

22
B. For punitive damages in such a sum as may be necessary to punish the
23
Defendants for their wrongful acts in such a sum as may be proven at trial;
24
C. For costs for the suit;
25
11
1 D. For attorneys’ fees, costs, and disbursements; and
2 E. For other such relief as this Court deems just and proper.
3
RESPECTFULLY SUBMITTED this ____ day of ____________, 2009.
4
5 LORONA, STEINER,
6
7
8 BY: /s/ Jess A. Lorona
Jess A. Lorona
9 3003 North Central Avenue, Suite 1800
Phoenix, Arizona 85012-2909
10 Telephone: (602) 277-3000
11 Facsimile: (602) 277-7478

Attorneys for Plaintiffs

LORONA, STEINER,
ATTORNEYS AT LAW
12
(602) 277-3000
13
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Case 2:09-cv-00824-DGC Document 14 Filed 06/26/09 Page 1 of 12

11 Kelly; Lynn Butcher as the

PHOENIX, ARIZONA 85012-3909

Representative of the Estate of Sean [Jury Trial Requested]

23 hereby allege as follows:

1 PARTIES AND JURISDICTION

8 Desmond Kelly. DONNA ASHCRAFT brings this action on behalf of her

9 granddaughter, ATHENA ASHCRAFT.

PHOENIX, ARIZONA 85012-3909

18 ARIZONA DEPARTMENT OF CORRECTIONS, operates and maintains the Arizona

1 7. Defendant BERRY LARSON, at all time relevant hereto, is the Warden of

unknown to Plaintiffs at this time.

PHOENIX, ARIZONA 85012-3909

12 9. All actions complained of herein occurred in Maricopa County, Arizona,

1 Douglas facility, a correctional institution operated by the Arizona Department of

9 factions throughout the Arizona state prison system.

10 17. This inmate was placed on Sean’s Do-Not-House-With (“DNHW”) list,

and Sean was placed on the inmate’s DNHW list.

PHOENIX, ARIZONA 85012-3909

13 was one of the two who stabbed Sean to death.

returning to their assigned cells.

PHOENIX, ARIZONA 85012-3909

PHOENIX, ARIZONA 85012-3909

17 34. As a consequence, prisons are designed to facilitate observation and

1 35. Defendants STATE OF ARIZONA, acting by and through the Arizona

2 Department of Corrections, DORA SHIRO, BERRY LARSON and other employees of

PHOENIX, ARIZONA 85012-3909

17 38. Furthermore, in direct violation of the Department policies and Post

1 40. Upon information and belief, Defendant SCHRIRO and/or Defendant

10 policymakers’ and the actors’ adherence to or failure to follow the then-existing

18 Corrections, including failure to train and failure to supervise ADOC employees to

2 LARSON and other employees of the Arizona Department of Corrections liable to

10 Department of Corrections, DORA SHIRO, BERRY LARSON and other employees of

PHOENIX, ARIZONA 85012-3909

12 substantial risk of serious harm.

PHOENIX, ARIZONA 85012-3909

21 54. STATE OF ARIZONA, acting by and through the Arizona Department of

PHOENIX, ARIZONA 85012-3909

20 A. For compensatory damages, plus special and incidental damages in such

21 a sum as may be proven at trial;

1 D. For attorneys’ fees, costs, and disbursements; and

11 Facsimile: (602) 277-7478

PHOENIX, ARIZONA 85012-3909

Attorneys for Plaintiffs

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