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Osterback v. Moore, Expert Report, Fl, Control Unit Conditions, 2003

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
MARK OSTERBACK, et al.

)
)
Plaintiffs,
)
)
v.
)
)
)
)
MICHAEL W. MOORE, et al.,
)
Defendants.
)
)
____________________________________)

Case No. 97-2806-CIV-HUCK
MAGISTRATE JUDGE BROWN

SECOND REPORT OF PROFESSOR CRAIG HANEY

1. I am currently a Professor of Psychology at the University of California
at Santa Cruz. I continue to teach graduate and undergraduate courses at the
University of California and have continued to conduct research on and write
about conditions of confinement in maximum security prisons and the
psychological effects of various forms of incarceration. In much of that work I
have continued to focus specifically on the assessment of the psychological
effects of confinement in so-called “lockup,” punitive segregation, or “supermax”
confinement (in what are variously known as management control, security
housing, high security or, in Florida, “Close Management” units). My educational
background and professional qualifications were summarized in the first Report
that I submitted to this Court. I have appended an updated curriculum vitae to the
Second Report as “Appendix A.”

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Initial Analysis of Close Management Conditions

2. In September, 2001, I filed a Report in the above titled action,
summarizing my observations and opinions about conditions of confinement in a
number of Close Management (or “CM”) units in the Florida Department of
Corrections. That Report also contained my opinions about the psychological
effects of the Close Management conditions on the prisoners who were housed
within them. I also addressed the issue of whether the presence of conditions of
confinement or patterns of treatment or correctional practices at these units
reflected the apparent deliberate indifference of correctional officials.

3. As the basis for that Report in 2001, I conducted tours and interviews at
various Close Management units (specifically, Florida State Prison, Santa Rosa
Correctional Institution, Washington Correctional Institution, and Columbia
Correctional Institution), and evaluated various documents provided to me by
plaintiffs’ counsel in which current and future Florida Department of Corrections
plans and procedures for Close Management units were described. I also reviewed
an extensive number of depositions taken of various Department of Corrections
employees in conjunction with this case.

4. In the course of my tours at these various facilities in 2001, I conducted
structured interviews with a total of 51 randomly selected Close Management
prisoners, asking each prisoner the same series of questions designed to assess
their overall level of psychological trauma and psychopathological symptoms
associated with solitary-like confinement. As I noted in my first Report, the
randomness of the selection meant that I was given an opportunity to interview
and assess the psychological reactions of a representative sample of prisoners

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from the four Close Management units that I had inspected. In addition, because
each prisoner was asked the same set of questions, it was possible to form an
opinion about the dimensions of each prisoner’s level of adjustment and the
nature of the psychological reactions he was experiencing while in Close
Management.

5. The opinions I reached in my first Report were extremely critical of the
conditions of confinement in the Close Management facilities I saw and the
procedures I learned about and encountered in these units. I expressed serious
concerns about the excessive punitiveness of these environments, the numerous
complaints that were voiced by the prisoners whom I interviewed, and the
psychological risks that were being taken subjecting persons to these conditions
and treatment.

6. In that Report, I expressed the conclusions that: prisoners in the Close
Management Units I toured and inspected were being subjected to extremely
harsh treatment and deprived conditions of confinement; long-term exposure to
such treatment and conditions was psychologically painful and potentially
damaging and dangerous; an unusually high number of mentally ill and otherwise
psychologically vulnerable prisoners were confined in the units I toured,
suggesting that the psychological screening and monitoring practices that
presumably were in operation in these facilities had not been effective in
identifying and diverting mentally ill and psychologically vulnerable prisoners;
and that the overall conditions and practices that prevailed lacked penological
justification.

4

7. Further, I expressed the opinion that these problems appeared to be so
systemic and long-standing that many Department of Corrections officials and
employees either knew or should have known about the adverse psychological
consequences of such confinement. Because these Department of Corrections
officials and employees did nothing to ameliorate the damaging effects of these
conditions and adverse forms of treatment, they were deliberately indifferent to
the needs of Close Management prisoners.

Context and Basis of Second Report

8. After these opinions and those of two other plaintiffs’ experts, Dr.
Seymour Halleck and Chase Riveland, were expressed, the parties to the present
case entered into an agreed upon Offer of Judgment effective December 26, 2001.
A two-year period was specified for the implementation of the terms of the Offer
of Judgment.

9. At request of counsel for plaintiffs, I returned to assist in the assessment
of present conditions of confinement. In order to accomplish this task, I visited
Florida State Prison (on October 13, 2003), Union Correctional Institution (on
October 14th), the Lowell Annex (on October 15th), Charlotte Correctional
Institution (on November 12th), and the Santa Rosa Correctional Institution (on
November 14th). A total of 47 randomly selected CM prisoners were interviewed
on these visits.

10. I also reviewed a number of case-related documents provided by
plaintiffs’ counsel. These included: Defendants’ Revised Offer of Judgment
(dated October 2, 2001); Florida Department of Corrections Quarterly

5

Implementation Status Reports (dated January 15, 2002; April 15, 2002; July 15,
2002; October 15, 2002; January 15, 2003; April 15, 2003; July 15, 2003; October
15, 2003); Plaintiffs’ First Monitoring Report (dated November 26, 2002).

11. Unfortunately, many of the documents that have been requested as a
result of my visit, including individual prisoner files, have not yet been provided.
For this reason, the opinions and conclusions I provide below are provisional and
subject to some revision once this additional information is forthcoming and I
have had time to integrate it with my observations and interview data.

Improved Conditions in Close Management Units

12. Defendants have made a number of improvements in the conditions of
confinement in Close Management since I toured these units and interviewed
prisoners in 2001. For example, the overall physical plant at both of the facilities
that I saw then and more recently (FSP and Santa Rosa) appeared to have been
upgraded. This was especially evident at Santa Rosa where, at the time of my last
visit, the facility was in serious disrepair. In addition, although I did not actually
see them, it is my understanding that writing surfaces were installed inside the
cells of at least some CM prisoners, allowing them to more easily write during the
long hours in which they are confined in their cells.

13. Close Management prisoners have now been given access to radios
and most of the ones whom I interviewed have taken advantage of this change in
CM policy. Prisoners also report that they have improved access to canteen (more
items can be purchased by those prisoners who have funds), and there is slightly
more movement within the institution (for example, in the form of weekly group

6

therapy at some facilities, several hours of out-of-cell exercise and, for prisoners
on CM II or above, dayroom access on a limited basis). Although prisoners gave
very mixed reports about the frequency and nature of the contact, CM II prisoners
appear to have minimal access to educational materials. Some CM I and II
prisoners reported that the also were permitted to make telephone calls on a very
limited basis. In addition, CM III prisoners are placed on work lists and can be
assigned to a limited number of jobs within the institution.

14. Because it was originally a maximum security mainline prison, rather
than a CM facility, Florida State Prison lacked adequate individual office space or
larger group meeting or therapy rooms in which to provide services to a
population of prisoners who were segregated on their housing units or tiers. Over
the last two years, these offices and larger meeting rooms have been created by
converting dayroom space on the housing wings. Essentially the same approach
appears to have been followed at the Santa Rosa Correctional Institution, where
dayrooms have been remodeled to provide limited offices and group meeting
rooms in which, presumably, counseling and group therapy sessions can take
place.

Continuing Problems in Close Management Units

15. Although the above mentioned changes represent improvements in
some aspects of the day-to-day living conditions of Close Management prisoners,
many very serious problems remain. Conditions of confinement in these facilities,
and the way in which Close Management prisoners are treated in the Florida CM
units that I recently visited still inflict gratuitous pain and suffering and place

7

prisoners at grave risk of long-term psychological damage. I discuss some of
these continuing, serious problems below.

16. There continue to be large numbers of prisoners who report being on
CM status for many years. Based on what the prisoners have told me, it appears
that many CM terms continue to be far in excess of what can be penologically
justified. It continues to be the case that prisoners are being kept in these units
long past the point in time when psychological deterioration would be expected to
occur. Many prisoners indicated either that they had no idea how or when they
might be released, or that the excessive filing of DRs and unsatisfactory behavior
reports makes it impossible for them to progress out of CM.

17. Despite the very modest improvements in living conditions, the CM
units still appear to be run on a policy of maximizing the deprivation and punitive
control inflicted on prisoners. The lack of meaningful activity for prisoners on
CM I status and, to a somewhat less extent, for those on CM II status, continues to
be a significant problem. With the exception of those prisoners who attend a onehour group counseling session each week (during which they typically are kept in
restraints), Close Management I prisoners are still deprived of any group activity
or meaningful social contact, eat all of their meals alone in their cells, and go for
months, years, or indefinitely without experiencing caring human contact or
touch. CM I prisoners are prohibited from participating in meaningful educational
programming, meaningful vocational training, meaningful work, meaningful
group religious services, or any other meaningful programs in which genuine selfbetterment of any kind reasonably can be expected to result. These facts have not
been appreciably altered since I wrote about them in September, 2001. CM II

8

prisoners have extremely limited, and in my opinion still not nearly adequate,
opportunities to participate in some of these type of activities.

18. Close Management prisoners are prohibited from participating in
meaningful recreational activities while confined in their cells. Although they are
now permitted to have radio—an important improvement, to be sure—they still
are not allowed to converse with one another in a meaningful way. Although
some CM II prisoners reported that they were given limited access to dayrooms
where they could watch television, they were kept in restraints during this time,
and dayroom access was limited to approximately less than four hours a week.
Out-of-cell exercise now takes place three times per week, for about two hours
each time, in small caged-in areas that typically have concrete floors and which
prisoners appropriately refer to as “dog runs” or “kennels” that have little if any
exercise equipment of any kind. However, prisoners reported to me that their
opportunities for dayroom use and outdoor recreation often were skipped.

19. Close Management prisoners still are restricted to three showers per
week. During the few instances in which they are permitted to leave their small
cells, they are placed in restraints (including those times when they are taken to
and from the shower). Close Management prisoners still are prohibited from
visiting the library, from visiting the law library, or from attending regular sick
call within the institution. Thus, they are thus completely dependent upon others
for meeting needs as basic as obtaining reading materials and addressing their
physical and mental health problems and concerns. In addition, Close
Management prisoners still are prohibited from having the sort of material
possessions and personal property that are basic to life in maximum security

9

prisons, such as hobby craft, chess sets, and other things that prisoners use safely
and productively to pass time when confined to their cells.

20. Close Management prisoners still are prohibited from the kind of
normal and frequent visitation that is helpful (and, for some prisoners, necessary)
to maintain healthy social and personal relationships with family members, loved
ones, and friends. Visitation for Close Management prisoners is still infrequent
and, except for CM III inmates, non-contact and, I am told, continue to occur in
some instances in inadequately lit visiting booths in which it is difficult if not
impossible for prisoners and their visitors to even see one another.

21. Finally, the Close Management prisoners I interviewed told me that
they still were prohibited from talking to one another while in their cells,
repeatedly complaining about a policy by which they still are written up (and, in
many instances, continued for additional terms in Close Management) for “talking
on the door” or “talking on the window.” Prisoners report that they still can be
chemically maced or gassed as a result of these talking infractions.

22. Not surprisingly, the CM I and CM II prisoners whom I interviewed
continue to suffer as a result of these extreme levels of deprivation and idleness.
As noted above, except for the few hours a week during which they are taken to
their exercise cages (and, for at least some CM II prisoners, weekly access to
dayrooms and very limited work opportunities), there is no meaningful out-of-cell
activity at all for these prisoners. Thus, the out-of-cell time afforded Florida’s
Close Management I and II prisoners is still extremely low. As one of them put it,
“it’s like you are in hibernation—you sit back and say, ‘I have nothing to live
for.’” Indeed, prisoners in these units still are living in an unnecessarily and

10

psychologically harmful level of emptiness and frustration created by conditions
of extreme deprivation and the lack of virtually any meaningful activity. Although
the property restrictions have been relaxed somewhat, prisoners continue to be
subjected to unreasonable property limits, and to be denied opportunities to
engage in the bare minimum of meaningful in- or out-of-cell programming that
would be necessary for them to remain cognitively alert and intellectually
functional.

23. Prisoners describe a cycle that is common in units like these that are
poorly run and which place no real premium on cycling prisoners out as soon as
possible. Prisoners come into CM for major or even relatively minor offenses but,
because they cannot handle the deprivation and oppressiveness of the
environment and the harshness of the control wielded by the correctional officers,
receive additional, often very minor disciplinary write-ups that keep them in CM.
As on of the put it, “once you get in, you can’t get out.” As another one put it,
“Once you get back here, you get madder and madder. So you get DRs and
unsatisfactories, and that means you can’t get out.” There is no program designed
to teach already “mad” or angry prisoners how not to act to increased anger,
especially not in the face of the deprivation and, from their perspective,
harassment to which they are subjected.

24. Indeed, the indices of psychological trauma and psychopathological
symptoms of extreme isolation that I saw manifested in the prisoners I
interviewed continued to be extremely high and, for some, dangerously severe.
Prisoners continue to suffer under the cruel conditions of their confinement. Like
the prisoners I interviewed in 2001, many of them are acutely aware not only of

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the painfulness of this harsh and deprived existence but also of the adverse
psychological effects that are occurring within them.

25. There continues to be no systematic “decompression” or “step down”
program in the Florida Department of Corrections by which most Close
Management prisoners are properly and adequately prepared for their release from
this form of restrictive custody. Some prisoners in the random sample whom I
interviewed have release dates that will occur in the next year or two. Yet they
remain in the most restrictive Close Management conditions—Level Is— and will
be released directly out of Close Management into the freeworld.

26. This, too, defies commonsense and lacks penological justification. The
Close Management Units in which Florida prisoners are being kept force a variety
of behavioral adaptations and psychological adjustments on them that are difficult
to relinquish and may become extremely dysfunctional, counterproductive, and
potentially harmful once they re-enter free society. Failing to prepare Close
Management prisoners for this profound transition is cruel (in the sense that it
virtually guarantees their failure) and potentially dangerous (in the sense that it
can increase the risk of re-offending with, in at least some instances, a worse level
of offense).

Recently Exacerbated Problems in Close Management

27. In addition to the many unresolved, serious problems summarized
above, there are several problems that appear to have become much more severe
over the two-year period during which Defendants undertook reform of the Close
Management units.

12

28. In my September, 2001 Report, I noted “an unusually consistent and
often highly emotional set of complaints voiced by the prisoners I interviewed
concerning the arbitrary and excessive use of chemical agents on prisoners and
the correspondingly arbitrary and excessive issuing of disciplinary write-ups that
were then used to retain prisoners in Close Management.” This very serious and
penologically unjustified practice has not abated over the last two years. If
anything, the prisoner complaints have intensified greatly.

29. Indeed, prisoners in all of the institutions I visited were preoccupied
with the excessive use of pepper spray. As one of the put it, echoing a sentiment
expressed by many others, “I’m scared to get gassed. They spray a whole can at
you!” Another said, “You are always scared and under pressure.” And: “They
have one solution for every problem—gas.” The prisoners are unanimous that
being gassed is a frightening, traumatizing experience. As one of them put it, “gas
is horrible, it immobilizes you, creates a real feeling of panic.”

30. Prisoners report that these “gassings” occur with very little or no
provocation and are not used to defuse otherwise difficult situations or potential
conflicts. Instead, they report that correctional officers use pepper spray as
punishment—gassing prisoners for unpleasant but non-threatening infractions,
returning to gas them after a conflict has ended, and otherwise using this very
painful and potentially physically damaging form of control to hurt and intimidate
prisoners. Indeed, many prisoners reported that the gassings occur at night, when
the prisoners are sleeping. They noted that they sleep with their clothes on to
protect them from the gassings if they occur.

13

31. In some units, in some institutions, they report that the gassing goes on
more or less on a daily basis. The infractions can be extremely minor: a number of
prisoners reported that gassings occur in response to offenses as trivial as talking,
and in other instances for “nothing at all.” As noted, the gassings occur at all
facilities I visited, including the two designated for psychiatrically vulnerable
prisoners—FSP and Union. Indeed, UCI is supposed to be an enriched treatment
environment for more acutely disturbed prisoners, yet the reports of gassing were
at least as extreme than at the other facilities. Indeed, several prisoners reported
that prisoners were gassed for having declared psychiatric emergencies
(presumably because correctional officers viewed the declarations as
“manipulative”).

32. One prisoner, who reported a long psychiatric history, told the
following story: “In July of this year… I was crying out for help and I knew I
wouldn’t be taken seriously. The guards just jump on prisoners when they ask for
psychiatric help. They might say, ‘Go ahead, want help?’ meaning that you will
get punished, maybe gassed for asking for it. Or they might take you out of your
cell, out of view of the camera, and beat you, telling you, ‘don’t do this on our
shift!’ because they don’t want to be bothered. So I took matters to the extreme
because I knew it was the only way. I set myself on fire.” The outcome of this
extreme cry for help, according to this prisoner, was that he was written up for
arson, put in a strip cell for 21 days, and given no psychiatric assistance.

33. This cruel practice—gassing prisoners who are in need of mental
health services—underscores the second exacerbated problem that now plagues
the Florida Close Management units. Despite the reputation of the Florida State
Prison as perhaps the most brutal and inhumane facility in the state prison system,

14

and despite the various staffing problems that have long plagued this institution,
the Department of Corrections decided to use it as a facility where the state’s most
psychiatrically vulnerable CM prisoners would be housed. As a Correctional
Medical Authority Physical and Mental Health Survey of the Florida State Prison
noted in June, 2002:“A new [mental health] program is being developed for
inmates on close management status, which encompasses the majority of the
inmates served. This program will, when fully operational, provide enhanced
services to inmates who are identified at risk for deterioration in mental status due
to placement in segregated housing.” 1

34. In my opinion, this plan was seriously misguided from the outset.
Prisoners who are “identified at risk for deterioration… due to placement in
segregated housing” need to be moved out of segregated housing, not merely
concentrated in one large segregated housing unit. However, in addition to being
poorly conceived, this plan has been extremely poorly implemented. Mental
health services at FSP appear to be marginal at best. The prisoners I interviewed
there—virtually all of whom appeared to be in need of significant mental health
attention (and on psychotropic medications at the time of their interviews)—
reported only minimal mental health contact. With the exception of no more than
a superficial nod to the very serious mental health needs of the CM prisoners
there, FSP is being run as a very large and very inhumane CM prison that happens
to house an extremely disturbed population of prisoners.

1

The Correctional Medical Authority Physical and Mental Health Survey of Florida State
Prison (dated June 4-7, 2002), p. 3.

15

35. Prisoners at FSP are given access to “group therapy” sessions, which
occur on a weekly basis and typically last for no more than about an hour.
According to the prisoner I interviewed at FSP (and those at other institutions
who had been there), these group meetings typically provide no therapy at all, but
merely an opportunity for isolated prisoners to have some minimal social contact
with other persons. This opportunity for minimal social contact is an experience
whose significance is not to be minimized, but neither is it to be confused with
therapy. Prisoners are kept in restraints during their “group therapy” sessions,
hardly an optimal way to promote rapport, candor, and trust.

36. Indeed, the overwhelming majority of prisoners—who were quite open
about acknowledging their serious mental health needs—complained about the
lack of compassionate, effective care from mental health staff. They reported
things like: “ The mental health department here doesn’t help us—they just fill
out charts.” Individual treatment sessions appear to be rare; obviously very
disturbed prisoners reported being seen on an individual basis on a once a month
or once every two month basis.

37. The use of Union Correctional Institution as a kind of mental health
annex to FSP—“to better address the mental health needs of Florida State Prison
close management inmates who require periodic inpatient mental health
services”2—seems equally problematic. The very fact that this is seen as a costcutting innovation—“ensuring more timely and less costly access to inpatient
care”—suggests that the movement of mentally ill prisoners from FSP to inpatient

2

Florida Department of Corrections Quarterly Implementation Status Reports, dated July
15, 2003, p. 3.

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care and back again is expected to occur on a regular basis. This was born out by
the prisoners I interviewed at both facilities. Indeed, one prisoner characterized it
this way: “It’s like a merry-go-round—FSP, UCI, I can’t tell this difference.
Sometimes I don’t know where I am.”

38. Again, this seriously misconceives the mental health needs of
psychiatrically vulnerable prisoners. These prisoners need to be screened out of
CM confinement entirely. Once identified, their mental health needs must be
adequately addressed, and they need to be transitioned to safer, less stressful
prison environments. There is no justification for recycling them back into the
psychologically assaultive conditions that prevail in CM.

39. The handling of women CM prisoners, all of whom are housed at
Lowell Correctional Institution, further underscores the lack of attention the
Florida Department of Corrections has given to the mental health needs of its CM
prisoners. An extremely high percentage of the women CM prisoners I
interviewed at Lowell CI either reported long psychiatric histories or gave clear
indication of immediate psychiatric problems (or both). Yet these women were
housed under a standard Florida Department of Corrections CM regime, subjected
to extremely deprived and oppressive conditions and treatment, and appeared to
be getting little if any specialized mental health treatment (and certainly none
commensurate with the problems they described). Not surprisingly, many
reported and manifested symptoms of psychological trauma and the adverse
effects of extreme isolated confinement.

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Conclusion

40. Over the two-year period during which Defendants agreed to improve
conditions of confinement for CM prisoners, too little of significance has
changed, too much of the inhumane regime remains intact, and several important
problems appear to have gotten worse. Based on the interviews I conducted in
October and November, 2003, I have concluded that Florida Close Management
Units continue to subject prisoners to extremely deprived, restrictive, and
oppressive living conditions.

41. Prisoners in the Florida CM units I recently visited continue to feel
desperate and hopeless in the face of this mistreatment. Many have come to
believe that there is no possible or realistic way out of their current level of harsh
confinement. As noted, many of them already have spent many years living under
such deprived conditions.

42. Prisoners in these units still lack meaningful opportunities for
programming, are punished for talking, prohibited from congregating with one
another, and visit under such limited conditions that most of them discourage
visitors of any kind (many of whom would be required to travel long distances for
non-contact visits). They continue to be significantly more deprived and
oppressive than those in many other institutions with which I am familiar, and
certainly worse than conditions in one notorious facility that the federal judge
who examined it concluded “may press against the outer bounds of what most
humans can psychologically tolerate.”3 Indeed, in the course of my recent
3

Madrid v. Gomez, supra note 7, at 1267.

18

interviews with a representative group of these CM prisoners, I determined that
many of them manifested symptoms associated with an extremely high level of
psychological trauma and experienced the kind of psychopathological reactions
that are created by extreme forms of isolated confinement.

43. In addition to this widespread isolation-related trauma, the CM units at
FSP and UCI, in particular, house an unusually high percentage of mentally-ill
and psychologically-vulnerable prisoners.4 Although supposedly intended as some
sort of combined “CM treatment facility,” these facilities are glaringly inhumane,
and house predominately prisoners who are uniquely unsuited for such harsh
confinement. FSP was an especially disheartening experience. There are a
remarkably large number of psychiatrically vulnerable prisoners housed in CM
there. But simply concentrating them in one place, and providing them with group
therapy once a week, does not turn an otherwise oppressive and abusive
psychological environment into a “treatment facility.”

44. Moreover, an unusually high percentage of women CM prisoners
housed at Lowell CI appeared to have significant mental health problems. Many
reported extensive psychiatric histories and current mental health needs that were
not being effectively addressed. Their continued placement in CM confinement
cannot be justified in psychological or penological terms. Here, as with the other
psychiatrically vulnerable CM prisoners, this kind of confinement is likely to lead
to long-term perhaps permanent forms of psychological deterioration.

4

I should note that the screening is far from perfect. I encountered several prisoners at
FSP and UCI who did not appear to have psychiatric histories or current psychiatric
problems, and a number of prisoners in the CM units at other facilities who did.

19

45. Even in units supposedly designed to hold psychiatrically vulnerable
prisoners, and certainly in the other CM units I visited, there were widespread
complaints voiced by prisoners about rampant overuse of pepper spraying or
“gassing” for relatively trivial infractions. The gassing appears to be administered
for the purpose of punishment—that is, simply to inflict pain—and, as such, it is a
practice utterly without penological justification.

Completed on December ___, 2003, at Santa Cruz, California.

___________________________________
CRAIG WILLIAM HANEY, Ph.D., J.D.

 

 

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