776 F.3d 1046 (9th Cir. 2015), 12-16688, Cortez v. Skol

Docket Nº:12-16688
Citation:776 F.3d 1046
Opinion Judge:FRIEDLAND, Circuit Judge:
Party Name:MARTY CORTEZ, a single woman, on her own behalf, and as Personal Representative of the Estate of Philip Anthony Cortez, Plaintiff-Appellant v. BILL SKOL; STATE OF ARIZONA, a body politic, Defendants-Appellees
Attorney:David L. Abney (argued), Knapp & Roberts, Scottsdale, Arizona; John P. Leader, The Leader Law Firm, Tucson, Arizona, for Plaintiff-Appellant. Michael E. Gottfried (argued), Assistant Attorney General; Thomas C. Horne, Arizona Attorney General, Phoenix, Arizona, for Defendants-Appellees.
Judge Panel:Before: Ronald M. Gould, Paul J. Watford, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland.
Case Date:January 26, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Plaintiff filed suit on behalf of her son, Philip Cortez, under 42 U.S.C. 1983, against a corrections officer and the State of Arizona after Cortez was attacked by two other inmates and sustained severe, permanent mental impairment. The court concluded that there are triable issues of material fact related to the officer's awareness of an objectively substantial risk of serious harm where the... (see full summary)

 
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Page 1046

776 F.3d 1046 (9th Cir. 2015)

MARTY CORTEZ, a single woman, on her own behalf, and as Personal Representative of the Estate of Philip Anthony Cortez, Plaintiff-Appellant

v.

BILL SKOL; STATE OF ARIZONA, a body politic, Defendants-Appellees

No. 12-16688

United States Court of Appeals, Ninth Circuit

January 26, 2015

Argued and Submitted, San Francisco, California November 19, 2014

As Corrected January 28, 2015.

Page 1047

Appeal from the United States District Court for the District of Arizona. D.C. No. 4:09-cv-00526-JGZ. Jennifer G. Zipps, District Judge, Presiding.

SUMMARY[*]

Prisoner Civil Rights

The panel reversed the district court's summary judgment in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that Arizona state prison officials failed to protect an inmate from an attack by two other inmates during a prison escort, and remanded.

The panel held that viewed in the light most favorable to plaintiff, there was sufficient evidence that the undermanned escort by one prison guard of three mutually hostile, half-restrained, high-security inmates through an isolated prison passage posed a substantial risk of harm. The panel further held that viewed in the light most favorable to plaintiff, there was sufficient evidence that the escorting officer was subjectively aware of the risk involved and acted with deliberate indifference to the inmate's safety. Because the panel concluded that there were disputed material facts with respect to deliberate indifference, and because Arizona's gross negligence standard was lower than the federal deliberate indifference standard, the panel concluded that there were also disputed material facts with respect to gross negligence.

David L. Abney (argued), Knapp & Roberts, Scottsdale, Arizona; John P. Leader, The Leader Law Firm, Tucson, Arizona, for Plaintiff-Appellant.

Michael E. Gottfried (argued), Assistant Attorney General; Thomas C. Horne, Arizona Attorney General, Phoenix, Arizona, for Defendants-Appellees.

Before: Ronald M. Gould, Paul J. Watford, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Friedland.

OPINION

Page 1048

FRIEDLAND, Circuit Judge:

Contrary to prison policy and the training he provided others, Corrections Officer Bill Skol escorted three mutually hostile, half-restrained, high-security inmates by himself through an isolated prison passage known as " no man's land." Two of the inmates attacked the third, Philip Cortez, and stomped on the back of his head for five minutes as he lay face down and handcuffed on the ground. The attack left Cortez with severe, permanent mental impairment. His mother brought suit on his behalf, alleging a § 1983 claim against Skol and a gross negligence claim against the State of Arizona. The district court granted summary judgment to Defendants. Because there is evidence that creates genuine factual disputes for trial, we reverse.

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I. Background

We begin with some foundational facts that are not in dispute.

In 2007, Bill Skol was a visitation officer assigned to the Morey Unit of Arizona's Lewis Prison Complex. In that role, he was responsible for escorting inmates between their housing units and the visitation building.

Of the approximately 850 inmates assigned to the Morey Unit, about 160 were housed in its detention unit, which was designed to segregate certain inmates from the broader population. The segregated inmates included those who had recently assaulted other inmates, as well as inmates who were at risk of being assaulted and had sought protective segregation. Everyone in the detention unit was classified as a " Level 5" inmate, the highest security designation in the Arizona prison system.

When detention unit inmates had visitors, a written prison policy instructed that they be restrained in belly chains1 and leg irons while being moved to the visitation building. To prevent contact with general population inmates, officers led them to visitation through a back-alley area called " no man's land" --a dirt path with many pebbles, rocks, and crevices. Escorts in no man's land occurred outside the view of cameras and non-escorting officers.

On November 16, 2007, officers applied belly chains, but not leg irons, to detention unit inmates Philip Cortez, Juan Cruz, and Steven Lavender to prepare them for visitation. Skol and another officer, Roger Smith, picked up the inmates from the detention unit, escorted them to the visitation building, and placed them in the " back cage" --an enclosure that holds inmates who are not allowed physical contact with their visitors. The back cage is separated from the visitation room by a wall with a glass partition, and inmates speak to their visitors through holes in the glass. During the inmates' visits, Skol stationed himself in the visitation room and Smith went to the administrative office.

When the visits were over, Skol set out to escort the three inmates back to the detention unit by himself. Partway through the ten-minute journey across no man's land, Skol reached for his keys to unlock a gate, and, in his peripheral vision, saw Lavender trying to block his view as Cruz kicked Cortez. Cortez fell to the ground as Lavender joined the attack. With Cortez lying face down, Cruz and Lavender kicked and stomped on the back of his head. Skol's incident report states that, after he verbally directed Cruz and Lavender to stop and get on the ground, the following events occurred:

10:30am: Skol called for backup and a medical team.

10:31am: Skol gave another verbal directive to stop and get on the ground, which Cruz and Lavender ignored. Skol repeated the command in a louder voice and threatened to deploy chemical agents. Again, Cruz and Lavender ignored him. 10:32am: Skol deployed a one-second burst of pepper spray to the faces of Cruz and Lavender. Both inmates were unaffected by the spray. 10:33am: Skol deployed another one-second burst of spray. Unaffected, Cruz and Lavender continued stomping on Cortez. 10:34am: Skol deployed a third one-second burst of spray. Backup officers arrived and the assault ended.

Cortez suffered a brain injury that caused severe, permanent mental impairment. He was granted clemency and released from prison on account of his injury,

Page 1050

and he later died of an apparent drug overdose.

Cortez's mother, Marty Cortez, brought suit on her son's behalf, asserting a failure-to-protect claim against Skol pursuant to 42 U.S.C. § 1983 and a gross negligence claim against the State of Arizona.2 Defendants filed a motion for summary judgment, which was first heard by a magistrate judge. The magistrate judge concluded that sufficient evidence supported the claims against Skol and the State of Arizona...

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