Fierro v. Smith

• Decision Date: 05 July 2022
• Docket Number: 19-16786
• Citation: Fierro v. Smith, 39 F.4th 640 (9th Cir. 2022)
• Parties: Jose Abel FIERRO, Plaintiff-Appellant, v. Keith SMITH, Security Operations Administrator at Phoenix Division Director's Office; Marlene Coffey; Pruett, D.W.; L. Forester, D.W.; Rose Sanders; Panann Days; Ryan W. Brower, P.A. ; Nash; Zoran Vukcevic, Defendants-Appellees, and Charles L. Ryan ; Greg Fizer, Deputy Warden at Florence Central Unit; Juli Jackson; Phillis Wiggin, Correctional Officer (C.O.) IV / Classification Administrator at Florence Complex; M. Espinoza, C.O. IV/ Grievance Coordinator at Central Unit - Florence; S. Anderson, C.O. IV/ Grievance Coordinator at Central Unit - Florence; M. Stephan, #2360/ C.O. III at Central Unit - Florence; Thomas Charles Horne, Attorney General; Michael Thompson, Medical Doctor at Central Unit - Florence; Ghetts, Nursing Supervisor at Central Unit - Florence Complex; Etta Thurman, Medical Records Librarian/ Custodian at Central Unit - Florence; RICHARD PRATT, Director, Division of Health Services ; Badilla, # 4389/ C.O. III; Michael McCarville, Deputy Warden/ Rast Unit – Lewis Complex; Houze, C.O. II; Molera, C.O. II; Piotrowsky, Sergeant; M. Barrera, Grievance Coordinator/ C.O. IV; Stacey Crabtree; Carey Tucker, Physician Assistant; Morales, Nursing Supervisor; Theodore, G.C./ C.O. IV; B. Rajas, Facility Health Administrator/ Corizon; Merchant, Medical Doctor; Central Office Pain Management Committee, including Doe defendants 1–4; Stark, C.O. III; Miller, N.S. Medical; Elsie Stowell, F.H.A. Corizon; Gene Greeley, F.H.A.; M. Thompson, M.D.; J. Mattos, G.C./ C.O. IV; M. Harvey, F.H.A.; Lundberg, D.W.; Zoran Vukcovic; East ; Quintero; Luen; Malachinski; Rioochi; Shruff; Brown ; Lacrone; Shuster; B. Ochoa, Deputy Warden, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.4th 640

Jose Abel FIERRO, Plaintiff-Appellant,

v. Keith SMITH, Security Operations Administrator at Phoenix Division Director's Office; Marlene Coffey; Pruett, D.W.; L. Forester, D.W.; Rose Sanders; Panann Days; Ryan W. Brower, P.A. ; Nash; Zoran Vukcevic, Defendants-Appellees,andCharles L. Ryan ; Greg Fizer, Deputy Warden at Florence Central Unit; Juli Jackson; Phillis Wiggin, Correctional Officer (C.O.) IV / Classification Administrator at Florence Complex; M. Espinoza, C.O. IV/ Grievance Coordinator at Central Unit - Florence; S. Anderson, C.O. IV/ Grievance Coordinator at Central Unit - Florence; M. Stephan, #2360/ C.O. III at Central Unit - Florence; Thomas Charles Horne, Attorney General; Michael Thompson, Medical Doctor at Central Unit - Florence; Ghetts, Nursing Supervisor at Central Unit - Florence Complex; Etta Thurman, Medical Records Librarian/ Custodian at Central Unit - Florence; RICHARD PRATT, Director, Division of Health Services ; Badilla, # 4389/ C.O. III; Michael McCarville, Deputy Warden/ Rast Unit – Lewis Complex; Houze, C.O. II; Molera, C.O. II; Piotrowsky, Sergeant; M. Barrera, Grievance Coordinator/ C.O. IV; Stacey Crabtree; Carey Tucker, Physician Assistant; Morales, Nursing Supervisor; Theodore, G.C./ C.O. IV; B. Rajas, Facility Health Administrator/ Corizon; Merchant, Medical Doctor; Central Office Pain Management Committee, including Doe defendants 1–4; Stark, C.O. III; Miller, N.S. Medical; Elsie Stowell, F.H.A. Corizon; Gene Greeley, F.H.A.; M. Thompson, M.D.; J. Mattos, G.C./ C.O. IV; M. Harvey, F.H.A.; Lundberg, D.W.; Zoran Vukcovic; East ; Quintero; Luen; Malachinski; Rioochi; Shruff; Brown ; Lacrone; Shuster; B. Ochoa, Deputy Warden, Defendants.

No. 19-16786

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2022 Pasadena, California

Filed July 5, 2022

Jeremy Girton (argued), Meaghan VerGow, and Rachel A. Chung, O'Melveny & Myers LLP, Washington, D.C.; Craig McAllister, O'Melveny & Myers LLP, New York, New York; Melissa C. Cassell, O'Melveny & Myers LLP, San Francisco, California; for Plaintiff-Appellant.

Joseph E. Dylo (argued), Assistant Attorney General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for State Defendants-Appellees.

Patrick Nish Arndt (argued), Nall & Miller LLP, Atlanta, Georgia; J. Scott Conlon, Renaud Cook Drury Mesaros PA, Phoenix, Arizona; for Defendants-Appellees Ryan W. Brower and Zoran Vukcevic.

Before: J. Clifford Wallace and Michelle T. Friedland, Circuit Judges, and Robert S. Lasnik,^* District Judge.

FRIEDLAND, Circuit Judge:

Jose Abel Fierro, a prisoner in his sixties with numerous chronic health conditions, appeals from a judgment following an adverse jury verdict on his claim that six employees of the Arizona Department of Corrections (collectively, "Defendants") violated the Eighth Amendment by failing to protect him from violence by other prisoners. Between 2011 and 2013, Fierro made six requests to be placed into protective custody, insisting that he was at risk of harm because he had received threats from the Border Brothers, a gang active throughout Arizona's prisons. All six times, Defendants denied Fierro's requests for protective custody. After his sixth request was denied, Fierro was physically assaulted in the prison yard by two other prisoners, at least one of whom was a suspected member of the Border Brothers.

Fierro sued under 42 U.S.C. § 1983. After a four-day trial, the district court instructed the jury to "give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison." Fierro argues on appeal that this jury instruction should not have been given and that the jury might not have ruled against him in its absence.¹ We agree. Because the evidence at trial reflected a genuine dispute whether the decisions to deny Fierro's requests for protective custody were made pursuant to a security-based policy, and, if so, whether the decisions were an unnecessary, unjustified, or exaggerated response to security concerns, we hold that this instruction was erroneous. That error may have affected the verdict, so we vacate and remand for a new trial.

I.

A.

Protective custody is the highest form of protection available to Arizona prisoners.

Those in protective custody are removed from the general population and housed only with prisoners granted the same protective custody status.

When an Arizona prisoner requests protective custody, the request triggers a multi-step review procedure. Each step is documented in a protective custody file for that prisoner. Upon receipt of the prisoner's initial request, a shift commander immediately isolates the prisoner in a secure area and interviews him about his need for protection. The deputy warden in charge of the prison unit then assesses whether further investigation is required. If the deputy warden orders additional investigation, a "correctional officer IV" works with a special security unit to review the file, gather additional facts, and complete a report indicating whether certain risk factors are present. The deputy warden reviews this report along with the full file and recommends denial or approval of protective custody. If the deputy warden recommends denial, she may recommend a lesser form of protection, such as transferring the prisoner to another unit or adding a fellow inmate to a "do-not-house-with" list. A protective custody administrator or committee then reviews the file, decides whether protective custody is warranted, and provides a written explanation if the decision differs from the deputy warden's recommendation. The prisoner may appeal that decision to the security operations administrator, who reviews the case and issues a written response.

B.

Fierro made his first request for protective custody in response to a fight with his cellmate, a suspected member of the Border Brothers, at the Lewis-Rast Unit in Buckeye, Arizona. According to Fierro, his problems at that unit began when another inmate came to his cell and divulged that a correctional officer had told several inmates to "keep an eye on" Fierro, leading the inmates to infer that Fierro was a "snitch." Fierro's cellmate accused Fierro of being a "rat," the two got into a fist fight, and Fierro accidentally punched a wall and broke his hand.² Fierro was not forthcoming in his protective custody interview, stating only that "it would be best if he got off the yard." The correctional officer IV determined that Fierro's concern was not gang-related and that his injuries were self-inflicted. The deputy warden recommended an alternative placement in lieu of protective custody, and Fierro was transferred to the Cimarron Unit in Tucson.

Fierro requested protective custody a second time. He reported that he had a scuffle with his new cellmate—a suspected Border Brothers leader—and that, later, unidentified inmates entered his cell, hit him, and took his legal papers and address book. Fierro explained in his protective custody interview that the inmates accused him of being a snitch and that he feared the Border Brothers were targeting him. Fierro's request for protective custody was forwarded to a correctional officer IV, who concluded that none of Fierro's claims were substantiated. The acting deputy warden, Defendant Pannan Days, agreed, concluding that there was no evidence to suggest a gang-related threat and that Fierro had given no reason why he might be perceived as a "snitch." Days recommended an alternative placement and added the cellmate to Fierro's do-not-house-with list. Fierro appealed, but Defendant Keith Smith denied the appeal because, among other reasons, there was no evidence of "a state-wide threat" and Fierro's claims were "self-reported and unsubstantiated." Fierro was then transferred to the Lewis-Morey Unit in Buckeye.

Fierro requested protective custody a third time. He reported that, the day he arrived at the Lewis-Morey Unit, a note was passed under his cell door that told him to "leave the yard or get stuck." Fierro said he believed the note was related to his fight with his former cellmate at the Cimarron Unit and said he feared for his life in the general population. A correctional officer IV documented Fierro's claims and confirmed that Fierro's former cellmate at the Cimarron Unit was indeed a suspected Border Brothers member. This time, Deputy Warden Douglas Schuster reviewed the file and recommended that protective custody be granted. But Defendant Marlene Coffey, the protective custody administrator, concluded that there was no threat against Fierro and overruled Schuster's recommendation. Fierro was subsequently transferred to the Dakota Unit in Yuma.

In his fourth request for protective custody, Fierro reported that he was "told to leave the yard" by the Border Brothers, and that he had overheard one inmate tell another to wait until later to beat Fierro up. Fierro stated that he was being threatened by the gang for having previously requested protective custody. The deputy warden, Defendant Rose Sanders, recommended denial of the request for protective custody because, among other reasons, Fierro had previously made three similar requests and had not been assaulted at the Dakota Unit. Defendant Coffey agreed. Defendant Smith rejected Fierro's subsequent appeal, stating that Fierro's allegations were self-reported and unsubstantiated. Fierro was then transferred to the Kaibab Unit in Winslow.

Fierro made his fifth request for protective custody at the Kaibab Unit, reporting that he had received a note saying, "Now if you wanna fix your problem you're going to have to run with the raza [gang] & put in some work by stabbing and killing whoever we tell you to." A correctional officer IV reported that Fierro said he had had issues with the Border Brothers in the past and that he had thought about taking the offer...