Marty Cortez v. Bill Skol

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTY CORTEZ, a single woman, on No. 12-16688

her own behalf, and as Personal

Representative of the Estate of Philip D.C. No.

Anthony Cortez, 4:09-cv-00526-

Plaintiff-Appellant JGZ

v.

OPINION

BILL SKOL; STATE OF ARIZONA, a

body politic,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted

November 19, 2014—San Francisco, California

Filed January 26, 2015

Before: Ronald M. Gould, Paul J. Watford,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland

2 CORTEZ V. SKOL

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.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CORTEZ V. SKOL 3

COUNSEL

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.

OPINION

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.

I. Background

We begin with some foundational facts that are not in

dispute.

4 CORTEZ V. SKOL

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

chains 1 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

1

Belly chains are handcuffs attached to a chain around the inmate’s

waist.

CORTEZ V. SKOL 5

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.

6 CORTEZ V. SKOL

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, 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. The magistrate concluded that sufficient

evidence supported the claims against Skol and the State of

Arizona, including some that implicated material factual

disputes, and recommended denying the motion. The

district court disagreed and granted summary judgment in

favor of Defendants. This timely appeal followed.

2

Plaintiff’s complaint also includes a separately numbered § 1983

count for punitive damages, but because punitive damages are a remedy

rather than an independent cause of action, we refer to Plaintiff’s

§ 1983 claim in the singular.

CORTEZ V. SKOL 7

II. Standard of Review

We review a grant of summary judgment de novo.

Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013).

“Summary judgment is appropriate only if, taking the

evidence and all reasonable inferences drawn therefrom in

the light most favorable to the non-moving party, there are

no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.” Id. (internal

quotation marks omitted). “An issue of material fact is

genuine if there is sufficient evidence for a reasonable jury

to return a verdict for the non-moving party.” Thomas v.

Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (internal

quotation marks omitted).

III. § 1983 Claim

The Eighth Amendment imposes a duty on prison

officials to protect inmates from violence at the hands of

other inmates. Farmer v. Brennan, 511 U.S. 825, 833

(1994). A prison official violates this duty when two

requirements are met. Id. at 834. First, objectively viewed,

the prison official’s act or omission must cause “a

substantial risk of serious harm.” Id. Second, the official

must be subjectively aware of that risk and act with

“deliberate indifference to inmate health or safety.” Id. at

834, 839–40 (internal quotation marks omitted). In other

words, “the official must both be aware of facts from which

the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.”

Id. at 837. Deliberate indifference is “something more than

mere negligence” but “something less than acts or

omissions for the very purpose of causing harm or with

knowledge that harm will result.” Id. at 835. A prison

official’s deliberate indifference may be established

8 CORTEZ V. SKOL

through an “inference from circumstantial evidence” or

“from the very fact that the risk was obvious.” Id. at 842.

1. Serious Risk

Viewed in the light most favorable to Plaintiff, there is

sufficient evidence that Skol’s escort posed a substantial

risk of serious harm. 3

It is undisputed that the detention unit housed a volatile

mix of prisoners—including inmates who had committed

assaults and inmates who were targets for possible assault.

An investigator for the Arizona Department of Corrections

testified after the incident about why an officer would not

want to escort three detention unit inmates by himself: “It’s

3

Defendants assert that they objected below to various pieces of

evidence. With one exception (regarding Officer Smith’s alleged

hearsay statement to a state investigator, which we discuss below),

Defendants waived these objections by failing to request a ruling on

them in the district court. See Fenton v. Freedman, 748 F.2d 1358,

1360 (9th Cir. 1984) (“The failure of a litigant to request a ruling is a

waiver of the right to raise any issue before this Court concerning

admissibility.”). Defendants also fail to explain the grounds for their

objections in their brief to this court, which is a further basis for waiver.

See Am. Int’l Enters. v. FDIC, 3 F.3d 1263, 1266 n.5 (9th Cir. 1993)

(“Issues raised in the brief that are not supported by argument are

deemed abandoned.”). In a similar vein, Defendants contend that

Plaintiff cannot establish any disputed facts because she failed to

comply with a local rule governing the formatting of her statement of

facts. The district court rejected this argument, and we defer to that

conclusion. See Qualls ex rel. Qualls v. Blue Cross of Cal., Inc.,

22 F.3d 839, 842 n.2 (9th Cir. 1994) (“District courts have broad

discretion to interpret their local rules. Only in rare cases will we

question the exercise of discretion in connection with the application of

the local rules.” (citation and internal quotation marks omitted)).

Defendants also object to Plaintiff’s expert report, but we need not

resolve that objection because we do not rely on the expert report for

any purpose.

CORTEZ V. SKOL 9

common sense. Detention inmates are inmates that don’t

go along with either the programs in regular prison or

there’s other issues, whether they’re in protective custody

or they’re gang members or what . . . they could have just

assaulted somebody. I certainly will not transport three

inmates by myself.”

Testimony by Skol’s colleagues similarly indicated that

one-on-three escorts were dangerous, particularly in no

man’s land. Officer Smith stated in his declaration that,

according to the training he received directly from Skol,

having one officer escort three inmates was not

recommended. 4 Another officer testified that, although

escorts in other areas can be viewed by staff or cameras, no

man’s land is out of view. That officer further explained

that he would not escort three inmates alone in no man’s

land because he would be outnumbered and it would create

a safety issue.

In addition to the general risks of undermanned escorts

of detention unit inmates through no man’s land, the record

contains evidence of dangers specific to Cruz, Lavender,

and Cortez. Skol told Officer Smith after the incident that

“there was a lot [of] talk and harassing words between the

three inmates in the back cage.” Cruz also told an

investigator that he had attacked Cortez for calling him and

Lavender “clowns” and for “running his mouth” about

being a protective custody inmate who did not have to

answer to anyone. One of Skol’s colleagues, Sergeant

Brian Hawthorne, testified that Cortez was a protective

custody inmate and that it was common knowledge among

4

Skol stated in his declaration that he had previously escorted three

inmates by himself without problems. This is something for the jury to

consider at trial.

10 CORTEZ V. SKOL

prison guards that such inmates are targeted for attack by

other prisoners. According to Hawthorne, it was a “rule

within the prison” that protective custody inmates had a

“green light,” meaning “any race, at any time, [other

inmates are] supposed to attack them and take them out.”

Cortez’s status as a protective custody inmate is in dispute,

but between Sergeant Hawthorne’s testimony and Cortez’s

own statement to his attackers that he was a protective

custody inmate, a reasonable jury could find that Cortez

was at least perceived among guards and prisoners as being

in protective custody. This perception of Cortez’s

protective custody status, combined with the animosity

between the inmates arising out of the harassing talk, would

have heightened the risk of Skol’s escort. 5

It is also relevant that the inmates were without leg

restraints. The deputy warden of the Morey Unit testified

at his deposition that, at the time of the attack, a written

prison policy required both upper and lower restraints and

that the inmates involved in the incident “should have been

in both upper and lower restraints.” The prison’s chief of

security at the time of the incident said the same. Skol and

other officers dispute this, saying that, by the time of the

attack, the prison had been safely operating under a newer

directive that instructed against using leg restraints, issued

after an inmate had tripped and injured himself in no man’s

land. But the record provides reason to doubt that such a

directive ever issued. The deputy warden testified that he

tried to locate something about the supposed change,

including the grievance by the injured inmate that

purportedly motivated it, but was unable to find anything.

5

Defendants point to an inmate database record to show that Cortez

was not a protective custody inmate. However, a perception of

Cortez’s protective custody status is relevant to the risk of the transport,

even if not reflected in the prison’s formal records.

CORTEZ V. SKOL 11

Even if Defendants could produce such evidence, however,

the fact that there was a written policy requiring leg irons

supports the notion that there were risks to moving inmates

without them.

Finally, Skol’s unwillingness to physically intervene

once the attack began could demonstrate that he took a

substantial risk. A jury could reasonably conclude that, by

putting himself in a situation in which he was outnumbered,

out of view, and away from backup—and thus

uncomfortable intervening when two inmates attacked a

third—Skol exposed Cortez to a substantial risk of serious

injury.

2. Deliberate Indifference

Viewed in the light most favorable to Plaintiff, there is

sufficient evidence that Skol was subjectively aware of the

risk involved in the escort and acted with deliberate

indifference to Cortez’s safety. Skol insists that he knew

nothing about several of the dangerous aspects of the

escort, but there is sufficient evidence for a jury to

disbelieve him.

First, there is evidence suggesting that Skol knew about

the hostility between the inmates. In his interview with the

state investigator, Officer Smith said that Skol told him that

“there was a lot [of] talk and harassing words between the

three inmates in the back cage.” 6 Although Smith’s later

declaration—prepared in the course of this litigation—

describes his prior statement as “ambiguous” and says that

6

Defendants contend that Smith’s repetition of Skol’s statement to the

investigator is hearsay, but Plaintiff does not need to rely on the

investigator’s account because Smith acknowledged the truth of the

statement in his later declaration.

12 CORTEZ V. SKOL

it should not be interpreted to mean that Skol heard the

harassing talk in real time, a reasonable jury could think

otherwise. Smith does not supply a basis for his assertion

that Skol learned about the harassing talk only after the

attack, and it is seemingly at odds with the manner in which

Skol responded when the investigator asked whether he

was aware of the harassing talk. If Smith’s interpretation

were correct, one might expect Skol to have answered by

saying that he knew about the harassing talk but had

learned about it only after the fact. Instead, Skol told the

investigator that if there was harassing talk, he did not hear

it.

Second, a reasonable jury could conclude that Skol was

aware of Cortez’s protective custody status. Sergeant

Hawthorne testified that he knew Cortez was a protective

custody inmate and that “[w]hoever worked detention unit”

would have known the same. Defendants assert that

Hawthorne’s statement does not pertain to visitation

officers like Skol, but they fail to offer evidence that

officers who regularly escort detention unit inmates cannot

be said to “work” the detention unit. Although Defendants’

interpretation is certainly a plausible one and could be

argued to a jury, it is not compelled by the record, and we

are required to view the evidence in the light most

favorable to Plaintiff. Upon doing so, we conclude that a

reasonable jury could find that Skol knew Cortez was a

protective custody inmate and was therefore aware of a

heightened risk that Cruz and Lavender would attack him

during the escort.

Third, there is evidence that Skol knew that prison

policy required leg restraints when moving detention unit

inmates. Skol testified at his deposition that he was aware

of the written policy, but stressed his understanding that it

applied only to the detention unit, not to visitation, and

CORTEZ V. SKOL 13

required leg irons only when inmates were being

transported by vehicle. Skol’s testimony is at odds with

that of the Morey Unit’s deputy warden and the prison’s

chief of security, both of whom testified that the prison’s

written policy required upper and lower restraints for

visitation escorts. Skol’s admitted awareness of the policy,

combined with the prison administrators’ testimony

regarding its effect, raises a genuine issue as to whether

Skol proceeded with the escort despite knowing that the

inmates were not properly restrained.

Finally, a jury might reasonably question Skol’s

credibility generally. According to Skol’s incident report,

written on the day of the attack, Cruz and Lavender

“instantly dropped to the ground and followed directives”

when backup arrived. Skol reiterated that account at his

deposition and testified that backup officers did not “put

any hands” on Cruz or Lavender. But one of the backup

officers tells a different story. Sergeant Hawthorne

testified that Cruz and Lavender did not instantly drop to

the ground or comply with orders. Rather, Hawthorne said

he had to physically subdue them, first by forcing Cruz

down, and then, as another officer held Cruz down, by

wrestling Lavender to the ground and staying on top of him

until more officers arrived. Similarly, there are

inconsistencies with respect to why Skol embarked on the

escort alone. Skol told the state investigator that he

escorted the inmates by himself because he and Officer

Smith were “trying to ‘hastily’ get things done because

visitation was very busy that day.” Skol’s later

declaration—written in the midst of this litigation—offered

a slightly different motivation for moving the inmates

alone. Instead of saying that visitation was busy, Skol

stated that he was concerned that the inmates would miss

an impending prisoner count in the detention unit and that

14 CORTEZ V. SKOL

failing to have inmates in their housing units during a count

“creates the possibility of a security issue.” Skol further

stated that because Smith had a lot of paperwork to do, the

two of them “agreed” that Skol would do the escort alone.

Smith’s declaration, in contrast, does not mention

paperwork or a prisoner count, and it does not portray

Skol’s solo escort as a joint decision. Rather, it says that

Skol “chose” to escort the inmates by himself because “he

was in a rush to get them back to the [detention unit] to

bring more inmates back to visitation.” A jury might

reasonably conclude from these inconsistencies that Skol is

untrustworthy, and therefore disbelieve his professed

ignorance of the harassing talk, Cortez’s protective status,

and the effect of the leg iron policy.

* * *

In sum, there are triable issues of material fact related

to Skol’s awareness of an objectively substantial risk of

serious harm. 7

7

The district court did not decide whether Skol is entitled to qualified

immunity, and we decline to reach that issue in the first instance. See

Am. President Lines, Ltd. v. Int’l Longshore & Warehouse Union, Ak.

Longshore Div., Unit 60, 721 F.3d 1147, 1157 (9th Cir. 2013) (“It is

the general rule . . . that a federal appellate court does not consider an

issue not passed upon below.” (internal quotation marks omitted));

Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (“[W]e do

not reach qualified immunity because the issue has never been

addressed by the district court.”).

CORTEZ V. SKOL 15

IV. Gross Negligence Claim

We likewise conclude that genuine fact disputes

preclude summary judgment with respect to gross

negligence. 8

Under Arizona law, “[a] party is grossly or wantonly

negligent if he acts or fails to act when he knows or has

reason to know facts which would lead a reasonable person

to realize that his conduct not only creates an unreasonable

risk of bodily harm to others but also involves a high

probability that substantial harm will result.” Walls v. Ariz.

Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct. App.

1991). This standard is less exacting than the federal

deliberate indifference standard. See Braillard v. Maricopa

Cnty., 232 P.3d 1263, 1273 (Ariz. Ct. App. 2010) (relying

on the Eleventh Circuit’s statement that “[a] claim of

deliberate indifference requires proof of more than gross

negligence” (quoting Townsend v. Jefferson Cnty.,

601 F.3d 1152, 1158 (11th Cir. 2010)) (internal quotation

marks omitted)). 9 The State is liable for the actions of its

8

Both parties refer to state procedural law on summary judgment in

connection with the gross negligence claim, but the standard for

summary judgment set forth in Rule 56(a) of the Federal Rules of Civil

Procedure controls. The district court had federal question jurisdiction

over the § 1983 claim and supplemental jurisdiction over the state-law

gross negligence claim, and “a federal court exercising supplemental

jurisdiction over state law claims is bound to apply the law of the forum

state to the same extent as if it were exercising its diversity

jurisdiction.” Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055

n.2 (9th Cir. 2000). Under the Erie doctrine, “federal courts sitting in

diversity must apply the Federal Rules of Civil Procedure.” Knievel v.

ESPN, 393 F.3d 1068, 1073 (9th Cir. 2005).

9

The Arizona Court of Appeals has also cited the Second Circuit’s

observation that deliberate indifference is “closely intertwined” with

gross negligence. Rourk v. State, 821 P.2d 273, 280 (Ariz. Ct. App.

16 CORTEZ V. SKOL

employees in the scope of their employment. See Rourk v.

State, 821 P.2d 273, 275–76, 280 (Ariz. Ct. App. 1991).

Because we have concluded that there are material fact

disputes with respect to deliberate indifference, and

because Arizona’s gross negligence standard is lower than

the federal deliberate indifference standard, we necessarily

conclude that there are also material fact disputes with

respect to gross negligence. Indeed, in addition to being

responsible for Skol’s behavior, the State may also be liable

for the aggregate conduct of other prison staff. See, e.g.,

Armenta v. City of Casa Grande, 71 P.3d 359, 365 (Ariz.

Ct. App. 2003) (discussing whether “the City knew or

should have known” certain facts and whether “the City’s

actions would have led it to realize” a risk); Rourk,

821 P.2d at 275–76, 280 (describing actions of a state

agency that seem to have been taken by multiple employees

and describing what the agency knew or should have

known based on the aggregate actions of those employees).

This means that the State also could be responsible for the

actions of the officers who failed to place leg irons on the

inmates on the day of the attack and for any informal

directive to stop applying leg restraints for escorts through

no man’s land. Summary judgment on Plaintiff’s gross

negligence claim was thus improper.

1991) (citing Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 143 (2d

Cir. 1981)). Rourk is consistent with Braillard because gross

negligence can be both closely intertwined with deliberate indifference

and also a lower standard. Braillard’s statement that gross negligence

requires less proof than deliberate indifference makes sense because

gross negligence merely requires “reason to know” facts that would

lead to recognition of a risk, whereas deliberate indifference demands

actual, subjective awareness.

CORTEZ V. SKOL 17

V. Conclusion

For the reasons discussed above, we REVERSE the

district court’s grant of summary judgment on Plaintiff’s

§ 1983 and gross negligence claims and REMAND for

further proceedings. 10

10

Plaintiff has asked for attorney’s fees under 42 U.S.C. § 1988(b).

We deny this request, without prejudice to renewal, because Plaintiff is

not, at this point, a prevailing party. See Hervey v. Estes, 65 F.3d 784,

792 (9th Cir. 1995) (“Section 1988 does not provide for attorney fees

when a party merely establishes a right to trial.”).