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Cortez v. Skol

United States Court of Appeals, Ninth Circuit

January 26, 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

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.

Page 1049

I. Background


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