Marty Cortez v. Bill Skol
2015 U.S. App. LEXIS 1178
9th Cir.2015Background
- Inmates Philip Cortez, Juan Cruz, and Steven Lavender (detention unit, high-security) were restrained in belly chains but not leg irons for visitation at Arizona’s Lewis Prison; escorts to visitation go through an isolated, camera-unseen path called “no man’s land.”
- Corrections Officer Bill Skol escorted the three inmates back alone; a conflict erupted and Cruz and Lavender beat and stomped on Cortez while he lay face-down and handcuffed, causing severe permanent brain injury.
- Skol reported calling for backup, issuing verbal commands, and using three one-second bursts of pepper spray before backup subdued the attackers; witnesses give differing accounts of compliance and the need for physical subdual.
- Plaintiff (Cortez’s mother, on his behalf) sued under 42 U.S.C. § 1983 for failure to protect (Eighth Amendment) against Skol and asserted a state-law gross negligence claim against Arizona; the district court granted summary judgment to defendants.
- The Ninth Circuit found genuine disputes of material fact about (a) whether escorting three volatile detention inmates alone through no man’s land posed a substantial risk, (b) whether Skol subjectively knew of the risk (hostility among inmates, Cortez’s perceived protective-custody status, policy on leg restraints), and (c) credibility conflicts about why Skol escorted alone and his conduct during the assault.
- Because triable issues exist on both deliberate indifference and gross negligence theories, the Ninth Circuit reversed summary judgment and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether escorting three detention inmates alone through no man’s land created an objectively substantial risk of serious harm | Skol’s solo escort of volatile, hostile inmates out of camera/staff view without leg restraints created a substantial risk | Escort was permissible under defendant’s understanding of policy; prior solo escorts had been safe | Issue for jury: sufficient evidence of substantial risk to survive summary judgment |
| Whether Skol acted with deliberate indifference (subjective awareness of risk) | Skol knew or should have known of harassing talk, Cortez’s protective-custody status, and restraint-policy requirements but still proceeded | Skol denied awareness of hostility, contested applicability of leg-iron policy, claimed exigent reasons for solo escort | Issue for jury: credibility and evidence permit inference of deliberate indifference |
| Whether inconsistencies in Skol’s reports and witness testimony defeat his credibility and support Plaintiff’s claims | Inconsistent accounts about why Skol escorted alone and about inmate compliance support disbelief of Skol’s professed ignorance | Defendants rely on Skol’s incident report and deposition statements | Court: credibility issues create triable fact disputes; not resolved on summary judgment |
| Whether the State is liable for gross negligence based on employee conduct and prison policies | State may be liable for aggregate staff actions (failure to apply leg irons, any informal directive) under Arizona gross negligence standard | State argued summary judgment appropriate | Court: gross negligence claim survives because Arizona standard is easier to meet and factual disputes exist |
Key Cases Cited
- Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment duty to protect; deliberate indifference standard)
- Walls v. Ariz. Dep’t of Pub. Safety, 826 P.2d 1217 (Ariz. Ct. App. 1991) (definition of gross or wanton negligence under Arizona law)
- Braillard v. Maricopa Cnty., 232 P.3d 1263 (Ariz. Ct. App. 2010) (contrast between gross negligence and deliberate indifference)
- Rourk v. State, 821 P.2d 273 (Ariz. Ct. App. 1991) (agency liability based on aggregate employee knowledge and conduct)
- Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134 (2d Cir. 1981) (agency liability principles cited for state liability)
- Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013) (summary judgment standard review)
- Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010) (definition of genuine issue of material fact)
- Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995) (attorney fees under § 1988 require prevailing-party status)