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.”).