Palmer et al v. State of Arizona et al

Filing 220

ORDER denying 167 Motion for Summary Judgment. Signed by Judge John W Sedwick on 4/25/12.(JWS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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GLENDA PALMER, et al.,
Plaintiffs,

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vs.
STATE OF ARIZONA, et al.,

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Defendants.
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2:09-cv-01791 JWS
ORDER AND OPINION
[Re: Motion at Docket 167]

I. MOTION PRESENTED

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At docket 167, defendant Robert Stewart (“defendant” or “Stewart”) moves for

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summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs Glenda

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Palmer, et al. (“plaintiffs”) oppose the motion at docket 191. Stewart’s reply is at docket

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206. Plaintiffs’ authorized sur-reply is at docket 214. Oral argument was requested but

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would not assist the court.

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II. BACKGROUND

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Timothy Lucero (“Lucero”) was murdered while in custody of the Arizona

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Department of Corrections. Lucero was originally held in the Special Management Unit

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1 (“SMU-1") at the Arizona State Prison Complex (“ASPC”)-Eyman. Stewart was the

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warden at ASPC-Eyman. SMU-1 was a Level 5, maximum security unit. Tara Diaz was
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a deputy warden and supervisor of SMU-1. Lucero was in SMU-1 from October 5, 2007

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until May 14, 2008. On May 14, 2008, Lucero was transferred to the Cimarron Unit at

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ASPC-Tuscon. The Cimarron Unit was a Level 3/4 unit. Lucero was murdered there on

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September 4, 2008.

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Prior to his transfer, on December 4, 2008, Lucero told prison officials that he

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had information about the murder of another inmate, Christopher Wathan (“Wathan”),

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and the involvement of the Aryan Brotherhood prison gang. On January 25, 2008,

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Lucero told an official that the gang had ordered him to murder Wathan, but that he

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refused, putting his own safety at risk. Lucero was subsequently interviewed. The first

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interview was conducted on January 30, 2008 and was attended by John Ballos, a

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Yuma County Attorney; Henry Ross (“Ross”), a special investigator with the Arizona

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Department of Corrections; and Preston Gamblin (“Gamblin”), a correction officer at

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ASPC-Eyman.1 Lucero repeatedly stated his belief that he would be murdered for

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revealing information about the Aryan Brotherhood prison gang and its involvement in

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Wathan’s murder.

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On February 27, 2008, Chief Criminal Deputy Yuma County Attorney Roger

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Nelson (“Nelson”) wrote a letter to Ross in which he stated that the Yuma County

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Attorney’s Office believed that Lucero was in danger and needed to be transported to a

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prison outside Arizona.2 Ross faxed the letter to Robin Smithson, Stewart’s

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administrative assistant, on March 5, 2008.3 Smithson stated in her deposition that the

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Gamblin is also a defendant to this action.

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Doc. 168-1 at 32.

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The fax is erroneously addressed to “Robert Smithson.” Id. at 29.

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letter was placed on Stewart’s desk.4 Stewart maintains that the letter was faxed from

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his office to SMU-1 on the same day.5

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Stewart followed up with Diaz via e-mail on March 22, 2008, after receiving a call

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from Ross. Diaz responded that she was unaware of the letter. Stewart did not

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respond.6 On March 25, 2008, Diaz responded again and told Stewart that Lucero was

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a “[protective segregation] status inmate housed in Wing classified as Max/4 [as] of

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1/4/08.”7 Diaz assumed that Lucero was in protective segregation based on his being

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housed in Wing 4.8 Diaz did not learn that she was mistaken–Lucero was in the general

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population–until after Lucero’s death.9

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Glenda Palmer is Lucero’s mother. She filed suit on behalf of Lucero’s estate,

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along with Lucero’s father and daughter, in Arizona state court in July of 2009. The

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case was promptly removed to federal court. Plaintiffs asserted claims pursuant to 42

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U.S.C. § 1983 and 42 U.S.C. § 1985, in addition to various common law torts. The only

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claim remaining against Stewart is a 42 U.S.C. § 1983 claim based on an alleged

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violation of the Eighth Amendment.

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III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.”10 The

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materiality requirement ensures that “only disputes over facts that might affect the

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Doc. 192-2 at 81.

Doc. 168-1 at 29. The evidence that it was faxed to SMU-1 is a fax cover sheet
indicating transmission to Smithson, with a handwritten note that it was “faxed to SMU-1" with
an illegible signature. Id.

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Doc. 168-1 at 41.
Id. at 34.

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Id. at 41.

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Id.

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Fed. R. Civ. P. 56(a).

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outcome of the suit under the governing law will properly preclude the entry of summary

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judgment.”11 Ultimately, “summary judgment will not lie if the . . . evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.”12 In resolving a motion

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for summary judgment, a court must view the evidence in the light most favorable to the

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non-moving party.13 The reviewing court may not weigh evidence or assess the

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credibility of witnesses.14 The burden of persuasion is on the moving party.15
IV. DISCUSSION

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A. 42 U.S.C. § 1983 Claim
Plaintiffs’ § 1983 claim against Stewart is premised on an alleged violation of the

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Eighth Amendment. “Prison officials have a duty to protect prisoners from violence at

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the hands of other prisoners.”16 A failure to fulfill that duty violates the Eighth

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Amendment if the deprivation alleged is “sufficiently serious” and the product of

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“deliberate indifference” on the part of the prison official.17 Deliberate indifference is

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akin to recklessness.18 It is established where the prison official is “aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and he

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. . . draw[s] the inference.”19

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Id.

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Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).

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Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting Farmer v. Brennan,
511 U.S. 825, 833 (1994)).
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Farmer, 511 U.S. at 834.

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Id. at 836.

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Id. at 837.

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Stewart argues that no reasonable jury could conclude that he was deliberately

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indifferent to Lucero’s safety. Stewart bases his argument on contentions that “[t]here is

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no evidence that Stewart actually knew about the risk to Lucero until . . . March 22,

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2008" and that in response to his query on that date, Diaz told him that Lucero was

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already in protective segregation.20 He also argues his duty to protect Lucero was

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delegated to Diaz on March 5, 2008, when the letter describing potential danger to

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Lucero was allegedly faxed to SMU-1.

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As a threshold matter, Stewart’s argument cuts two ways. Stewart claims there

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is no evidence he knew anything of the danger to Lucero until March 22, 2008. If that

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was the case, however, he could not have meaningfully delegated any duty to Diaz on

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March 5, 2008.

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Plaintiffs point out that Diaz had no record of any fax transmission,21 and Stewart

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did not respond to Diaz’s follow-ups to his e-mail of March 22, 2008. If Stewart was

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aware of the letter, and failed to take any action for approximately two weeks, and even

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then did not respond to Diaz’s requests for more information, that sequence could

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support a potential finding of deliberate indifference. If the letter was faxed from his

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office to SMU-1 on March 5, 2008, a reasonable jury could conclude that Stewart was

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aware of its content and the question is whether a reasonable jury could find that

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Stewart was deliberately indifferent based on his subsequent communications with Diaz.

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Stewart argues that evidence that Diaz followed up verbally–and corrected her

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mistaken assertion that Lucero was in protective segregation–is inadmissible double

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hearsay. Even if that evidence is inadmissible, it is not necessary for plaintiffs’ claims

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against Stewart to survive summary judgment. A reasonable jury could conclude,

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based on the evidence discussed above, that Stewart was aware of Ross’s letter and

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consequently draw the inference that there was a substantial risk of harm to Lucero.

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Doc. 167 at 6–7.

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Doc. 168-1 at 41.

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Even if the letter was faxed to SMU-1 on the date it was received in Stewart’s office, the

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only subsequent communication from Stewart requested more information and indicated

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he wanted to speak with Diaz about Lucero the following Monday.22 Moreover, Diaz’s

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responses make clear that she was unaware of the potential danger to Lucero.23 It is

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unclear how Stewart could have satisfactorily discharged his duty to protect Lucero from

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other prisoners by delegating responsibility to Diaz when Diaz was herself uninformed.

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Stewart is not entitled to summary judgment on plaintiffs’ 42 U.S.C. § 1983 claim.
B. Qualified Immunity

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Because qualified immunity is “an entitlement not to stand trial or face the other

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burdens of litigation,”24 courts must resolve “immunity questions at the earliest possible

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stage in litigation.”25 This case has been in federal court since 2009. Nonetheless,

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Stewart argues he is entitled to qualified immunity and that summary judgment is

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appropriate on that ground.

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“An officer will be denied qualified immunity in a § 1983 action only if (1) the facts

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alleged, taken in the light most favorable to the party asserting injury, show that the

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officer’s conduct violated a constitutional right, and (2) the right at issue was clearly

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established at the time of the incident such that a reasonable officer would have

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understood her conduct to be unlawful in that situation.”26 District courts may exercise

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“discretion in deciding which of the two prongs of the qualified immunity analysis should

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be addressed first.”27

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Id. at 34.
Id.
Saucier v. Katz, 533 U.S. 194, 200 (2001).

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Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotations omitted).

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Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011).

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Pearson, 555 U.S. at 236.

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Here, the facts that plaintiffs have alleged would support a violation of Lucero’s

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Eight Amendment right to be free from cruel and unusual punishment. Taken in the

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light most favorable to plaintiffs, plaintiffs’ allegations would support a finding that

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Stewart was deliberately indifferent to Lucero’s safety. Moreover, a prisoner’s right to

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be free from violence at the hands of other prisoners was clearly established when

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Stewart learned of the potential danger to Lucero. Taken in the light most favorable to

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plaintiffs’, the facts alleged are such that Stewart would have been aware his conduct

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was unlawful. Consequently, Stewart is not entitled to qualified immunity.

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C. Punitive Damages

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Stewart argues that plaintiffs’ claim for punitive damages must be dismissed. “[A]

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jury may be permitted to assess punitive damages in an action under § 1983 when the

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defendant’s conduct is shown to be motivated by evil motive or intent, or when it

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involves reckless or callous indifference to the federally protected rights of others.”28

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Stewart argues that there is no evidence that he acted with evil intent or callously.29

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However, as discussed above, deliberate indifference and recklessness are similar

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standards. If a jury concludes that Stewart was deliberately indifferent to Lucero’s

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safety, it could also conclude that he was recklessly indifferent to Lucero’s Eighth

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Amendment rights.

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V. CONCLUSION
For the reasons above, Stewart’s motion for summary judgment at docket 167 is
DENIED.
DATED this 25th day of April 2012.

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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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Smith v. Wade, 461 U.S. 30, 56 (1983).

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Doc. 167 at 9.

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